To Receive or Not to Receive – Illegitimate Children in Probate

In the 2010 Census, we learned that more than forty percent (40%) of children born in the United States are born to unwed mothers. While the issue of “illegitimate” children is certainly nothing new, it does lead to complex probate issues (usually at the death of the father).

Before the ’70s, the general rule was that an illegitimate child could not receive through his father’s estate. As the times have changed, so have the rulings. In Mitchell v. Hardwick, 297 S.C. 48, 50 (S.C. 1988), the South Carolina Supreme Court adopted the United States Supreme Court rule from Trimble v. Gordon, 430 U.S. 762 (1977), that illegitimate children could inherit from their fathers’ estates. Mitchell allowed illegitimate children to inherit from their fathers’ estates if three conditions were met: (i) innocent persons would not be adversely affected because of their detrimental reliance on the old inheritance rules (which barred intestate succession of illegitimate children from their father’s estate), (ii) the paternity of the child has been conclusively established either by court order or a decree issued prior to the death of the father or by an instrument signed by the father acknowledging paternity, and (iii) and the estate administration is subject to further resolution.

Today, we are even more willing to allow illegitimate children to inherit and have seriously loosened the Mitchell requirements that a child has to meet. South Carolina Code § 62-2-109 determines when a parent-child relationship exists for the purpose of inheriting through an estate. Luckily, the law is clear that when it’s the mother who passes away, a child born out of wedlock child is always a child of the mother for purposes of inheriting.  That child is also a child of the father if: (i) the natural parents participated in a marriage ceremony either before or after birth, even if the attempted marriage is void or (ii) paternity is established by adjudication either before the father’s death or within the proper time period after death. Similarly, if the putative father marries the mother and recognizes and acknowledges the child as his own, he becomes known as the father.

As an attorney who practices probate litigation, the call I usually get is from the illegitimate child who wants to know how to make sure they receive their share of the estate. These cases usually arise in the intestacy context (i.e. where there is no will) but can also arise when an illegitimate child is not named in the will because his/her paternity was not known at the time of the drafting of the will. The most important thing I remind these clients is that the burden falls on the illegitimate child to prove paternity. This is not the responsibility of the estate or its Personal Representative. And, the law is very clear that you can’t sit and wait to make your Petition to the court. Paternity MUST be established by an adjudication commenced before the death of the father (such as a family court child support order) or within the later of eight months after the death of the father or six months after the initial appointment of a personal representative of his estate.

Lastly, for my legal readers, it’s important to note that when representing a client in this area, the burden of proof is clear and convincing. If the Decedent didn’t acknowledge the child and you don’t have DNA tests to prove paternity, this can be a difficult burden to meet. Always make sure your client has realistic expectations (and solid evidence) before heading to your hearing.

​In a future post, I will discuss how illegitimacy comes in to play when its the child who passes away; as well as the rules with regards to adopted children.