When a person dies without a will, state law provides for the surviving spouse and then the surviving children. State law even provides for when a person dies without a will, spouse, or children. This can seem like a very orderly method for distributing the decedent’s property; however, things are not always what they seem. For example, upon closer inspection, even the term “children” can be ambiguous.

Posthumous Children

The term “children” includes sons and daughters who are born to the decedent during his lifetime. It may also include sons and daughters who are born to the decedent after the decedent dies. Children born after the death of the decedent are referred to as posthumous children.

The courts in some states have established a rebuttable presumption that the normal period of gestation for a child is 280 days (or ten lunar months). If the child claims that his conception dated more than 280 days before birth, the burden of proof is on the child.

Other states follow the Uniform Parentage Act or UPA, which is a model for state law. The UPA presumes that a child born to a woman within 300 days (rather than 280) days after the death of her husband is a child of the deceased husband.

Adopted Children

Adoption can also impact a child’s ability to inherit. In some states, adoption ends all inheritance rights from natural parents. Instead, the adopted child inherits only from the adoptive parents.

According to the Uniform Probate Code, which is another set of model laws followed in many states, the adopted child inherits from the adoptive relatives and also from natural relatives if the child is adopted by a step parent. Yet, the natural relatives cannot inherit from the adopted child.

Adopting adults can also present some unique questions. Only a few adoption or inheritance states draw any distinction between adoption of a minor and adoption of an adult. Occasionally, the adoption of an adult may be useful in preventing a will contest. In these cases the non-family member adult who the decedent wanted to receive property (and their relatives) will have standing to join the will contest; whereas, they might not if the adult was not adopted.

Even if the decedent did not formally adopt the child (or adult, presumably), the court may rely on the doctrine of equitable adoption. This doctrine allows the court to deem that an adoption took place if the conduct of the decedent was such as to warrant treating the claimant as a lawfully adopted child for purposes of inheritance. The courts will look to the good faith intent by the parent to adopt the child (or adult).

Children from Reproductive Technology

State law is currently in flux regarding children born by reproduction technology, some of whom may have genetic or even no genetic connection with one or more of his parents.

Non-Marital Children

In the past, a child born out of wedlock was deemed not to be the child of either parent for inheritance purposes. Thus, the child could not inherit from either his father or mother. Today all states permit inheritance from the mother, but the rules vary with respect to the father of children born out of wedlock.

According to the UPA, children born out of wedlock are entitled to inherit just as any other child if a parent child relationship exists. The parent and child relationship is deemed to exist with respect to children regardless of the parent’s marital status.

More specifically, this relationship exists with the father if the father receives the child into his home and openly holds the child out as his natural child while the child is a minor or the father acknowledges his paternity in a writing filed with an appropriate court or administrative agency. If this relationship does not exist, the child must bring suit to establish paternity within three years after the child reaches the age of majority.

Transfers to children can give rise to a number of other unique considerations as well. The concept of an advancement on an inheritance is one example. Let’s look at advancements of inheritances to children a bit further.