Inheritance in Unusual Circumstances
State statutes of descent and distribution are usually supplemented by other statutes or court rulings governing inheritance in unusual circumstances. This article discusses some of those unusual circumstances.
A Posthumous Child
A posthumous child is a child born after the death of its mother or father. Most states provide that a child inherits from his or her deceased parent where it can be shown that the gestation period of the child began before the death of its parent.
In many states, the posthumous child principal has been expanded to all of an intestate’s relatives. The principle applies to all relatives of the intestate conceived before his death but born thereafter, known as afterborn heirs. Afterborn heirs inherit as if they had been born in the lifetime of the intestate.
Adoption is the process by which a person not the natural parent of a child becomes the legal parent of the child. Adoption effects the descent and distribution of an intestate’s net estate in several ways.
As if it were a natural child, an adopted child inherits from his or her adoptive parents. There is no consensus as to whether or not an adoptive child inherits through his or her adoptive parents (e.g., from a “grandparent by adoption”), and so it is especially important to consult an attorney in such a case. Although in the past most states ruled that the adopted child continued to inherit from his or her natural parents, most states now hold that the adopted child does not continue to inherit from his or her natural parents, except where the child was adopted by a stepparent. Likewise, most states now hold that the adopted child does not continue to inherit through his or her natural parents, except where the child was adopted by a stepparent.
Traditionally known as a bastard, an illegitimate child is a child born when his or her mother and father were not married. Most states permit an illegitimate child to inherit from and through his or her mother. Inheritance from and through the illegitimate child’s father depends on one of three circumstances. First, an illegitimate child inherits from and through his or her father if the father marries the illegitimate child’s mother. Second, an illegitimate child inherits from and through his or her father if the father acknowledges the illegitimate child during the father’s lifetime. Third, an illegitimate child inherits from and through his or her father if a parent-child relationship, paternity, is formally proven.
A few states permit an intestate to designate a person as his or her heir. Such a procedure is use where a will giving property to the designated heir might be challenged, and the person designating an heir is unable to marry, adopt, or prove paternity with the designated heir.