Generally, the law treats a child as a child, whether born in or out of wedlock. Regarding estate administration, there are different rules depending on whether the decedent had a Will or Trust.
If the decedent had a properly executed Will or Trust, then the document(s) will be followed as the law allows. If the decedent does not have an estate plan, meaning the decedent died intestate, then there are specific laws about whether the child is able to inherit.
Was the child legitimated?
A legitimated child means “placing a child born out of wedlock in the same legal position as a child born in wedlock.”
Because the mother is the one that gives birth, the child is automatically seen as legitimized by the mother. For the father, there is no automatic legitimization. If the child was legitimized during the father’s lifetime, then the child can inherit from their biological father.
There are three ways for a child born out of wedlock to be legitimized by the father during his lifetime:
1. If the mother was unmarried from conception through birth, the father can file a petition with the clerk of superior court to legitimate the child prior to his death. If the clerk determines the decedent was the biological father of the child, the clerk will enter an order declaring the child legitimated while the father is alive.
2. If the mother was married at conception, birth, or any time in between to a man that was not the child’s biological father, the putative father can file a petition with the clerk of superior court to legitimate the child prior to his death. If the clerk determines the decedent was the biological father of the child, the clerk enters an order declaring the child legitimated while the father was alive.
3. If the mother and father marry after the child's birth, the father legitimates the child.
What if the child was not legitimated?
If the father did not legitimate the child during his lifetime, there are still certain circumstances when the child could inherit. There are three ways for a child not legitimated during the father's lifetime to inherit still:
1. A court established paternity via a criminal action for failure to pay child support or a civil action to establish paternity.
2. The father acknowledged during his lifetime and the child’s lifetime that he was the father of the child in a written instrument:
3. Executed or acknowledged before a notary public, or a justice, judge, magistrate, clerk, assistant clerk or deputy clerk, or the equivalent or corresponding officers of the state, territory, or foreign country where the acknowledgment is made, and
4. Filed during his own lifetime and the child’s lifetime in the office of the clerk of superior court of the county where either he or the child resides.
5. The father died prior to or within one year after the birth of the child and can be established to have been the father of the child by DNA testing.
How does the child receive the inheritance?
If the child was legitimated during the father’s lifetime, then there is nothing the child needs to do to receive a portion of the father’s estate. However, if the child was not legitimated during the father’s lifetime but satisfies one of the three ways they can still inherit above, an adult child only has six months from the date of the first publication or posting of the general notice to creditors to give written notice to the personal representative (or executor) of the father’s estate. A minor child is not subject to the time requirement, so a minor child simply needs to give written notice to the personal representative of the father’s estate at some point.
Do you need to consider your rights in an estate as a child born out of wedlock?
At Carolina Family Estate Planning, we provide a full-service approach to estate administration that ensures the right choices are made at every crossroad. All of this is done with love and compassion during a difficult time. If you need help and guidance navigating the probate of a loved one’s estate in North Carolina, call us at (919) 944-4338 or visit our website to schedule a free needs assessment call with one of our friendly client welcome specialists.
