Mother's baby, father's maybe! Intestate succession: when should a child born out of wedlock have a right to inherit from or through his or her biological father?

• Author: Davidson, Camille M.
• Position: III. The Supreme Court Has Weighed in on the Issue of Inheritance and the Out-of-Wedlock Child; North Carolina and Similar State Statutes Violate the Equal Protection Clause of the Fourteenth Amendment through Conclusion, with footnotes, p. 558-592

3. The Supreme Court Has Weighed in On the Issue of Inheritance and the Out-of-Wedlock Child; North Carolina and Similar State Statutes Violate the Equal Protection Clause of the Fourteenth Amendment

   1. The Supreme Court Weighs In On Out-of-Wedlock Paternal Intestate Inheritance

      The Supreme Court of the United States supports my proposition that children should not be treated differently because of the marital status of their parents. Although "[t]he matter of legitimation of children is peculiarly the creature of legislation, and its existence is solely dependent upon the law and policy of each particular state," (106) the United States Supreme Court "has held that the Equal Protection and Due Process Clauses of the Fourteenth and Fifth Amendments apply to state and federal illegitimacy law. As a consequence, constitutional law has superseded an area of state law to which the federal judiciary has traditionally given great deference." (107)

      As early as 1968, the Court condemned classifications based on the marital status of a child's parents (108) The Court recognized that it had "invoked equal protection principles to protect other minority groups from arbitrary governmental action, and discriminations based on status of birth [were] closely analogous to those predicated on race and ancestry." (109) It therefore determined that "[s]ince illegitimacy is a status which attaches to a person at birth as the result of conduct of other persons, due process should preclude the denial of rights otherwise available to him on that basis." (110) The Supreme Court's most recent reasoning on the issue of the out-of-wedlock child's right to inherit from his father's intestate estate can be seen in Trimble v. Gordon (111) and Lalli v. Lalli. (112)

      In Trimble, the appellants, Deta Mona Trimble and her mother, challenged a portion of the Illinois Probate Act that allowed children born out of wedlock to inherit only from their mother through intestate succession. The appellants alleged that the statute violated the Equal Protection Clause of the Fourteenth Amendment. The appellees' argument was that "Illinois has a legitimate interest in satisfying the 'presumed intent' of decedents who die intestate and that the state furthers that interest by excluding all illegitimate children from intestate succession from their fathers." (113)

      Deta Mona Trimble was the only child of Sherman Gordon. (114) Gordon was killed at the age of twenty-eight during a Chicago homicide, and he died intestate. Though Gordon and Deta's mother never married, they were living together when Deta was born. Additionally, Gordon had legally acknowledged Deta, and a court had ordered him to pay weekly child support payments. If Deta Mona had been born into a marital union, there would have been no lawsuit. She would have inherited Gordon's estate as his only surviving child. However, at Gordon's death, Deta was not included as his heir because of the language in Chapter 12 of the Illinois Probate Act. The Act stated that when a person dies intestate, "[a]n illegitimate child is heir of his mother and of any maternal ancestor, and of any person from whom his mother might have inherited, if living." (115) Further, "[a] child who was illegitimate whose parents intermarry and who is acknowledged by the father as the father's child is legitimate." (116) Thus, Deta could not inherit from her father's estate because she was born outside of a marital union, and her parents never later married.

      The United States Supreme Court reversed the Illinois Supreme Court that favored the appellees and remanded the case "for further proceedings not inconsistent with [the] opinion." (117) The Court determined that the Illinois statute violated the Equal Protection Clause of the Constitution. With Justice Powell writing for the majority, the Court stated that while strict scrutiny does not apply to classifications based on legitimacy, "[i]n a case like this, the Equal Protection Clause requires more than the mere incantation of a proper state purpose." (118) A state may classify children as born out of wedlock or in wedlock. However, when a state discriminates against the children based on the classification, such discrimination "depends upon the character of the discrimination and its relation to legitimate legislative aims." (119)

      The Court reasoned that the Illinois statute was too broad and there was no legitimate state purpose. The Court rejected the notion that discouraging out-of-wedlock births was a legitimate state interest and suggested that it was not proper to punish children for the sins of their parents because a child cannot control his or her birth status. "Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual as well as an unjust way of deterring the parent." (120) The Court reasoned that if the proper state objective was "assuring accuracy and efficiency in the disposition of property at death", the Illinois statute was constitutionally flawed. (121)

      With the 1977 ruling in Trimble v. Gordon that declared the Illinois statute unconstitutional, the United States Supreme Court reversed earlier Court positions. (122) However, the next year in Lalli v. Lalli, the Court sustained a New York statute that treated children born out of wedlock differently than their brethren born to a marital union. (123). Justice Powell, the only justice to be in the majority for both Trimble and Lalli, wrote the opinion for the plurality in Lalli. Justices Blackmun and Rehnquist each wrote separate concurring opinions that affirmed the majority ruling. The Court upheld a New York statute that "conditioned an illegitimate child's right to inherit from his father on having paternity judicially determined during the life of his father although there was no doubt as to the child's paternity." (124)

      New York, at that time, allowed a child born out of wedlock to inherit from his intestate father only "if a court of competent jurisdiction ha[d], during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child." (125) Appellant was the out-of-wedlock child of the deceased Mario Lalli. At his father's death, Appellant petitioned the estate with evidence of paternity and claimed that he was entitled to an inheritance. (126) "Appellant contend[ed] that [New York statute] [section] 4-1,2, like the statute at issue in Trimble, exclude[ed] 'significant categories of illegitimate children' who could be allowed to inherit 'without jeopardizing the orderly settlement' of their intestate fathers' estates." (127) However,

      Finding [section] 4-1.2 to be 'significantly and determinatively different' from the statute overturned in Trimble, the court ruled that the New York law was sufficiently related to the State's interest in 'the orderly settlement of estates and the dependability of titles to property passing under intestacy laws,' to meet the requirements for equal protection. (128) As such, the Court upheld the rulings of the New York Surrogate Court and New York Court of Appeals.

      Although the Court did not overrule Trimble, the Court plurality distinguished the two situations and stated that the Lalli statute merely required evidentiary proof of paternity. The Court restated the rule that while strict scrutiny is not applicable, there must be a substantial relationship to a legitimate or permissible state interest in order to justify the classification of children born out of wedlock. Unlike the statute in Trimble, where the statute that required parental marriage was found unconstitutional because there was no legitimate state interest, the statute in Lalli was upheld through the Court's reasoning that "the just and orderly disposition of a decedent's property where paternal inheritance by illegitimate children is concerned, [is] an area involving unique and difficult problems of proof." (129) According to the Court, "Section 4-1.2 represent[ed] a carefully considered legislative judgment on how best to 'grant to illegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate children,' while protecting the important state interest in the just and orderly disposition of decedents' estates." (130) Unlike the Illinois legislature, the New York legislature did not require parents to marry; as a result, the legitimate state interest was in the "orderly disposition of decedents' estates," (131)

      The last time that the Supreme Court spoke to the issue of the constitutionality of state statutes that restrict paternal intestate inheritance from children born out of wedlock (as of this Article's publication) was in Lalli. The Lalli majority stated that the marital status of the parents is not relevant when it comes to paternal intestate inheritance. "The single requirement at issue here is an evidentiary one--that the paternity of the father be declared in a judicial proceeding sometime before his death." (132) "When the illegitimate child establishes his paternity during the lifetime of the father, fraudulent claims against the estate will be minimized, estate administration will be more efficient, and a purported father will be able to defend himself against claims of paternity." (133)

      It appears that the Supreme Court accepted the burdensome proof requirements only because they were necessary to protect the state's interest in orderly estate administration. Proof of paternity can now be accomplished without the additional formal hurdles of judicial proceedings during the father's lifetime. While an authority may be necessary to read the test results and determine whether the DNA test results are indeed valid, the proceeding can take place at any time--including after the death of the father--and even if a father did not acknowledge his child while he was alive. In my opinion, the...