Law of Wills, 2016A

Chapter Four: The Intestacy System (Marital and Adopted Children)
4.1 Introduction
This chapter examines the inheritance rights of what I refer to as first tier children, marital
children and adopted children. Under the intestacy system, children born during the marriage are
heirs of their mothers and their fathers. These children receive preference over other classes of
children and they do not have to take additional steps to acquire the right to inherit. One argument
in favor of this preference for marital children is that they are third party beneficiaries of the marital
contract between their parents. In addition, it is reasonable that a man would want his marital
children to inherit his estate because those are the children with whom he usually has a relationship.
Under the marital presumption of paternity doctrine, children born during the marriage are the
children of a woman’s husband even if the child is a result of an extra-marital affair. The
presumption can be rebutted by DNA testing showing that the man and the child are not
genetically-related. However, some jurisdictions have adopted the best interests of the child marital
presumption. That system only permits the paternity of the child to be rebutted if it is in the child’s
best interests to do so. It is seldom in the child’s best interests to be declared a nonmarital child.
Adopted children are treated the same as marital children.
4.2 Marital Children
The only legal issue that may come up with regards to marital children pertain to children
born after the death of their mother’s husband.
4.2.1 Posthumously Born Children
It is well settled, that posthumously born children are treated the same as children that are
alive at the time that the testator dies. In older cases, courts allowed an unborn child to inherit if the
child was born within the gestation period without requiring the child to be born within a specific
time. Modern courts have recognized a rebuttable presumption that the generally accepted gestation
period is 280 days. Thus, if the child is born after the 280 days, the child or the child’s parent or
guardian has the burden of rebutting the presumption. Failure to rebut the presumption results in an
inability to inherit from the deceased man. However, according to the Uniform Parentage Act, the
court should recognize a rebuttable presumption that a child born to a woman within 300 days after
the death of her husband is a child of the deceased husband. Currently, most jurisdictions have
followed the UPC approach and conditioned the ability to inherit upon the child surviving his or her
father by a certain period of time. Therefore, a key issue with regards to the inheritance rights of the
posthumously born child is whether or not the child was born within the statutorily defined time
period.
Morrow v. Scott, 7 Ga. 535 (Ga. 1849)
MERRIWETHER, J.
Ewing T. Morrow died intestate, leaving a large estate. His next of kin, and distributees at law, were
his first cousins, of whom several were in life. Within the period of gestation after his death, Mary
128