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In the U.S., children are born every day to unwed mothers. Throughout history, society and the legal system have shunned children of unwed mothers. The word bastard was once used openly to identify children born out of wedlock. Today, that word is synonymous with an offensive or disagreeable person. Back when only men could own and inherit land, being born out of wedlock also meant a lifetime of economic depravity because these children could not inherit from their fathers.
Unfortunately, modern statutes still reflect some of this old pattern of thinking. In North Carolina, if a child is born out of wedlock and that child’s father does nothing to legitimize that child either through subsequent marriage to the mother or court action, that child is at risk of being disinherited by the child’s father. Of course, when drawing up a will, any father in question can name an illegitimate child in the will, which should be enough to allow for inheritance. But, without a will, North Carolina law regarding inheritance rights still seem to echo the adverse historical treatment of children born out of wedlock.
For a child born out of wedlock, unless the child’s father has taken steps to legitimize that child or the court has intervened to determine paternity, the child in question will not inherit from the father in the event the father dies without a valid will. The law states that “a child born out of wedlock shall be treated as if that child were the legitimate child of the child’s mother, so that the child and the child’s lineal descendants are entitled to take by, through and from the child’s mother and the child’s other maternal kindred, both descendants and collaterals, and they are entitled to take from the child” according to NCGS § 29-19(a)(2016). Since women can and have been able to own personal and real property for some time now, these children are not necessarily destined to a less economically stable life than in which they may have been born.
Notwithstanding adoption, in vitro fertilization from donors, or any other forms of family building, any father who doesn’t have a valid will must meet several requirements to leave an inheritance to a child born out of wedlock. If a court has determined legal paternity of the man in question or if that father “acknowledged during his own lifetime and the child’s lifetime to be the father of the child in a written instrument executed and acknowledged before a certifying office… and filed during his own lifetime and the child’s lifetime in the office of the clerk of superior court” according to NCGS § 29-19(b)(2)(2016), that should be enough to establish intestate inheritance rights of the child. Or if that father undertook a DNA test to determine paternity within the first year of that child being born, then the child born out of wedlock should be able to benefit from the father’s estate through intestate succession.
Of course, a simple will may not always provide the right solution. To ensure that a child born out of wedlock inherits from you, a valid will that is drafted by a competent lawyer may be the only way to quell any question of legitimacy or prevent accidentally disinheriting children or even a grandchild. Through proper planning, drafting, and execution, a will can help reverse a situation that may leave a child or descendant with a legal dilemma that could have lasting negative affects.
Brett Thompson devotes his practice exclusively to Estate Planning, Probate Litigation, Medicaid Planning, Guardianship, and VA Benefits. He works to ensure that clients’ assets and rights are protected throughout their post-retirement years by leveraging his knowledge to counsel and assist clients through all phases of life planning....LEARN MORE