Rainey v. Chever: Expanding a Natural Father's Right to Inherit from His Illegitimate Child - Elizabeth G. Long

• Publication year: 2000

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Rainey v. Chever: Expanding a Natural Father's Right to Inherit from His Illegitimate Child

In Rainey v. Chever,¹ the Georgia Supreme Court held unconstitutional section 53-2-4(b)(2) of the Official Code of Georgia Annotated ("O.C.G.A."),² which required that before a natural father could inherit through his illegitimate child, the natural father had to either openly treat the child as his own or provide support for the child.³ Coming up only one vote short, the United States Supreme Court denied plaintiff's petition for writ of certiorari.⁴ The three dissenting Justices declared their belief that Georgia's statute addressed the "alarming trend" of out-of-wedlock births.⁵ Furthermore, the dissenting Justices asserted that because of the "substantial tension" between Georgia's decision and the United States Supreme Court's decisions, certiorari should have been granted.⁶

I. Factual Background

Zenobia Hamilton Rainey gave birth to DeAndre Bernard Hamilton, but was not married to DeAndre's biological father, Robert Lee Chever. When DeAndre was about two years old, Chever established his paternity through a judicial proceeding.⁷ However, this judicial proceeding did not legitimate DeAndre.⁸ Although Chever lived less than one mile from DeAndre, Chever had no contact with DeAndre. In fact, DeAndre instigated the first contact with Chever when DeAndre was fifteen years old. Even after this contact, Chever did not take an active role in DeAndre's life. Chever did not visit DeAndre or pay Rainey any child support. Furthermore, Chever did not know when or if DeAndre graduated from high school or if he attended college. In August 1997, at age twenty, DeAndre was killed in an automobile accident that was allegedly caused by a manufacturing defect.⁹ Despite having so little contact with DeAndre, Chever was "the first person—of all the parents whose children were injured or killed—to file a suit seeking monetary damages for his death."¹⁰

Believing that Chever had no right to inherit from DeAndre and attempting to stop Chever from pursuing his wrongful death action, Rainey filed a Petition to Determine Interests of Heirs pursuant to section 53-2-4(b)(2) of the O.C.G.A.¹¹ Rainey then moved for summary judgment on the ground that Chever failed to meet the requirements of section 53-2-4(b)(2). Reasoning that Rainey relied upon a statute that was unconstitutional under the constitutions of both Georgia and the United States, Chever replied with a cross-motion for summary judgment. The trial court granted Chever's motion and held that section 53-2-4(b)(2) violated the constitutions of Georgia and the United States. The trial court found that section 53-2-4(b)(2) used an unconstitutional gender-based classification because it placed additional requirements upon a father of an illegitimate child before that father could inherit from his child.¹² However, the mother of the same child had no such additional requirements to inherit from her child.¹³ The trial court further stated that "there is no legitimate state interest achieved by not subjecting mothers of illegitimate children to the same standards of conduct."¹⁴

The Georgia Supreme Court affirmed in a unanimous decision.¹⁵ Rainey petitioned the United States Supreme Court for certiorari, but the Court narrowly denied the petition, with three Justices dissent-ing.¹⁶

II. Legal Background

A. Statutory History

Prior to April 1991, the biological father of a child born out-of-wedlock could inherit from that child if the child had been legitimated or if paternity had been judicially established, and the mother of the child could inherit as if the child were legitimate.¹⁷ Georgia House Bill 251, which was approved on April 10, 1991, amended this provision.¹⁸ This amendment renumbered section 53-2-4 and added subsection (b)(2), which sets forth requirements that a biological father must meet to inherit from his out-of-wedlock child.¹⁹ New subsection (b)(2) requires not only that the child be legitimated or paternity established, but also that the biological father prove by a preponderance of the evidence that while the father was living and following the child's birth, he "openly treat[ed] the child as his own" and "providefd] support for the child."²⁰ Subsection (b)(2) was further amended in 1996 with the deletion of the phrases "while the father was living" and "following the child's birth."²¹

After the Georgia Supreme Court decided Rainey, Georgia House Bill 366 was introduced in an effort to amend section 53-2-4(b).²² The latest version of House Bill 366 would reduce the requirements for a biological father to inherit from his out-of-wedlock child by deleting the obligation of the father to treat the child openly as his own or to provide support for the child.²³ If approved by the Senate, the new version of section 53-2-4(b) would allow the father of a child born out of wedlock to inherit through that child if the father does only one of the following: legiti- mates the child, establishes paternity, signs an affidavit acknowledging that he is the father of the child, or signs the child's birth certificate.²⁴

The pre-1990 version of the Uniform Probate Code mirrored section 53-2-4; however, the Uniform Probate Code was revised and now provides that "[i]nheritance from or through a child by either natural parent or his [or her] kindred is precluded unless that natural parent has openly treated the child as his [or hers], and has not refused to support the child."²⁵

B. Caselaw History

Although it is now firmly established that an intestacy statute cannot discriminate on the basis of legitimacy and, therefore, that an illegitimate child has the right to inherit from his or her natural parents, this has not always been so. In Johnstone v. Taliaferro,²⁶ the Georgia Supreme Court discussed the rights and status of illegitimate children and stated that "[t]he most important disability of an illegitimate child at common law is that he has no inheritable blood; that he is incapable of becoming [an] heir . . .; [and] that he can have no heirs but those of his own body."²⁷ The court stated that several statutes passed in the 1800s had upgraded the rights and status of illegitimate children so that by the turn of the century an illegitimate child had inheritable blood and could inherit from his or her mother and vice versa.²⁸ However, as at common law, an illegitimate child was still not able to inherit from the biological father, and the child had no paternal heirs unless the child was legitimated.²⁹

In 1970 the Georgia Supreme Court stated in Pettiford v. Frazier³⁰ that the legislature had the authority to determine whether and how an illegitimate child could inherit from the mother and father.³¹ In reaching this decision, the court reasoned that inheritance rights are not "natural and inalienable rightfs], guaranteed by the Constitution of the United States."³² Therefore, '"the legislature may change, condition, or abrogate the law of succession, subject to certain constitutional limitations which are restricted in their scope.'"³³ The court cautioned that although the United States Constitution does not limit the power of state legislatures to establish and amend inheritance laws, the Fourteenth Amendment would suppress the legislature's power if such power "'would be so obviously arbitrary and unreasonable as to be beyond the pale of governmental authority.'"³⁴ Therefore, the court concluded that while the common law gave no right to the illegitimate child to inherit, the legislatures of each state have the power and discretion to decide under what circumstances an illegitimate child could inherit from his or her mother and father.³⁵

In Poulos v. McMahan,³⁶ the Georgia Supreme Court reviewed Georgia's intestacy laws as they pertained to the right of an illegitimate child to inherit from the father. In Poulos an illegitimate child, Michael, was attempting to inherit from his father. The probate court found that Michael was indeed the decedent's child; however, the superior court granted the opposing side's motion for summary judgment.³⁷ The superior court found that because Michael was an illegitimate child, he "could not inherit from the decedent under the intestacy laws in effect at the time of the decedent's death."³⁸ Michael appealed, arguing that Georgia's intestacy statutes were unconstitutional because they discriminated against illegitimate children, and the supreme court agreed that the pre-1980 intestacy scheme "granted illegitimate children no inheritance rights against their fathers' estates."³⁹ The court further stated that the intestacy scheme was subsequently revised to allow an illegitimate child to inherit from the father if paternity had been established during the lifetime of the father and after the conception of the child.⁴⁰ But because Michael had not met the requirements of the amended intestacy statute during the lifetime of his father, the court did not allow him to inherit from his father.⁴¹

When a putative father attempted to inherit from his illegitimate daughter who had died intestate, the Georgia Court of Appeals prohibited the father from inheriting because the requirements of section 53-4-5(b) (now section 53-2-4) had not been met during the child's lifetime.⁴² Although the court based its decision on the father's not meeting the requirements of subsection (b)(1) of the statute (establishing paternity), the court stated that subsection (b)(2) also had not been met.⁴³ The father argued that he "occasionally exchanged gifts with [the child]," but the court found that "occasional gifts do not constitute support."⁴⁴ Furthermore, the evidence showed the father's lack of monetary support, his failure to be present at the child's birth, and his lack of contact with the mother and child during the first two to three years of the child's life.⁴⁵ Therefore, the father was not permitted to inherit from his out-of-wedlock child because the father...