Inheritance Rights in Virginia of Children Born Out of Wedlock

I have been involved in several cases dealing with the inheritance rights of children born out of wedlock, specifically such children inheriting from their father.  These cases generally only arise when the alleged father died without a will (known as “intestate”), though it could possibly arise in some cases where there is a last will and testament. 

Virginia law has changed over the years regarding the inheritance rights of illegitimate children (a term that I am not a fan of, and thankfully, seems to be used less and less).  Children born out of wedlock can inherit from their mother.  It used to be that children born out of wedlock could not inherit from their father. 

Since 1978, under Virginia Code Section 64.2-102, children born out of wedlock can also inherit from their father, in one of two circumstances: (1) the parents get married before or after the child is born, but the marriage is deemed invalid under the law, or (2) paternity is proved by clear and convincing evidence.  Virginia Code Section 64.1-103 lists various methods or proof that constitutes “clear and convincing evidence”.  They are:

 

1. That he cohabited openly with the mother during all of the 10 months immediately prior to the time the child was born;

2. That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth record of the child;

3. That he allowed by a general course of conduct the common use of his surname by the child;

4. That he claimed the child as his child on any statement, tax return, or other document filed and signed by him with any local, state, or federal government or any agency thereof;

5. That he admitted before any court having jurisdiction to determine his paternity that he is the father of the child;

6. That he voluntarily admitted paternity in writing under oath;

7. The results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence; or

8. Other medical, scientific, or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.

 

In one case I handled, the father’s name was on the birth certificate (number 2) and the father had admitted paternity in child support case in another state (number 5). 

In a more recent case, my client (the putative child) reached an agreement with the siblings of the decedent (who would inherit if my client were not the child of the decedent) that my client and a brother of the decedent would submit to avuncular and Y-STR DNA testing and be bound by the results.  The siblings and other family members denied that my client was the son, but the DNA testing proved otherwise. 

A couple of important things to note if a person believes they are the natural child of someone who died: 

First, the statue requires that within one year from the decedent’s date of death (not the opening of probate) the child files an affidavit with the court alleging that they are the natural child of the decedent and a suit is filed to establish paternity.  Failure to do so cuts off the right to inherit.  (The requirement does not apply if (1) the father’s name is on the birth certificate, (2) paternity has been admitted by the father in court or in writing under oath or (3) a court has already declared paternity). 

Second, if DNA testing is being considered, and the father is deceased and interred, it appears that the child has the right to get a court order to exhume the father for a DNA sample, if the child pays the costs for doing so.  A fairly recent Virginia Supreme Court case said that a putative child could not be denied the right to exhume as long as it is for the purpose of attempting to prove paternity. 

There are additional factors and considerations when considering an attempt to prove paternity for inheritance purposes, and this article is not intended to be an exhaustive discussion.  Feel free to contact me with questions.

Virginia's Statutory Allowances: Family Allowance, Exempt Property Allowance and Homestead Allowance

Under Virginia's probate laws, there are some allowances provided for by statute that benefit the surviving spouse, and the minor children, of the decedent.  These allowances are also called exemptions because they have priority over the debts of the decedent (at least unsecured debts) and are therefore exempt from the reach of creditors. There are three statutory allowances: the family allowance, the exempt property allowance and the homestead allowance.

Though this is a somewhat oversimplified explanation, these allowances generally were enacted to provide the surviving spouse and the minor children with funds for living expenses during the period right after the decedent's death, and some of the tangible property (like furniture and furnishings) belonging to the decedent. 

I find that many people do not know these statutory allowances exist.  They are very high priority claims in the pecking order of claims against a Virginia estate, coming behind only the costs of administration.  But, keep in mind that the lien of secured creditors (like a mortgage) are still valid.

The family allowance can be up to $18,000,and can be paid as a lump sum or monthly (the monthly payment for the full $18,000 allowance would be $1500 per month for one year).  The statute does provide some discretion to the personal representative (executor or administrator) to reduce the amount of the family allowance, if the surviving spouse otherwise has sufficient assets and does not have a need for the full amount of, or even any part of, the family allowance.  This obviously can lead to some conflict between the surviving spouse and the personal representative.   Ultimately, if no agreement can be reached, the court will make a ruling.   Practically speaking, these disputes rarely go to court because the amount of money involved in the dispute is not enough to warrant litigating.

The exempt property allowance entitles the spouse (and minor children ) to pick up to $15,000 worth of tangible personal property, including automobiles , in satisfaction of the exempt property allowance. 

The homestead allowance is a $15,000 payment to the surviving spouse and minor children.   If there are no minor children, the full $15,000 can be paid to the surviving spouse.

All of these allowances are in addition to what the surviving spouse and minor children may receive from the estate.  However, if the surviving spouse takes the homestead allowance, he or she cannot then claim the elective share of the augmented estate (which has been discussed in previous posts).

To be entitled to these allowances, the surviving spouse (and minor children, if any) must file a written claim for them or appear in person in the court where the estate is being administered within one year of the decedent's death. 

There can be other issues relating to these Virginia statutory allowances and their payment, particularly when the estate has limited assets or is insolvent, but they are beyond the scope of this post.   The point is, if you are a surviving spouse or are the personal representative of an estate who has been presented with these claims, you need to proceed carefully and in accordance with the statutes to make sure that these allowances are handled properly.

Please feel free to give me a call or send me an email if you have any questions.