Blog Inheritance by, through and from a Child Born out of Wedlock

By Cowles Liipfert & Don Wells

60 years ago, only about 20% of children in the United States were born out of wedlock. In 2023, approximately 60% of children were born out of wedlock.

Another pertinent fact is that a majority of people die without a will, in which case the inheritance rights of children are determined by state law, including the inheritance rights of children born out of wedlock.  Often, members of a decedent’s family do not bother with a court administration. 

This article discusses the North Carolina inheritance rights by, through and from children born out of wedlock.

North Carolina General Statutes (NCGS) Section 29-19 states that, for purpose of intestate succession (i.e., where there is no will), a child born out of wedlock shall be treated the same as a legitimate child of the mother, so that such child and his or her lineal descendants are entitled to take by, from and through the mother and other maternal kindred, including both lineal and collateral kin of the mother.

The rules of inheritance by, through and from the father are much more complex because of the uncertainty as to whether or not a purported father is actually the biological father of a child born out of wedlock.

Even if the purported father is named on the child’s birth certificate, that alone does not establish legal paternity for the purposes of inheritance.  The mother may not know who the father is, and she may have named a current or past partner whom she thinks could be the biological father, without knowing for certain whether that person is the biological father.

Therefore, the father of a child born out of wedlock must be determined by the father’s own admission, by a court, or by other means, such as the following:

• Paternity may be established by the nonsupport provisions of state law, NCGS Sections 49-1 through 49-9, or under NCGS Section 49-14, a civil action to establish paternity.
• Legitimation may be established non-judicially, by subsequent marriage of the mother to the father after the birth of the child.  A similar but different situation could arise which could give a child inheritance rights – that is, if the mother was pregnant by another man when she married someone who was not the child’s biological father, but who accepted the child as his own, publicly and privately, in which case the child can succeed to inheritance rights from the husband of the child’s mother.
• Paternity may be established by someone who acknowledges himself, during the child’s lifetime, to be the father of the child in a written instrument executed or acknowledged before a certifying officer named in NCGS Section 52-10(b), which is filed during his lifetime and the lifetime of the child in the office of the Clerk of Superior Court of the county where he or the child resides.  Such an acknowledgement may be made in another state, in a territory or even in a foreign country.
• Paternity may be established by someone who acknowledges himself to be the father in his duly-probated Will.
• If the father took a DNA test within the first year after the child’s birth, the child could benefit from the father’s estate if the father died without a Will.  

Even if a deceased parent has a will, certain children of that parent are entitled to a $5,000 Year’s Allowance for the child’s support under NCGS Section 30-17. For the child to be entitled to that allowance, the father within one year after the child’s birth must have recognized the paternity of the child by paper writing, unless the deceased father died within one year after the child’s birth, without having acknowledged paternity before his death, and paternity was established by DNA testing.

The establishment of paternity can affect how real property passes by, through or from the father, so it could be very important for the child to take the necessary steps in a timely manner to establish the paternity of the deceased father, and it requires at least some extra steps for an attorney who searches title of real estate, to see whether or not the paternity of a child born out of wedlock has been established.

A minor child may establish paternity until after he or she has attained the age of majority, so there can be a delay of a number of years before the steps must be taken to protect the child’s inheritance rights.  In our opinion, the laws establishing paternity may be changed – simplified and improved – in the future, but in the meantime, steps should be taken to protect the child’s inheritance rights.

To consult with one of our firm’s attorneys, please call 336-725-2900.