An important question in inheritance law is whether a child has the right to inherit from his or her parent. A parent can decide in most states whether or not his or her adult children will receive any inheritance from him or her by making a will with these instructions. However, if the person dies without a will, state law dictates whether the children receive an inheritance. The legitimacy of a child can be part of this determination.

Illegitimacy Defined

An illegitimate child is born to parents who are not married to each other at the time of the child’s birth. Even if the parents later married, the child would still be considered illegitimate. Children who were born during a marriage that was later annulled were historically considered illegitimate. However, many state laws were modified to make the children legitimate in these situations. This child was considered the child of no one. He or she had no legal rights to inherit from either parent.

Historical Context

Historically, there was a significant difference in the legal rights provided to legitimate children than to illegitimate children. In the past, illegitimate children had no legal rights to their parents’ estates. Children born outside of marriage often had no status in society. Expectant parents were often concerned about getting married before the child was born so that the child would be considered legitimate and so that his or her inheritance rights were preserved. Fathers who did not want to acknowledge these children born out of wedlock could typically disinherit children who were not legitimate. The father of an illegitimate child legally owed no duty of support for an illegitimate child. In more recent years, there has been a shift with illegitimate children having the same legal rights to illegitimate children. The role of legitimacy has a different effect on a child’s inheritance rights than it once did. However, inheritance laws are typically based on state law, so it is important to be familiar with the law in the state where the child’s interest may lie.

Equal Protection Laws

Many states modified their laws to give illegitimate children the right to inherit through one or both parents by the 20th century. Some states still had laws that limited the legal rights of an illegitimate child. The United States Supreme Court ruled that state laws that denied illegitimate children rights based solely on their illegitimate status were unconstitutional under the Equal Protection Clause of the federal Constitution. In a 1977 United States Supreme Court case, the court struck down a state law that did not give a legitimate child the right to inherit from her father unless there was a provision in his will for an inheritance.

Modern Approach

While at common law, the child was considered the child of no one, the modern approach is to consider the child the biological mother’s child. This means that the child has a right to inherit from his or her biological mother unless there was an adoption where the mother did not remain a legal parent.

However, the approach regarding whether a child has the right to inherit from his or her father is not consistent through different states. Many states do not consider an illegitimate child to be the legal child of his or her father. However, there may be ways to establish the legal relationship, such as allowing the child to present evidence of this relationship. In many states, if the father publicly accepted that he was the child’s father, the child may have the right to inheritance. Other ways that the child may establish paternity and be able to acquire inheritance rights include if the father later married the child’s mother or there was a judicial proceeding establishing paternity. Paternity usually has to be established during the father’s lifetime for the child to acquire inheritance rights. However, some states allow the child to establish paternity through DNA testing after death.

Under the Uniform Probate Code, there is a presumption of paternity when the father treats the child as his own and provides support for him or her. Some jurisdictions infer paternity if the relatives of the father treat the child as the father’s child.

Uniform Parentage Act

Under this Act, a presumption of paternity exists when the father takes the child into his home and raises the child as his or her own or if the father files necessary documents with a court or administrative agency based on state laws. If there is a presumption of paternity, the child can bring an action to establish paternity without limitation. However, if there is no presumption, this action must be brought within three years of the child reaching the legal age of an adult.

Other Applications

Even in states where illegitimate children have the same inheritance rights as legitimate children, there may be other impacts due to a lack of legitimacy. For example, survivor benefits for pension rights may only provide benefits to legitimate children. The receipt of survivor Social Security benefits depends on whether a child is considered legitimate or whether steps based on state law have been taken so that the child has acquired inheritance rights.