Can out-of-wedlock children, stepchildren be heirs?

November 6, 2015

Some of the previous Legal Corner topics centered on the importance of a will and an overview of the heirs who may inherit through intestate succession when there isn’t a will. Intestate succession is a process each state uses in order to distribute property when a person dies without a valid will.

This week, let’s address a few more issues that may arise in these instances. What happens when the deceased had a child out of wedlock or maybe has raised a child he or she never formally adopted? What rights will these children have if the deceased did not leave a will or died intestate? Unfortunately, these types of issues tend to arise in a number of estate cases.

A child is considered born out of wedlock when the biological parents of the child are not legally married when the child is born. In North Carolina, in matters related to intestate succession, a child born out of wedlock is considered the legitimate child of his or her mother. This means the child and the child’s descendants or heirs will have a right to the mother’s estate.

However, in order for a child to be considered an heir through intestate succession for his or her father’s estate, the law requires a little more. North Carolina law requires the child to be legitimized before receiving the classification of an heir through intestate succession.

In order for a child born out of wedlock to be considered legitimated by the father, one of the following must first be established: A person must be adjudicated as the father by a court or judge in an order, a person has personally acknowledged himself as the father of the child during his lifetime and the lifetime of the child in a written instrument such as a valid birth certificate, or a person has died within a year of the birth of the child and DNA testing has established the person as the father.

When a person acknowledges that he is the father of a child born out of wedlock in his certified last will and testament or in any of the aforementioned circumstances, a child born out of wedlock is considered an heir to the father’s estate and will be able to inherit through intestate succession.

In North Carolina, a child who has been legally adopted is considered an heir to his or her adoptive parents. This means the adopted child would have the same rights through intestate succession or the same inheritance as a biological child if the parent dies intestate or without a will. This law is generally applied in cases where both parents have adopted a child or children, and more commonly in cases where a stepparent adopts his or her spouse’s child.

Consequently, most blended families fail to realize some of these specific laws related to intestate succession. In most cases, stepparents believe marriage alone will allow stepchildren to be included as heirs to their estate.

There have been so many battles fought in court between biological children and stepchildren over the estate of their parents. Stepchildren feel entitled to an inheritance, especially when they were either raised by the deceased or formed a bond with that parent during their life. Additionally, in many cases the stepparent is unable to adopt his or her stepchild because this means the biological mother or father would have to terminate their parental rights.

These types of issues can always be avoided when parents make an effort to leave a will that specifically addresses what their biological children and stepchildren are entitled to receive.

As always, anything involving state law or regulation can be complex. If you or someone you know has a question concerning heirs to intestate property or if you aren’t sure if you are an heir or not, contact an attorney and find out your options.

There are various ways to resolve issues with intestate property once you know what you are up against. Be informed. Be prepared.

Bellonora McCallum

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