For most parents, their children are the primary motivation for creating an estate plan. If you are a parent, for example, you undoubtedly want to ensure that your estate assets are used to provide for your children in the event of your untimely death and/or that they benefit from your estate at the end of your long life. The vast majority of the time, ensuring that your children are included in your estate plan is simple enough. What happens if you had a child born out of wedlock though? Is that child entitled to inherit from your estate? The Fargo estate planning lawyers at German Law Group explain how the law views the inheritance rights of a child born out of wedlock.
“Illegitimate” Children and the Law
For centuries, a child born to unwed parents had no rights at all. In fact, such as 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, such archaic views began to change in the 20th century and changes in the law were not far behind. 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.”, the Supreme Court declared the statute unconstitutional. As is typically the case, once the Supreme Court struck down one state law prohibiting illegitimate children from inheriting, other states began to reevaluate and repeal similar laws.
North Dakota Intestate Succession Laws
To ensure that your estate is distributed according to your wishes, make sure you have a comprehensive estate plan in place, including a properly drafted Last Will and Testament. In your Will, make it clear exactly who is, and who is not, to inherit from your estate. If you fail to execute a Will prior to your death, or your Will is declared invalid for some reason though, what happens to your assets? Will a child born out of wedlock be allowed to inherit from your estate in North Dakota? Moreover, if you fail to identify a child born out of wedlock by name in your Will, the rights of that child could still be an issue.
Pursuant to the North Dakota intestate succession laws, your children will receive a share of your estate if you leave behind an intestate estate. The size of that share will depend on whether or not you also leave behind a spouse and on how many children you leave behind. Furthermore, the law must recognize a child as your child for him/her to be entitled to inherit from your estate. For a child born out of wedlock to inherit, therefore, you must have legally established paternity while you were alive or paternity must be proven during the probate of your estate. Keep in mind that this also means your child born out of wedlock will be entitled to share in your estate if you choose to use generic terms to identify your beneficiaries in your Will. For example, if you leave half of your estate to your “children” instead of naming each child, your child born out of wedlock may be entitled to share those assets with any other children you have at the time of your death.
Contact Estate Planning Lawyers
Please join us for an upcoming FREE seminar. If you have additional questions or concerns regarding the status of a child born out of wedlock and his/her right to inherit from your estate, contact the estate planning lawyers at German Law Group by calling 701-738-0060 to schedule an appointment.
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