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?

AuthorDavidson, Camille M.
PositionIntroduction through II. Should All of a Father's Children Be Treated the Same? p. 531-558

Abstract

When the renowned chess genius Bobby Fischer died, his body was exhumed in order to determine whether his genetic samples matched samples from a child whose mother claimed he fathered outside of a marital union. Bobby Fischer was domiciled in Iceland and under Icelandic law, if there had been a genetic connection, the child would have been the sole legal heir of his intestate estate. The law is not so clear in the United States. Each state has enacted laws of intestate succession. While the laws in all fifty states provide that a child born out of wedlock is automatically his or her mother's legal child, state statutes vary substantially as to when that same child is entitled to an intestate inheritance from or through his or her genetic father.

If Fischer, the Chicago native, had been domiciled in North Carolina at his death, even if DNA had established a genetic relationship between Fisher and the child, the child would still have been precluded from inheriting her father's estate. In North Carolina, a biological or genetic connection is not enough to constitute a paternal legal heir without strict compliance with statutory formalities. In contrast, if Fischer had been domiciled in Georgia, and through clear and convincing evidence a genetic relationship was established, the child would inherit from her father's estate as his legal child. As one can see, in the United States, paternal inheritance depends on the state of the father's domicile. As such, when we discuss the out of wedlock child and his or her right to inherit family wealth through intestate succession, the old adage "Mother's baby, father's maybe" comes to mind.

In this paper, I suggest that each of the fifty states should, like Georgia and other similarly situated states, follow the trend of Icelandic law in the area of intestate succession. Specifically, where clear and convincing evidence (either before or after a father's death) determines that a father is the genetic parent of a child, and there has been no formal adoption of the child, such child should be entitled to an intestate share of his or her father's estate in the same manner as a child born to a married parents.

INTRODUCTION

The renowned chess genius Bobby Fischer died intestate in 2008. (1) The Chicago native had renounced his American citizenship and at his death he was buffed in Iceland. (2) During the summer of 2010, officials exhumed his body to remove DNA samples. (3) Why? The mother of a nine-year-old child in the Philippines claimed that her daughter was Fischer's biological child. (4) His genetic samples were tested against samples taken from the child and her mother in order to determine the child's paternity. (5) Evidence suggested that Fischer had transferred money to the child's mother in 2006, 2007, and just before he died in 2008. (6) As such, Iceland's Supreme Court ruled that Fisher's body could be exhumed to collect genetic samples. (7) The exhumation was "professional" and attended by a physician, priest, and other officials. (8) After the exhumation, the remains were tested and it was determined that Fischer was not the child's father. (9) The Bobby Fischer story generated heated discussions on the Internet. (10) If DNA had determined that Fischer was the child's father, she would have inherited his entire estate as his sole legal heir under Icelandic law. (11) While some individuals believed that the child should inherit from her biological father, (12) others suggested that "gold diggers" should not be rewarded. (13)

Icelandic law states that if the child is determined to be her father's genetic child, then she is his legal heir and she is entitled to inherit his intestate estate. (14) The law in the United States is not so settled for children born out of wedlock. In the United States, the laws of intestate succession are determined on a state level and each state has enacted intestate distribution statutes. (15)

The laws of intestate succession in all fifty states provide that a child born out of wedlock is automatically his or her mother's legal child. (16) Therefore, the child is eligible to inherit from or through his or her mother through intestate succession in the same manner as a child born into a marital union. (17) However, state statutes vary substantially as to when that same child is entitled to an intestate inheritance from or through his or her genetic father. (18)

In most jurisdictions, a child born out of wedlock does not have an automatic right to an intestate share of his or her father's estate. (19) The child's right to an inheritance may hinge on some required action of the father during the father's lifetime. For example, the father may be required to acknowledge his child during his lifetime, sign a written acknowledgment in the presence of a notary, file a document with the clerk of court, or perform some other deliberate act to establish a legal relationship and thus enable the child to inherit from or through him through intestate succession.

Currently, it is possible that an individual may be considered the child of his or her father in one state but not in another. (20) The variations among states can be seen when we compare the North Carolina and Georgia statutes. These state statutes represent two extremes. In North Carolina, an out-of-wedlock child may inherit from his or her father only if such child has been legitimized. (21) A child is legitimized when the parents subsequently marry, when there has been a formal adjudication, or when there is a writing signed by the father and acknowledged and recorded in the superior court of the county where the father or child is located. (22) Even if a parent-child relationship existed while the father was alive, if the statutory requirements are not met, the child is ineligible to inherit from his or her father or father's family through intestacy. And even if DNA established paternity during the father's lifetime, the child is still ineligible to inherit from the biological father if the statutory requirements are not met. In contrast, Georgia allows an individual who can prove paternity by clear and convincing evidence to inherit from his or her father. (23) A DNA test (even after the death of the father) is enough to provide such evidence even if there was no parent-child relationship between the individual and his or her biological father. (24)

If Fischer, a Chicago native, had been domiciled in North Carolina at his death, the child would have been precluded from inheriting Fischer's estate even if DNA had established a genetic relationship between Fischer and the child. In North Carolina, a biological or genetic connection is not enough to constitute a paternal legal heir without strict compliance with statutory formalities. In contrast, if Fischer had been domiciled in Georgia, and through clear and convincing evidence a genetic relationship was established, the child would have inherited from Fischer's estate as his legal child. As one can see, in the United States, paternal inheritance depends on the state of the...

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