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 70’s, 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.


Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.

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21 Responses to To Receive or Not to Receive – Illegitimate Children in Probate

  1. Hugo says:

    Can an adult illegitimate child with DNA proof of paternity inherit when not named in a will which the father leaves all assets to the surviving spouse? (South Carolina)

  2. Great question but much more information is needed to offer an answer. First, how long has it been since the Decedent’s death? Are their other children (either illegitimate or not)? Was the father aware of the child?

  3. Kim says:

    If the illegitimate child has no DNA proof of paternity and no clear and convincing evidence, can the illegitimate child file a motion in court for a relative of the Decedent to submit DNA?

  4. First, be very careful of the time restrictions on proving paternity. Secondly, most courts will offer various options for obtaining DNA but before a relative can be compelled, you first must make sure there is no DNA from the decedent available. For example, most Coroner’s offices now keep a DNA card on every decedent. If not, there are other mechanisms to obtain DNA from the decedent. It will be incredibly difficult to navigate your way through a paternity action without a qualified probate attorney. I recommend you contact someone immediately to assist you with this potential action.

  5. Brit says:

    What are the time restrictions on proving paternity in SC?

  6. Tannisha Browning says:

    My father died on 8/23/2016, him and my mother were never married but were together for over twenty years, He initially was not on my birth certificate because he was incarcerated at the time I was born, well I am 35 now and about 3 years ago he wanted his name added to my birth certificate and him and me mother went to go do so, will I be able to open an estate with the birth certificate as proof, or will I have to establish paternity another way

  7. Brit –

    We apologize for the delay in responding – we’ve been out with Hurricane Matthew for a few days. South Carolina code provides that is paternity was not established during the life of the father, it must be proven 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.

  8. Tannisha – First and foremost, please don’t delay on this issue. There is a strict time limit to prove paternity under SC law. You only have the LATER of eight months after the death of your father or six months after the initial appointment of a personal representative of his estate.

    The birth certificate may or may not be enough, depending on the county and whether or not your father had any other children who may contest your relationship to him. The addition of his name with his consent is certainly strong evidence of paternity but I would be hesitant to rely solely on that document. The safest procedure is to bring the petition to prove paternity in a timely fashion and provide the necessary testimony and evidence at the hearing so that it can never be challenged. Please let us know if we can help you start this process.

  9. Debbie Hunt says:

    Are there ways around the statue or any legal exception in regards to the time limit

  10. Debbie –

    There are very very few exceptions; however, an attorney who practices in this area can review your case and let you know if there are any circumstances which might provide an exception. Again, they are narrow and rarely apply. One example is where a child is led to believe they are going to be considered an heir to the estate but then AFTER the deadline they are notified that their paternity is being challenged. A very narrow exception but one that can apply in certain situations.

  11. Debbie Hunt says:

    Thank you very much

  12. Tina Randall says:

    My dad passed. I have 2 other half siblings besides me and my brother.
    We just found a will that excludes the other 2 children. Can they still receive a portion of my dad’s estate? I live in South Carolina.
    We are 7 months into probate when the will was found.

  13. Tina,

    The newly discovered will needs to immediately be admitted to probate. Once admitted, it dictates who will now receive; however, your attorney can draft a document (commonly called a family settlement agreement) that changes the distribution to include the additional siblings if that’s what you and your brother choose to do.

  14. Mary says:

    What if the illegitimate child has a different father listed on their birth certificate? Do they still have rights? And how can paternity be established if the father is deceased and cremated with no autopsy?

  15. Mary –

    We would need a lot more information from you before we could provide an accurate answer. As a general response, you can only inherit from one father so if you pursue and prove paternity in this case you need to understand it would stop you from inheriting from the father on your birth certificate. If he’s already passed then that’s another problem. As far as proving paternity, there are a series of options including DNA cards often kept by county Coroners, testing against a potential sibling and the use of DNA from hair or personal items belonging to the decedent that might still be in the home. If we can provide a consult for you on this matter, please reach out to David Causey in our office at 843-871-9500 or

  16. Sherry says:

    Ms Provence,
    I am the P.R. for my father’s estate….I have 3 siblings (2 full/1half) that we all know are heirs to his estate which was without a will. About 2 months into Probate I receive a Demand for Notice from 2 others that are claiming to be his children. He is not on their birth cert. nor did he ever claim them as his. There are no court doc. that I can find. What do I need to do as I thought burden of proof is with the others but not sure how the Probate office views this.

  17. Sherry –

    Great question! You are correct, the burden of proof is with the party claiming to be a child. They have to bring a Petition to Prove Paternity within the required amount of time in order to be considered an heir of the estate. That being said, when you have been served with a demand for notice, you are still responsible for providing them with the requested information. People often make this request so they can determine if it’s financially worth seeking to establish their paternity. For example, if they’ve learned it may cost $10,000 in DNA testing and legal fees to establish their rights as heirs, they want to know if they will stand to inherit at least that much by doing so.

    Should a Petition to Prove Paternity be filed, you need to immediately consult with a qualified probate attorney to represent the interest of the estate. You will only have 30 days to respond to that Petition so it’s wise to have an attorney in mind now so that you can book a consult quickly. Should that occur, I highly recommend David Causey (843-871-9500) in our office as he’s handled numerous paternity related matters. Should you be out of town, he also offers phone consults.

    I hope this was helpful and thanks again for contacting us and reading our blog.

  18. Regina Gardner says:

    Mom and dad both deceased. Mom died intestate had a son out of wedlock who died before her. Will the sons children be considered beneficiaries of her estate.

  19. A child born out of wedlock is still the intestate heir of the mother. South Carolina code sections 62-2-102 and 62-2-103 explain who receives from the mom’s estate and require that the “issue” (child) be surviving to receive. A review of those sections should help you determine who will receive from mom’s estate as you don’t tell us who passed first, if there were other children, etc. I hope this helps.

  20. Faye says:

    Can an illegitimate child force a surviving spouse, in this case the wife to sell her home to give the child half of the estate proceedings even if she is beneficiary, and name is on the house note.

  21. A few follow up questions in order to better answer your concern:

    1) Is there a will or is this an intestate estate?
    2) How is the title (deed) to the home held? This answer determines whether or not it’s actually an estate asset.
    3) Are there any creditors to the estate?
    4) Is this a South Carolina estate?

    If you prefer, you can email this responses to and we will do our best to point you in the correct direction.

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