One Size Does Not Fit All: A Proposal to Create a Flexible Intestacy System that Equitably Balances the Interests of the State, Marital Children and Non-Marital Children

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nonmarital children, inheritance, out of wedlock


When a person neglects to plan for the final disposition of his or her worldly goods, his or her heirs are left at the mercy of the state. If a person dies without a will or some other type of testamentary plan, the state steps in to make sure that his or her property is distributed in an orderly manner. As the Anna Nicole Smith situation illustrates, death often brings out the worst in people; therefore, states have enacted statutes that govern the manner in which a decedent's real and personal property is divided. In order to accomplish that task, the state statutes identify the heirs of persons who die intestate. All state intestacy statutes give preference to spouses and children. After the spouse has taken his or her share, the remainder of the decedent's estate usually goes to his or her children. Thus, the statutes have to define who is a legal child for inheritance purposes. Traditionally, identifying a decedent's legal children was a simple process because only marital children had the right to be the heirs of their parents. Since nonmarital children were considered to be the heirs of no one, they could not be included in the definition of legal children. As the number of children born out of wedlock increased, their presence in society became more acceptable. Consequently, the United Supreme Court took steps to eliminate the discrimination suffered by those children. The states justified the differential treatment of non-marital children on moral grounds. By preventing nonmarital children from inheriting from their parents, the states hoped to deter persons from having children without the benefit of marriage. The Supreme Court condemned the states for punishing non-marital children for just being born. As a result, the Supreme Court issued several decisions mandating that non-marital children be given an equal opportunity to inherit from both of their parents. The states reacted by passing intestacy statutes permitting non-marital children to inherit from their mothers without restrictions and to inherit from their fathers as long as they follow the procedures to prove paternity. Currently, the intestacy system in this country is fractured and complicated. The interests of the states, the non-marital children and the marital children would be better served by the implementation of a uniform intestacy system that is flexible enough to balance the interests of the state, the non-marital child, and the marital child, while carrying out the presumed intent of the decedent.


In Progress. Link is to the full text on SSRN.