Children are born inside and outside of marriage every day. Historically, both society and the law treated a child born outside a marriage unfairly. They had no right to inherit from either parent, in many cases. Eventually, children had the means to inherit from their mothers, but rarely their fathers. In the late 1960s, the laws changed.
The legal treatment of children born outside of a marriage is governed by state inheritance law. In most cases, the law has evolved over time to allow children to inherit from their fathers if they can prove paternity. It is essential to understand your rights as a child born outside of marriage so you can assert them upon the death of your father. It is important for everyone to understand their rights and how they are defined. Like all other lawful heirs, children born outside of marriage have the right to contest a Last Will and Testament. In addition to inheritance through a Will, children born outside of marriage:
- May be eligible for life insurance or Social Security benefits
- May be eligible for payments from their parents’ private or government benefits
What happens if someone dies without a will?
When someone dies without having a Last Will and Testament, they are said to have died intestate. When this happens, the state follows default probate laws to determine who inherits. Children born outside of marriage usually have the same legal rights as children born inside of a marriage in this situation. Establishing paternity is usually the obstacle. The rules for establishing paternity vary by state, but as an example, in California, there are three ways:
- The probate court must have a court order issued when the father was alive.
- There is clear and convincing evidence that the father acknowledged the child during their lifetime.
- There is clear and convincing evidence that the father’s paternity exists, but the father could not acknowledge the child.
Meeting one of the criteria means the child can inherit intestate in California.
Cal. Prob. Code § 6453 (2019).
Here is another example from Arkansas. Meeting or doing any of these will prove paternity:
- The court establishes paternity through a court order
- The father’s name is on the birth certificate.
- The mother married the father before the child’s birth.
- The mother and father attempted to marry before the child’s birth.
- The father acknowledged in writing that he is the father.
- The man is obligated to provide child support for his child under a written court order.
AR Code § 28-9-209 (2019).
However, in other states, if a man rebuts a presumption that he is the father of a child, only DNA is sufficient evidence to overcome the rebuttal. When the father is no longer alive, comparing the child born outside of marriage’s DNA to the DNA of siblings can establish paternity. If the decedent was buried, the body is rarely exhumed.
In many states, as in California, if the deceased father acknowledged the child during his lifetime, this is evidence of paternity. A signed statement is the strongest form of acknowledgment. Another way to show acknowledgment is if a father willingly allows his name to be put on the birth certificate.
How can a child born outside a marriage contest a will?
As previously states, one of the rights of all heirs, including children born outside of a marriage, is the ability to contest a will. How you go about this process varies by state. The first step is to establish paternity. Most states allow more time to establish paternity than other types of judicial proceedings. This timing should be kept in mind as different default rules, and statutes of limitations determine a contest’s timing.
How advance planning can be your best strategy to protect a child born outside a marriage
Planning in advance by having a well-thought-out estate plan can be your best strategy. Your Last Will and Testament should name each of your heirs and specify exactly what you want them to inherit. Many families add to the stress of the probate process because they feel it is important to maintain silence about the paternal status of children born outside a marriage. Subsequent will contests and attempts to establish paternity can lengthen the probate process.
If you want to protect your family and children and ensure that you have a comprehensive estate plan, please contact our office and make an appointment. We will assist you in developing a strategy that satisfies your desires while providing peace of mind to your family.