The Rights of Illegitimate Children to Inherit the Estate of Their Deceased Father

By Stephanie Kurose, J.D.

The Rights of Illegitimate Children to Inherit the Estate of Their Deceased Father

By Stephanie Kurose, J.D.

Today, every state has a process in place for illegitimate children to claim their rights to inherit from their father. However, this has not always been the case.

Woman holding an infant wearing a bow

Throughout history, illegitimate children—or children born out of wedlock—were treated harshly under the laws of inheritance and property rights. They often were denied any rights at all to inherit from their unmarried parents. However, as time passed children born out of wedlock began to receive some inheritance rights. But these rights were still much more limited than those of children born to married couples. Two key Supreme Court cases ensured more protection under the law for children born to unmarried parents.

Illegitimacy Defined

An illegitimate child is a child born to parents who are unmarried at the time of birth. Even if the parents get married later, the child is still considered illegitimate. Many states have abandoned the use of the term "illegitimate" due to its negative connotations. Instead, they use the terms "out of wedlock" or "non-marital" children.

Historically, these children had no legal rights to their parents' estates. Under common law, a child born out of wedlock was not a legal child of either parent. Thus, they had no right to parental support or property. Fathers who did not wish to acknowledge their non-marital children could typically disinherit them.

Equal Protection

By the 20th century, there was a large increase in the number of unwed couples having children. As a result, many states amended their laws to give non-marital children the right to inherit property through one or both parents. Some states, however, retained laws that limited the legal rights of an illegitimate child.

Then, the U.S. Supreme Court in Levy v. Louisiana (1968) ruled that a state could not deny illegitimate children their rights based on their legitimacy under the Equal Protection Clause. The Equal Protection Clause forces governments to govern impartially, meaning that they cannot draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective. Almost ten years later, the Supreme Court struck down a similar law in Trimble v. Gordon (1977). This law denied a child born out of wedlock the right to inherit from her father unless there was a provision in his will. These two cases established the right of non-marital children to at least some form of legal inheritance.

Modern Law

Today, every state gives an illegitimate child the right to inherit from their maternal relatives. However, it is generally more difficult to establish the right to inherit from a child's unmarried father. Most states do not automatically presume that the child is the legal child of their father. In these states, paternity must be established. However, it should be noted that many of these same states require that paternity be proven during the father's lifetime.

Proof of paternity that is generally accepted in court includes documentation of a subsequent marriage to the child's mother, the father's legal acknowledgment of paternity, or a positive DNA match.

If you have any questions about inheritance rights or would like additional information, reach out to an online service provider who can help answer your questions.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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