San Diego Estate Planning Lawyer Blog
When the law speaks of “heirs,” it refers to those individuals entitled to inherit a person’s estate in the absence of a valid last will and testament. For example, if you live in California and die without a will or a spouse, but you do have children, those children are your heirs and inherit your estate. “Children” includes your biological offspring, as well as any children you legally adopted during your lifetime.
But what about children whose paternity is unsettled? California law states, for purposes of inheriting an estate, paternity must be “established by clear and convincing evidence that the father has openly held out the child as his own.” A court may also enter an order during the father’s lifetime establishing paternity, whether or not he acknowledges a child as his own. If for some reason the father was unable to acknowledge paternity, it may be established after his death, also by the “clear and convincing evidence” standard.
Different States Have Different Rules
In some states, it is not enough for an alleged father to simply acknowledge a child as his own. An appeals court in Georgia recently dealt with such a situation. The deceased, James Hawkins, died without a will or spouse. He had, however, acknowledged his girlfriend’s son as his child. In fact, Hawkins was not the biological father. He did acknowledge paternity on an official state form, but the document was not notarized. Georgia law requires a “sworn statement” to prove paternity, and both a trial court and the Georgia Court of Appeals agreed the un-notarized form did not qualify.
One of the appeals court judges noted this case illustrated the problem with “administrative legitimation,” which has been permitted in Georgia since 2005. The judge explained the process enables couples to “create a wholly fictitious father-child relationship, which is tantamount to an adoption without any of the procedural and due process safeguards of the adoption statutes for the actual, biological father.”
Plan Ahead to Avoid Confusion Later
Like Georgia, California allows a person to acknowledge paternity via a properly notarized form. But unlike the case discussed above, California does not necessarily require written proof paternity in order for a child to inherit. As a California Court of Appeal panel noted in a 2011 decision, the law only requires a putative father “acknowledge” the child as his own: “A written acknowledgment [is] not required, and proof by way of a word or act will suffice.” Again, a court would look at all of the available evidence in determining whether a parent-child relationship existed
Of course, issues regarding legitimacy only matter if you die without a will. If you make a proper estate plan, you can leave your estate to whomever you wish, regardless of your specific legal relationships. A good estate plan is especially important if you have property in different states-say you live in California but own real estate in Georgia-and you want to avoid a complicated examination of your family situation under possibly conflicting state laws. If you have any questions about this, or any other estate planning issue, contact the Law Office of Scott C. Soady in San Diego today.