There was a time when only legitimate children–i.e., children born to a lawfully married couple–could inherit property from a parent. Modern law in California and most states have largely eliminated the distinction between legitimate and illegitimate children, but it can still be an issue in some probate situations.
For example, a court in the Canadian province of Ontario recently denied a man a share of his late grandmother’s estate because he was born out of wedlock. The grandmother’s will, which she signed in 1977, left shares to each of her “children” or their descendants. Ontario law at the time defined “children” as only including those born in wedlock. Ironically, Ontario changed the law in 1978 to include illegitimate children, but the court in this case said that did not apply to pre-1978 wills.
Establishing Paternity When There is No Will
In drafting your own will, it is a good idea to define what you mean by “children.” You are free to exclude an adult child, legitimate or otherwise, from your will or trust. But you should be clear about who has rights to inherit from your estate.
If you fail to leave a will or trust, California intestacy law determines what happens to your probate estate. The law states that a natural child of a deceased individual has the right to inherit “regardless of the marital status” of the parents. While it is generally easy to establish a mother’s parental status, there are obviously many cases in which paternity is disputed. For purposes of intestacy law, California states a parent-child condition exists if any of the following conditions are met:
- A court has entered an order “during the father’s lifetime” establishing his paternity;
- There is “clear and convincing evidence” presented to the probate court that the father, while he was alive, “openly held out the child as his own”; or
- There is “clear and convincing evidence” of paternity, but the it was “impossible” for the father to acknowledge the child as his own.
The second standard–the father “openly” holding out the child as his own–can be the trickiest to prove in court. In a published 2015 decision, an appeals court here in San Diego held there must be an “affirmative representation of paternity that is unconcealed and made in open view.” In other words, it is not enough to privately acknowledge paternity; the deceased father must make some sort of “public” statement, although not necessarily “an announcement to the world, an official action, or an affectionate fatherly intent.”
Providing for Your Children’s Future
Again, intestacy law and its definition of children only come into play if you fail to take estate planning matters into your own hands. An experienced San Diego estate planning attorney can advise you on the best way of providing for all of your children and addressing any potential paternity issues. Contact the Law Office of Scott C. Soady today if you would like to speak with a lawyer today.