Law of Wills, 2016A

intestacy succession rules.
Affirmed.
Notes, Problems, and Questions
1. In Fleming, the Court ruled that because Thomas died intestate without any legal heirs his estate
should escheat to the State of Washington. Why was Thomas’ half-brother prevented from
inheriting? Did the Court correctly decide that issue?
2. In Fleming, Thomas was never adopted. He remained in the permanent custody of the Catholic
Charities of the Diocese of Seattle. Should an exception have been made to permit his mother to
inherit? Should the estate have been given to the charity instead of the state?
3. In New Jersey Div., why was the decedent’s mother prevented from inheriting his estate?
4. In the above-cases, the biological mothers were not permitted to take under the intestacy system.
The legal definition of parent varies. Some states have started recognizing an expansive definition of
“parent” for purposes pertaining to custody and child support. These theories of parenthood focus
upon the benefit that broadly defining “parenthood” provides for children. Nevertheless, if courts
rely upon factors other than biology and adoption to establish the legal parent-child relationship,
that may impact the ability of adults to inherit from children. A few of those theories are set-forth
below.
(1) Psychological Parent- Professor Katharine T. Bartlett is one of the main proponents of the
recognition of a psychological parent. According to Professor Bartlett, a psychological
parent is an adult who assists in the provision of necessities that would typically be supplied
by a child’s nuclear family. These needs may be physical, emotional and/or social. Professor
Bartlett has suggested the use of a three-part test to identify a potential psychological parent.
In order to be recognized as a psychological parent, the adult must satisfy three conditions.
First, the adult must be in physical possession of the child for at least six months prior to
seeking parental status. Second, when seeking parental status, the adult must be motivated by
a desire to take care of the child and the child must consider the adult to be his or her
parent. Finally, the adult seeking parental status must prove that his or her relationship with
the child was the result of the legal parent’s consent or a court order.
(2) Functional Parent- The functional parent is similar to the psychological or social parent. The
focus is on the actions the person takes after the birth of the child. This theory of parentage
has been put forth by Professor Nancy Polikoff. According to Professor Polikoff, in order
for a person to be classified as a functional parent, the child’s legally recognized parent must
create a relationship between the child and that person. In addition, the legal parent must
intend for that relationship to be parental in nature. Finally, the person must maintain a
functional relationship with the child.
(3) Intentional Parent-The focus is upon the person’s behavior prior to the birth of the child.
Courts have taken this approach when determining maternity in surrogate cases. The inquiry
is whether the person acted in such a way to indicate that he or she intended to parent the
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