In the absence of even a simple Last Will and Testament, your estate will be distributed according to the intestate succession laws of your state of residency at the time of your death. In most cases, that means that a spouse and/or children will inherit your estate. What happens if you have a child born out of wedlock? Will that child inherit from your estate? The Annapolis estate planning attorneys at Sinclair Prosser Gasior explain how a child born out of wedlock is treated under Maryland’s intestate succession laws.
“Illegitimate” Children and Inheritance Laws
Until fairly recently a child born to unwed parents had no legal inheritance rights at all. In fact, such a child was legally known as a “filius nullius” or “child of no one.” Not only did an “illegitimate” child have no right to inherit from the father’s estate, but the child also had no right to inherit from the estate of the mother. Fortunately, both societal perceptions and the law began to change in the 20th century. In 1968, the U.S. Supreme Court ruled that state laws that denied illegitimate children rights based on their illegitimacy were unconstitutional under the Equal Protection Clause (Levy v. Louisiana). A decade later, in Trimble v. Gordon, the Supreme Court struck down a state law provision that denied an illegitimate child the right to inherit from her father unless the father’s will stipulated the inheritance. Finding no substantial government interest in denying inheritance rights to illegitimate children, the court declared the statute unconstitutional, stating “(t)he legal status of illegitimacy is, like race or national origin, a characteristic beyond an individual’s control, and it bears no relation to the individual’s ability to participate in and contribute to society…thus, a statutory classification based on illegitimacy violates equal protection unless it is substantially related to an important governmental interest.”
How Does Maryland Law Treat a Child Born Out of Wedlock?
The best way to ensure that your estate is distributed according to your wishes is to execute a carefully worded Last Will and Testament, making it clear exactly who is, and who is not, to inherit from your estate. What happens though if you fail to execute a Will prior to your death, or your Will is declared invalid for some reason? Will a child of yours born out of wedlock inherit from your estate? Even if you do have a Will in place when you die, the rights of a child born out of wedlock can still be at issue if you use a generic term such as “children” in that Will instead of identifying each child by name.
If you die intestate, or without a Will in place, the Maryland intestate succession laws will determine how your estate assets are distributed. Your children have a legal right to inherit under those laws. In the case of a child born out of wedlock, however, that right to inherit can become a bit more complicated. The child must establish that he/she is a child of the deceased parent first. It is easy enough to establish that a a child is the legal child of a deceased mother. To inherit from a father’s estate, an child born out of wedlock must meet the requirements found in Maryland Code § 1-208 which states, in pertinent part, as follows:
A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his father only if the father:
(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings;
(2) Has acknowledged himself, in writing, to be the father;
(3) Has openly and notoriously recognized the child to be his child; or
(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.
Contact an Annapolis Estate Planning Attorney
For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about Maryland inheritance laws, contact an experienced Annapolis estate planning attorney at Sinclair Prosser Gasior by calling (410) 573-4818 to schedule an appointment.
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