Establishing Paternity Prior to Death is Vital, Especially if Children are Born Out-of-Wedlock
Posted in Probate and Trust Litigation on June 15, 2016
Establishing Paternity Prior to Death is Vital, especially if Children are born Out-of-Wedlock
It is becoming more apparent, that given the growing non-traditional makeup of families today, that parents need to take affirmative steps to protect their children and their assets. If a child is born out-of-wedlock (aka illegitimate) in Ohio, a father must establish paternity during life in order for that child to inherit and receive the same status as “children” regarding all of the father’s affairs. Although post-mortem paternity may be established, it is much more tenuous and difficult.
Although Ohio Revised Code 2105.17 allows illegitimate children to inherit from their mothers, illegitimate children can inherit from their fathers under R.C. 2105.06 only if paternity is established prior to the death of the father (although you may protect a child will, trust, or other transfer on death mechanism). See In re Estate of Hicks (1993), 90 Ohio App. 3d 483, 487, 629 N.E.2d 1086.
If there is no last will and testament, illegitimate children can inherit from their fathers if it is shown that affirmative steps were taken by their father, which could include: (1) marrying the child’s mother; (2) providing for the child in a will; (3) adopting the child; (4) acknowledging the child pursuant to R.C. 2105.18; or (5) designating the child as his heir at law pursuant to R.C. 2105.15. Birman v. Sproat (1988), 47 Ohio App. 3d 65, 66, 546 N.E.2d 1354, citing White v. Randolph (1979), 59 Ohio St. 2d 6, 13 O.O.3d 3, 391 N.E.2d 333. Where the parent-child relationship is established prior to the father’s death, no differentiation is to be made in the rights of children based upon whether they were born in or out of wedlock. Id.
In order for a child to inherit from a father without a will (absent the acknowledgements listed above) via R.C. 2105.06 (Ohio’s statute of descent and distribution), then it may be possible to establish paternity after the father’s death—but this is unsettled law. For R.C. 2105.06(A) to apply, as of now, the law requires that when there is no surviving spouse, then any real or personal property passes to the decedent’s child or children. Where the parent-child relationship is established prior to the father’s death, no differentiation is made between the rights of children based on whether they were born in or out of wedlock. Byrd v. Trennor, 157 Ohio App.3d 358, 2004-Ohio-2736, 811 N.E.2d 549, ¶2 (2nd Dist.), ¶28.
Call us today if you have questions as to whether a child may be considered a “child” under the law, especially if the child was born out-of-wedlock.