Blogs from October, 2008


Morality and the Probate Code: The Law’s Treatment of Illegitimate Children and IntestacyIt wasn’t too long ago that having a child born out of wedlock was universally considered taboo, thereby placing a stigma on the child which had significant social and economic implications through no fault, choice, or conduct of the child. Today, evidence suggests that one in three children born in our great country is born out of wedlock.

Generally, a child born out of wedlock is also thrust into our world with a legal disadvantage. The child’s intestacy rights are no exception to this general rule. While the intestate succession system in Florida, and most other states, was written to provide an inheritance for a child through receiving the bulk of his or her parent’s estate, non-marital children are treated differently than marital children. Many jurisdictions require non-marital children to jump through many hoops before they can inherit from their parents.

At first glance, one might think this can’t be the case and that surely our Supreme Court wouldn’t stand for this type of disparate and archaic discrimination, especially against children, the group with the least amount of political power in our democracy. However, an examination of our high court’s treatment of this issue is discouraging for children’s rights advocates. Simply stated, our Supreme Court has consistently allowed states to enact laws making it difficult for non-marital children to inherit from their parents by requiring the children to follow complicated and burdensome procedures that marital children are not required to follow. The justification for these rulings has always been that “state legislatures should be given deference in the probate area.” Reed v. Campbell, 476 U.S. 852 (1986).

The Supreme Court Speaks
Illinois passed a statute whereby a non-marital child could only inherit from his or her father if two conditions were met to legitimize the child: (1) The parents had to get married; and (2) the father had to acknowledge the child as his. The government justified this law on the grounds that it advanced strong state interest by “encouraging family relationships” and to establish “an accurate and efficient method of disposing of property at death.” Trimble v. Gordon, 430 U.S. 726, 766-768 (1977).

In Trimble v. Gordon, 430 U.S. 762 (1977) Jessie Trimble and Sherman Gordon had a daughter, Deta Mona Trimble, out of wedlock. They all lived together for years before Gordon died intestate. Deta had a valid paternity order and a child support order from a family law court. However, because of the statute in place, the probate judge refused to regard Deta as Gordon’s heir. Because other (marital) children in Illinois would inherit their father’s estate without having to meet any criteria, Trimble appealed the probate judge’s refusal to recognize Deta as violative of her rights to equal protection under the law.

The case worked its way through the system and arrived at the United States Supreme Court, which closely examined the Illinois law and the restrictions it placed on non-marital children. Importantly, the Court focused on the following observations:

• A non-marital child has no control over the decision of the parents with regard to marriage.
• A child should not have to suffer the legal consequences of a parent’s decision.
• The statute at issue prevented non-marital children with valid paternity claims from inheriting.
• Under the statute, even if the father acknowledged the child, the child could not inherit unless the parents married, thereby making it virtually impossible for non-marital children to inherit.

…We Changed Our Minds
Although the Supreme Court declared the law unconstitutional in Trimble v. Gordon, it again confronted the issue shortly thereafter in Lalli v. Lalli, 439 U.S. 259 (1978) and essentially reversed the policy it had established just a year earlier by holding that the state had a legitimate interest in requiring a lot of hoops for illegitimate children to jump through. The erudite opinion of the Court reasoned that the procedure required by the statute had the potential to limit the number of false claims filed before the court because if a dead father were not around to defend himself from paternity claims, the floodgates could open and the courts would be inundated. Believe it or not, this argument won the day and the law at issue was found to be constitutional. As the law stands today, states are not required to permit non-marital children to have the exact same inheritance rights as marital children.

Change You Can Believe In
The Uniform Parentage Act creates a probate system where non-marital children have an equal opportunity to inherit from both parents and non-marital children are not disadvantaged because their parents chose to have them without the benefit of marriage. Also, any other heirs can challenge the child’s right to inherit. Eighteen states and the District of Columbia have adopted statutes modeled after the Uniform Parentage Act. Shouldn’t Florida consider this too?

Approve This Message
One legal observer has suggested that states go farther than merely adopting versions of the Uniform Probate Code and the Uniform Parentage Act by adopting legislation that provides flexibility, balance, and equity:

“The purpose of the intestacy system is to carry out the presumed intent of the decedent. The current system is too inflexible to achieve that goal. As the definition of family evolves, the intestacy system needs to expand. Thus, there should not be a set of rigid rules that attempts to apply to all situations. This “one size fits all” approach to distributing the assets of a man who dies intestate is obsolete. The intestacy system should be flexible enough to take into consideration factors such as the size of the decedent’s estate, the ages of the decedent’s children, and the relationship the decedent had with his children.” Prof. Browne Lewis, Children of Men: Balancing the Inheritance Rights of Marital and Non Marital Children 39 UNIVERSITY TOLEDO LAW REVIEW 1 (2007)


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