Intestacy (Non-Marital Children, Stepchildren and Foster Children)

AuthorBrowne C. Lewis
Pages194-236
194
Chapter Five: Intestacy (Non-Marital Children, Stepchildren and Foster
Children)
5.1 Introduction
This chapter examines the rights of three categories of children who are treated like
outsiders. These children are punished because of the actions of their parents. The deterioration of
the institution of marriage created two new classes of childrennon-marital children and step
children. For inheritance purposes, non-marital children are treated like second tiered children. A
child who is not genetically related to a woman’s husband has the opportunity to inherit from that
man because of the marriage. However, a child born outside of the marriage may not be able to
inherit from his biological father unless his mother jumps through some extra hoops.
When the intestacy system was created, non-marital children were called bastards and had
basically no legal rights. The man did not have to provide any type of support for the children he
conceived with a woman who was not his wife. Those children were considered to be the children
of no one. Therefore, they were not legally entitled to child support or legally able to be heirs.
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If an
unmarried woman died giving birth to a child, that child was forced to reside in an orphanage h ome
or to live on the streets. The child suffered that fate even if the child’s father was a wealthy man.
There was a no great outrage or objection to that practice because children born out of wedlock
were considered to be the products of sin. As more and more people chose to openly have children
without the benefit of marriage, the plight of non-marital children could not be ignored. Society
recognized the need to ensure that those children were not disadvantaged because of the
circumstances of their births. It took years of litigation, but the stigma of illegitimacy was eventually
removed from the non-marital child. Currently, all fifty states and the District of Columbia have
intestacy statutes giving non-marital children the opportunity to inherit from their parents. Thus, the
nature of the litigation has changed. Recent cases address the ability of non-marital children to take
the steps necessary to have the chance to inherit from their fathers.
My father was my mother’s third husband. When my parents married, my mother had three
small children. As a result of their marriage, my parents conceived nine children. We all grew up
together as a family. I did not make any distinction between my half-siblings and my whole siblings.
Nonetheless, when my father died, his estate was divided into nine parts instead of twelve parts. The
courts did not take into consideration that my half-siblings were really young when my parents
married or the fact that my father had a close relationship with my half-siblings. The courts were
bound by the law that stated that stepchildren were not heirs of their stepparents. In this context,
the legal parent-child relationship necessary for my half-siblings to inherit from my father did not
exist even though a parent-child relationship did exist. Studies show that a majority of children in
the United States will live in blended families. Thus, there is a push to put stepchildren on par with
biological children for intestacy purposes. I have included a discussion of the inheritance rights of
foster children in this chapter because the foster care system is changing. Children are staying longer
in the same foster homes and becoming part of their foster families. Therefore, the foster parent-
foster child relationship resembles a parent-child relationship.
29
1 William Blackstone, Commentaries on the Laws of England 447 (William S. Hein & Co., Inc. 1992).
195
5.2 Non-Marital Children
Most of the current litigation in this area involves the non-marital child’s right to inherit
from his or her father. In order for the non-marital child to be considered an heir under the
intestacy system, a father-child relationship must exist. The legal issues relevant to the discussion are:
(1) Whether the intestate statute at issue satisfies the mandates established by the United States
Supreme Court cases; (2) Whether the non-marital child has sufficiently complied with the intestate
statute to have earned the opportunity to inherit from his or her parent; and (3) Whether the non-
marital child should be given the chance to inherit through his or her parent.
′very time the state expands the definition of “child” for inheritance purposes, it decreases
the inheritance rights of marital children. Accordingly, the state legislature must balance the
inheritance rights of various groups of children while promoting the state’s interest in an orderly
probate process. When reading the materials in this section, you should think about the interests that
have to be balanced. In deciding how to distribute the property of a man who dies intestate, the state
must consider three important interests: (1) the state’s interests in the orderly disposition of after
death property; (2) the non-marital child’s interest in acquiring the chance to inherit from his or her
father; and (3) the marital children’s interest in reducing the number of persons claiming an interest
in the man’s estate.
Starting in the late 1960’s, the United States Supreme Court considered several cases
involving the legal rights of non-marital children attempting to receive financial benefits based upon
their connections to their biological fathers and their mothers. The holdings in those cases paved the
way for the Supreme Court to conclude that non-marital children must be given the opportunity to
inherit from their mothers and fathers. In response, the state enacted statutes setting out the
conditions that have to be met in order for non-marital children to inherit from their mothers and
fathers. The state legislatures either concluded that the mother-child relationship was established by
the process of birth or explicitly granted the non-marital child the right to inherit from his or her
mother. The non-marital child’s right to inherit from his or her father was not so easily resolved.
The states enacted statutes enumerating the conditions the non-marital child has to meet in order to
establish the father-child relationship for inheritance purposes. The following cases set out the
parameters state intestacy statutes have to meet in order to survive constitutional challenges by and
on behalf of non-martial children.
5.2.1 The Right to Inherit From Mothers
In light of the old adage, “mama’s baby, papa’s maybe,” it would appear that the non-marital
child’s ability to inherit from his or her mother would be a foregone conclusion. Nonetheless, non-
martial children had to fight to be recognized as the heirs of their mothers. In fact, the early cases
dealing with the rights of non-marital children focused upon the legal rights attached to the mother-
child relationship. Getting courts to recognize that relationship was crucial to non-martial children
who wanted the opportunity to inherit from and through their mothers. Those initial cases involved
tort law. The principles established in those cases paved the way for legislatures to acknowledge that
non-marital children have a right to be financially supported by their mothers. That right to support
has extended to a right to be considered an heir under the intestacy system. An example of such a
case follows.
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Levy v. Louisiana, 391 U.S. 68 (1968)
Mr. Justice DOUGLAS delivered the opinion of the Court.
Appellant sued on behalf of five illegitimate children to recover, under a Louisiana statute
30
for two
kinds of damages as a result of the wrongful death of their mother: (1) the damages to them for the
loss of their mother; and (2) those based on the survival of a cause of action which the mother had
at the time of her death for pain and suffering. Appellees
31
are the doctor who treated her and the
insurance company.
We assume in the present state of the pleadings that the mother, Louise Levy, gave birth to these
five illegitimate children and that they lived with her; that she treated them as a parent would treat
any other child; that she worked as a domestic servant to support them, taking them to church every
Sunday and enrolling them, at her own expense, in a parochial school. The Louisiana District Court
dismissed the suit. The Court of Appeal affirmed, holding that ‘child’ in Article 21315 means
‘legitimate child,’ the denial to illegitimate children of ‘the right to recover’ being based on morals
and general welfare because it discourages bringing children into the world out of wedlock.’ 192 So.
2d 193, 195. The Supreme Court of Louisiana denied certiorari. 250 La. 25, 193 So. 2d 530.
The case is here on appeal ( 28 U.S.C. s 1257(2)); and we noted probable jurisdiction, 389 U.S. 925,
88 S.Ct. 290, 19 L.Ed. 2d 276, the statute as construed having been sustained against challenge under
both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
We start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live and
have their being.
32
They are clearly ‘persons’ within the meaning of the ′qual Protection Clause of
the Fourteenth Amendment.
While a State has broad power when it comes to making classifications (Ferguson v. Skrupa, 372 U.S.
726, 732, 83 S.Ct. 1028, 1032, 10 L.Ed. 2d 93), it may not draw a line which constitutes an invidious
discrimination against a particular class. See Skinner v. State of Oklahoma, 316 U.S. 535, 541-542, 62
S.Ct. 1110, 1113-1114, 86 L. Ed. 1655. Though the test has been variously stated, the end result is
whether the line drawn is a rational one. See Morey v. Doud, 354 U.S. 457, 465-466, 77 S.Ct. 1344,
1349-1351, 1 L.Ed. 2d 1485.
30
La. Civ. Code Ann. Art. 2315 (Supp. 1967) (Every act whatever of man that causes damages t o another obliges him by
whose fault it happened to repair it. ‘The right to recover damages to property caused by an offense or quasi offense is a
property right which, on the death of the oblige, is inherited by his legal, instituted, or irregular heirs, subject to the
community rights of the surviving spouse.’ The right to recover all other damages caused by an offense or quasi offense,
if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the
surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving
father and mother of the deceased, or either of them, if he left no spouse or surviving child; and (3) the survivi ng
brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in
whose favor this right of action survives may also recover the damages which they sustai ned through the wrongful death
of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on t he
death of the survivor in whose favor the right of action survived, is inherited by his legal, i nstituted, or irregular heirs,
whether suit has been instituted thereon by the survivor or not. ‘As used in this article, the words ‘child,’ ‘sister,’ ‘fat her,’
and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respec tively.’
31
The State of Louisiana was dismissed from the action and exceptions relating to the Charity Hospital, at which the
mother was treated, were continued indefinitely. No appeal was taken with respect to either of those defendant s.
32
See Note, The Rights of Illegitimates Under Federal Statutes, 76 Harv. L. Rev. 337 (1962).

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