Estate Planning and Unrecognized Children: How to Proceed?

Document for Will and Estate Planning in notary office
Last Updated on August 17, 2022 by Carlos Lopez

By now, you are probably aware of everything you need to know about estate planning from the information I have given you in past articles and you agree that it is a rather simple task, consisting of protecting your loved ones and preparing the distribution of assets for when you are incapacitated or deceased.

However, there is one point I have not yet addressed and that is that this estate planning can be more complicated when you have not taken into account children out of marriage and even unrecognized children.

1. Are illegitimate children considered beneficiaries of estate planning?

In case you are unsure, for years, the legal rights of non-legitimate children with respect to trusts and to be beneficiaries of estate plans have been the subject of countless lawsuits.

In its most common definition, illegitimate children are children born out of marriage or to unmarried parents, however, the ones I will focus on here are children born to one (or both partners) of an extramarital affair.

2. In this case, how is an illegitimate child dealt with in Estate Planning?

I will be clear on this, an illegitimate (or unrecognized) child, for practical purposes, has the same rights as any other child for legal inheritance purposes.

Keep in mind that as of today, a person’s inheritance rights are very rarely affected by their legitimacy.

This is why most states decide these issues on the basis of parentage, e.g., an unrecognized child is entitled to inherit from both of his or her legally recognized parents, not if they were married at the time of his or her birth.

In the courts, they usually infer that the married parents are at the same time the legal parents of the child in question, on the other hand, an illegitimate child must prove that the deceased was a legal parent in order to have access to the inheritance left by the latter.

As this is a state-by-state decision, I advise you to consult the laws of your own state for specific information or to hire an attorney who specializes in these matters.

3. State laws take precedence when contesting a Will

As we have seen in previous articles, the laws of each state must be taken into account when creating and executing a will or estate planning for an individual.

Under current law, each of the states recognize the right of an unrecognized child (born out of wedlock) to inherit from his or her mother, but in the case of the father a number of factors must be taken into account that will determine whether or under what conditions he or she may.

In some courts, there is a consensus that a child born out of wedlock is a legal child and therefore a beneficiary of an estate plan (or trust), if his father’s paternity was verified while he was alive and it is shown that he had knowledge of his unacknowledged child.

Other courts to rule on a will contest case will only require proof that the deceased father is your legal father through a DNA test, which can be taken even after his death.

To avoid these inconveniences if you have unacknowledged children and you want to avoid wasting time, money and a lot of drama, you could prove paternity by signing a declaration of paternity or parentage, in which you acknowledge your child’s parentage.

4. Are you an unrecognized child of someone and want to contest their will or estate planning?

Here I can only give you this recommendation, if you want to avoid eliminating your right to inheritance, the child of the inheritance holder should look for a specialized lawyer with experience in wills and inheritance.

If you go hand in hand with a legal professional who knows very well the laws of the state against this type of cases, surely you will be able to access the inheritance that was bequeathed to you, even if you have not been in the document left for that purpose.

Estate Planning Lawyer in Washington, D.C.

At Lopez Law Firm LLC we have broad experience in estate planning cases that have not taken into account unrecognized children in their drafting. Schedule your consultation today!