The legal rights of illegitimate children and their ability to take under the terms of a trust have for years been the subject of many litigation proceedings. Illegitimate children are traditionally known as children who are born out of wedlock or to unmarried parents, however, the most widely known cases are those children who were born as the result of an affair by either or both parents. When one parent is the beneficiary of the grantor of a trust, the other spouse of the child, when old enough, may try to assert claims that they are also entitled to access the trust due to blood relation.
How Does an Illegitimate Child Take?
While traditionally under common law, an illegitimate child was not seen as a legal child of either parent, with no right of parental support or right of inheritance, today the laws have changed to better reflect the rights of an illegitimate child. Although states differ regarding their laws on wills and trusts, many now favor giving children rights, under statutes such as The Status of the Children Act as well as the Equal Protection Act. Under the Status of the Children Act, there is a presumption that any reference to children not further defined in a will includes both legitimate and illegitimate children, regardless of their relationship to the father.
This Act also applies to adopted children, another widely debated and controversial issue in estate planning. Traditionally, an adopted child could not take under the law for many years, however, today adopted children are presumed to be the child of the parent legally. Additionally, the Supreme Court has ruled that treating legitimate and illegitimate children differently under law, based on their father’s acknowledgement, for purposes of government benefits has been ruled unconstitutional.
Under modern law, all states recognize a child born out of wedlock’s right to inheritance from his mother, however, the right to inherit from their paternal father depends on a number of factors. Some courts will consider the child to be a legal child and thus a beneficiary of a trust if during the father’s lifetime, the father’s paternity was verified and he was aware of the child’ existence.
Other courts will establish inheritance simply by the child proving the father’s paternity through DNA testing, even after the father has died. One way that paternity is easily proven by the father signing a paternity or parenthood statement, which acknowledges the child’s relation.