Law of Wills, 2016A

the statute, she was not given the opportunity to inherit from her biological father. The intestacy
system is set up to give preference to the decedent’s children. Nonetheless, the Plaintiff in the
Ledford case lost her inheritance to her father’s siblings and his nieces and nephews. It is unlikely that
the decedent would have wanted his estate distributed in that manner. The facts of this case illustrate
the problem faced by numerous non-marital children. It is not enough to give non-marital children
the opportunity to inherit from their fathers if they do not understand the steps necessary to take
advantage of that opportunity.
In order to make informed decisions, parents of non-marital children should know all of the
facts and rules. State intestacy laws can be confusing. For instance, many low-income women may
believe that if the father's name is on the birth certificate, the non-marital child has the right to
inherit from his or her father. As a result, such women do not bother to file paternity actions as
required by most state statutes. In reality, only two states, Arkansas and Georgia, deem the father's
name on the birth certificate as sufficient proof of paternity to permit a non-marital child to inherit
from his or her father. In both states, the father's name cannot be placed on the birth certificate
without his knowledge and consent.
Women who live in common law marriage jurisdictions are also disadvantaged by lack of
access to information. Many women living in those states believe that if they live with a man for a
long period of time, they are automatically deemed to be married. Those women do not realize that,
if they do not take the steps necessary to have their relationships legally recognized as common law
marriage, their children are considered non-marital children. Consequently, the women do not take
the actions necessary to ensure that their children will have the legal right to inherit from their
fathers.
Non-marital children often lose the right to inherit from their fathers because of the
ignorance of their parents. In the probate arena, knowledge is power; therefore, states should take
steps to make sure that parents understand the steps they need to take in order to enable non-marital
children to inherit from their fathers. There are actions states can take to get the necessary
information to the public. For instance, states could run public service announcements on local
television and radio stations. Public service announcements could inform women about the legal
consequences of having a child out of wedlock and educate parents about the steps they must take
under the state's intestacy statute to make the non-marital child eligible to inherit from his or her
father. States could also require organizations that provide services to low-income women to
distribute pamphlets containing information about the state's intestacy laws. The pamphlets could
include a checklist of the requirements for a non-marital child to earn the right to inherit from his or
her father. In order to guarantee fairness, states should arm parents of non-marital children with the
information necessary to protect the inheritance rights of those children.
Notes and Questions
1. What steps can state legislatures take to ensure that the families of non-martial children are
informed about their rights and responsibilities?
2. Should mothers have the right to waive the non-marital child’s right to inherit?
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