Law of Wills, 2016A

Ohio Revised Code Annotated
2105.17 Capability of children born out of wedlock as to inheritance
Children born out of wedlock shall be capable of inheriting or transmitting inheritance from
and to their mother, and from and to those from whom she may inherit, or to whom she
may transmit inheritance, as if born in lawful wedlock.
2. Are there any legitimate reasons why non-marital children should not be given the opportunity to
inherit from their mothers? What factors should go into making that determination? Are there any
limitations that should be placed on the ability of non-marital children to inherit from their mothers?
See Byrd N. Trennor, 811 N.E.2d 549 (Ohio App. 2 Dist. 2004)(justifying the different in treatment,
for inheritance purposes, of non-marital children of intestate fathers and non-martial children of
intestate mothers).
3. The Levy court emphasized the need to prevent tortfeasors from injuring or killing parents of nonmarital
children without liability. In light of that concern, is the decision helpful to a non-marital
child attempting to inherit from his or her mother? What reasoning in the case supports a nonmarital
child’s right to inherit under the intestacy system?
5.2.2 The Right to Inherit From Fathers
A child does not have the right to inherit from a parent. However, if the intestacy system
permits one class of children to inherit, that right must be provided to all classes of children. Thus, it
is clear that a state statute that prohibits the non-marital child from inheriting from his or her father
will not pass constitutional muster. Hence, the question becomes: How much can a state limit a nonmarital
child’s right to inherit from his or her father. As the following cases indicate, the state has to
give the non-marital child a plausible opportunity to inherit from his or her parent.
Lalli v. Lalli, 439 U.S. 259 (1978)
Mr. Justice POWELL announced the judgment of the Court and delivered an opinion, in which THE
CHIEF JUSTICE and Mr. Justice STEWART join.
This case presents a challenge to the constitutionality of § 4-1.2 of New York’s Estates, Powers, and
Trusts Law, which requires illegitimate children who would inherit from their fathers by intestate
succession to provide a particular form of proof of paternity. Legitimate children are not subject to
the same requirement.
Appellant Robert Lalli claims to be the illegitimate son of Mario Lalli who died intestate on January
7, 1973, in the State of New York, Appellant’s mother who died in 1968, never was married to
Mario. After Mario’s widow, Rosamond Lalli, was appointed administratrix of her husband’s estate,
appellant petitioned the Surrogate’s Court for Westchester County for a compulsory accounting,
claiming that he and his sister Maureen Lalli were entitled to inherit from Mario as his children.
Rosamond Lalli opposed the petition. She argued that even if Robert and Maureen were Mario’s
children, they were not lawful distributes of the estate because they had failed to comply with § 4-
1.2, which provides in part:
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