Law of Wills, 2016A

5.2 Non-Marital Children
Most of the current litigation in this area involves the non-marital child’s right to inherit
from his or her father. In order for the non-marital child to be considered an heir under the
intestacy system, a father-child relationship must exist. The legal issues relevant to the discussion are:
(1) Whether the intestate statute at issue satisfies the mandates established by the United States
Supreme Court cases; (2) Whether the non-marital child has sufficiently complied with the intestate
statute to have earned the opportunity to inherit from his or her parent; and (3) Whether the nonmarital
child should be given the chance to inherit through his or her parent.
Every time the state expands the definition of “child” for inheritance purposes, it decreases
the inheritance rights of marital children. Accordingly, the state legislature must balance the
inheritance rights of various groups of children while promoting the state’s interest in an orderly
probate process. When reading the materials in this section, you should think about the interests that
have to be balanced. In deciding how to distribute the property of a man who dies intestate, the state
must consider three important interests: (1) the state’s interests in the orderly disposition of after
death property; (2) the non-marital child’s interest in acquiring the chance to inherit from his or her
father; and (3) the marital children’s interest in reducing the number of persons claiming an interest
in the man’s estate.
Starting in the late 1960’s, the United States Supreme Court considered several cases
involving the legal rights of non-marital children attempting to receive financial benefits based upon
their connections to their biological fathers and their mothers. The holdings in those cases paved the
way for the Supreme Court to conclude that non-marital children must be given the opportunity to
inherit from their mothers and fathers. In response, the state enacted statutes setting out the
conditions that have to be met in order for non-marital children to inherit from their mothers and
fathers. The state legislatures either concluded that the mother-child relationship was established by
the process of birth or explicitly granted the non-marital child the right to inherit from his or her
mother. The non-marital child’s right to inherit from his or her father was not so easily resolved.
The states enacted statutes enumerating the conditions the non-marital child has to meet in order to
establish the father-child relationship for inheritance purposes. The following cases set out the
parameters state intestacy statutes have to meet in order to survive constitutional challenges by and
on behalf of non-martial children.
5.2.1 The Right to Inherit From Mothers
In light of the old adage, “mama’s baby, papa’s maybe,” it would appear that the non-marital
child’s ability to inherit from his or her mother would be a foregone conclusion. Nonetheless, nonmartial
children had to fight to be recognized as the heirs of their mothers. In fact, the early cases
dealing with the rights of non-marital children focused upon the legal rights attached to the motherchild
relationship. Getting courts to recognize that relationship was crucial to non-martial children
who wanted the opportunity to inherit from and through their mothers. Those initial cases involved
tort law. The principles established in those cases paved the way for legislatures to acknowledge that
non-marital children have a right to be financially supported by their mothers. That right to support
has extended to a right to be considered an heir under the intestacy system. An example of such a
case follows.
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