Law of Wills, 2016A

Notes and Questions
1. Evaluate the above statutes in light of the legislative mandate to balance the interests of the state,
the non-marital child and the marital child.
2. Are there any legitimate reasons to treat paternal inheritance different from maternal inheritance?
3. What public policy or state interest is promoted by each of the above statutes?
4. A key purpose of the intestacy system is to carry out the presumed intent of the decedent. Is that
purpose promoted by the mandates of the above statutes?
5. What factors should the probate court be permitted to consider in deciding how to distribute a
man’s estate under the intestacy system?
6. In the majority of jurisdictions, in order for the non-martial child to inherit from his or her father,
he or she must prove paternity. What methods of proof should be acceptable? See Malone vs. Thomas,
24 S.W.3d 412 (Tex. App-Houston (1 Dist.) 2000).
7. Illegitimacy is a suspect classification entitled to strict scrutiny. See Taylor v. Hoffman, 544 S.E.2d
387 (W. Va. 2001). Should the status of illegitimacy be on par with race or other protected classes?
6. In some jurisdictions, the non-marital child must be legitimized in order to have the right to
inherit from his or her father. Should the doctrine of equitable legitimacy be recognized to satisfy
the statutory requirement? Consider the following example. Emma and Jarvis lived together, without
the benefit of marriage, for almost twenty-six years. They were the parents of two adult children and
five grandchildren. The couple and their children have always functioned as a family. Jarvis died
intestate. He was survived by Emma, their two children, their five grandchildren. Jarvis was also
survived by his two sisters. In order to inherit from Jarvis, the children had to be legitimized prior to
his death. The statute sets out the steps the children needed to take to be considered legitimate. In
order to be fair to the non-marital children and to carry out the presumed intent of Jarvis, should the
court be able to use its equitable powers to declare them to be legitimate?
5.3 Stepchildren and Foster Children
In the majority of jurisdictions, stepchildren and foster children are not entitled to inherit
from stepparents and foster parents. Nonetheless, if the decedent is not survived by any other heirs
related to the decedent by blood or adoption, the stepchildren and/or foster children may be
allowed to inherit from the decedent’s estate. In those jurisdictions, the only time that stepchildren
or foster children can inherit is if it is necessary to avoid having the property escheat to the state.
5.3.1 Stepchildren/Foster Children are not entitled to inherit
When people hear the word “stepparent”, the images of Cinderella’s cruel stepmother and
stepsisters come to mind. The Cinderella story focuses upon the discord that can exist in a blended
family. Cinderella and her stepmother did not have a loving parent-child relationship. This vision of
blended families may contribute to the treatment of stepchildren with regards to inheritance. The
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