Parents of Illegitimate Children in Probate (To Receive or Not to Receive Part II)

In a previous post, we discussed how illegitimacy affects the share of a child in probate. However, in some instances it’s the death of a child that raises a different issue . . . who benefits from the estate of a child? Who is entitled to serve as Personal Representative? Who can bring legal action on behalf of the child’s estate?

Determining the heirs of a young child can be a complex issue in a society of single parent homes, children being raised in foster care and blended families. First, remember that parents of a child will only inherit from the child if the child was not old enough to have a spouse or children of their own. For further information on the basics of when the parents are heirs, see our series on “Am I an Heir?” Part 1 and Part 2. In this post, we’re generally referring to the estate of a young child who has neither spouse nor children and therefore the parents are presumed to be the heirs. Many people may wonder how a young child can even have an estate (especially if they weren’t old enough to own assets) but this usually occurs when a child dies as a result of an accident and the assets in question stem from a lawsuit or insurance that pays to the estate.

South Carolina Code § 62-2-109 governs when a parent-child relationship exists for inheritance purposes. A child born out of wedlock is always the child of the mother. Absent a termination of the mother’s parental rights, the surviving mother of a deceased child is presumed to be an heir of the estate. Fathers; however, can prove more difficult.

The common law in South Carolina for many years provided that the father had no obligation to provide support of an illegitimate child. See McGlohon v. Harlan, 254 S.C. 207, 211, 174 S.E.2d 753, 755 (1970). A child is also the child of the father if: (1) the natural parents participated in a marriage ceremony, even if the attempted marriage is void; or (ii) paternity is established by adjudication. However, S.C. Code Ann. § 62-2-109(2)(ii) contains a wrinkle to paternity by adjudication. In order for the putative father to inherit from or through the child, he must have openly treated the child as his and not refused to support the child.  Further, if either or both of the parents’ parental rights have been terminated, they are not eligible to inherit from or through the child.

Often in the case of children, adjudication of paternity occurs in connection with child support or child custody proceedings in family court. A birth certificate containing the signatures of the mother and putative father creates a rebuttable presumption of paternity. S.C. Code Ann.  § 63-17-60(A)(6).

However, where the adjudication of paternity is occurring after the death of the child, a finding of paternity will require that the father did not refuse to support the child (this would include the payment of child support), as well as acknowledgement of paternity by the father during the child’s lifetime.

As a note for our legal readers, the burden of proof for these matters, whether the decedent is the putative father or the illegitimate child, is clear and convincing evidence. This can be a difficult standard to meet in the absence of DNA evidence. Frank discussion with clients is important before appearing at your hearing.

In conclusion, if you’re dealing with the death of a child (as a parent or legal counsel), it’s wise to understand the complex issues that can arise if there is a question of paternity, a termination of parental rights, an adoption or a failure to support the child. It’s wise to get a probate attorney involved early that can guide you through these issues.

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