Law of Wills, 2016A

Chapter Five: Intestacy (Non-Marital Children, Stepchildren and Foster
Children)
5.1 Introduction
This chapter examines the rights of three categories of children who are treated like
outsiders. These children are punished because of the actions of their parents. The deterioration of
the institution of marriage created two new classes of children—non-marital children and step
children. For inheritance purposes, non-marital children are treated like second tiered children. A
child who is not genetically related to a woman’s husband has the opportunity to inherit from that
man because of the marriage. However, a child born outside of the marriage may not be able to
inherit from his biological father unless his mother jumps through some extra hoops.
When the intestacy system was created, non-marital children were called bastards and had
basically no legal rights. The man did not have to provide any type of support for the children he
conceived with a woman who was not his wife. Those children were considered to be the children
of no one. Therefore, they were not legally entitled to child support or legally able to be heirs. 29 If an
unmarried woman died giving birth to a child, that child was forced to reside in an orphanage home
or to live on the streets. The child suffered that fate even if the child’s father was a wealthy man.
There was a no great outrage or objection to that practice because children born out of wedlock
were considered to be the products of sin. As more and more people chose to openly have children
without the benefit of marriage, the plight of non-marital children could not be ignored. Society
recognized the need to ensure that those children were not disadvantaged because of the
circumstances of their births. It took years of litigation, but the stigma of illegitimacy was eventually
removed from the non-marital child. Currently, all fifty states and the District of Columbia have
intestacy statutes giving non-marital children the opportunity to inherit from their parents. Thus, the
nature of the litigation has changed. Recent cases address the ability of non-marital children to take
the steps necessary to have the chance to inherit from their fathers.
My father was my mother’s third husband. When my parents married, my mother had three
small children. As a result of their marriage, my parents conceived nine children. We all grew up
together as a family. I did not make any distinction between my half-siblings and my whole siblings.
Nonetheless, when my father died, his estate was divided into nine parts instead of twelve parts. The
courts did not take into consideration that my half-siblings were really young when my parents
married or the fact that my father had a close relationship with my half-siblings. The courts were
bound by the law that stated that stepchildren were not heirs of their stepparents. In this context,
the legal parent-child relationship necessary for my half-siblings to inherit from my father did not
exist even though a parent-child relationship did exist. Studies show that a majority of children in
the United States will live in blended families. Thus, there is a push to put stepchildren on par with
biological children for intestacy purposes. I have included a discussion of the inheritance rights of
foster children in this chapter because the foster care system is changing. Children are staying longer
in the same foster homes and becoming part of their foster families. Therefore, the foster parentfoster
child relationship resembles a parent-child relationship.
29
1 William Blackstone, Commentaries on the Laws of England 447 (William S. Hein & Co., Inc. 1992).
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