Your children will inherit your “spousal” estate – that is, the combined estate of you and your spouse. But what about children born after the death of your spouse? And what about illegitimate children?
If you don’t provide for them in your estate plan, Virginia law may provide for them instead.
The Virginia Code specifies afterborn heirs to be children conceived before, but born after, the death of your spouse. The code also covers children that are conceived by medical assistance, but are born after your spouse’s death.
Your child must be determined to have paternal relation to your deceased spouse in order to be considered a Virginia afterborn heir. The classification of your child as a legitimate afterborn heir allows your child to inherit as if born during your spouse’s lifetime.
Although the law provides clear guidelines for afterborn heir inheritances, it becomes muddled for illegitimate child inheritances.
Before undergoing review, federal and state law permitted illegitimate child inheritance on behalf of the mother. Illegitimate child inheritance on behalf of the father was nearly impossible given the former structure of the law. This was in part due to the inability to prove paternity, and in part due to the nature of the child being born out of wedlock. Under the law, if the child was not legitimate, the child was not qualified to inherit any portion of the paternal estate.
The landmark Supreme Court case “Trimble v. Gordon” changed how the law addresses the rights of illegitimate children to paternally inherit. In their decision, the Supreme Court issued the Illinois statute – which mirrored the Virginia statute of the time regarding the same issue – void.
While the statute had previously held that children born out of wedlock were only eligible to inherit intestate from their mothers, the court argued that those illegitimate children should be legally eligible to inherit from both parents.
The Illinois statute that prevented illegitimate children from collecting paternal inheritance was ruled unconstitutional by the Supreme Court. The court found that the statute violated the 14th Amendment by discriminating based on illegitimacy.
The Supreme Court’s ruling eventually led to the Virginia Supreme Court’s case, Peggy Jane Bird Marshall v. W.B. Bird. This case questioned the rights of illegitimate child inheritances in the state of Virginia. As an illegitimate child claiming a part of her father’s inheritance, and her father’s family contesting her claim under the current Virginia statute and failure to report her claim by the deadline, the Virginia Supreme Court heard the case.
At that time, Virginia Code § 64.1-5 – which mirrored the voided Illinois statute against illegitimate child inheritance – was still in place, concluding that Marshall held no rights to her father’s estate as an illegitimate child.
However, the General Assembly repealed Virginia Code § 64.1-5, and replaced it with Virginia Code § 64.1-5.1/5.2. These new statutes broadened the constitutional rights of illegitimate children.
Notably, the Supreme Court’s decision came before Bird’s death, which declared discrimination against illegitimate child inheritance unconstitutional. The statute was accepted by the General Assembly, but was not enacted into law until after Bird’s death.
The case ruled in favor of Marshall’s claim to her father’s estate.
Today, Virginia law provides that “paternity is established by clear evidence, including scientifically reliable genetic testing.” This means that if it is scientifically proven that an illegitimate child is a genetic match, the illegitimate child is eligible to receive an inheritance from that estate.
Additionally, there are regulations in how paternal inheritance must be filed in order to be considered. An affidavit must be filed by the illegitimate child within one year of the parent’s death in order to claim a stake in the inheritance. A claim filed later than one year from the death of the parent will not be considered.
Virginia legislation allows for illegitimate children to inherit from a parent. It does not assume automatic parental inheritance from the illegitimate child. New legislation is ineffective for paternal claims of inheritance.
However, if the father has held an open relationship regarding his child, has been present in the child’s life, has contributed positively to the child’s life, and has not refused to support the child, Virginia recognizes claims of illegitimate child inheritance by the parent.
Determining legitimate heirs is a complex legal process, but one that has evolved in recent years. You can cover your illegitimate children in your will or trust. Remember, it is more difficult for your beneficiaries if you die intestate and they have to petition your estate.
To consider an estate plan that includes your illegitimate children, or to discuss your rights to a parent’s inheritance as an illegitimate child, schedule a consultation with our estate planning attorney.