Momma's Baby. Daddy's? Maybe.
In the realm of estate planning, the old adage “momma’s baby, daddy’s maybe” takes on real legal significance. While a mother's link to her child is rarely in dispute, a father's connection—in the absence of marriage—can lead to severe consequences when proper estate planning is neglected.
In North Carolina, the law automatically recognizes children born out of wedlock as legitimate heirs of their mothers. However, for these children to inherit from their fathers, specific legal steps must be taken to establish paternity and legitimation. Without these measures, children may find themselves excluded from their father's estate, regardless of the personal relationship they shared.
“But Dad’s Name Is On My Birth Certificate.”
Many may assume that legitimation isn’t an issue as long as the father’s name is on the child’s birth certificate. However, in North Carolina, that’s not true. Even an “affidavit of parentage” signed by the father and filed with the NC Office of Vital Records is insufficient.
Establishing Legitimation in North Carolina
The North Carolina General Statutes outline five methods through which a child born out of wedlock can be legitimated and thus gain inheritance rights from the father:
Petition for Legitimation. The father may file a verified petition in the superior court to have the child declared legitimate. If granted, this establishes the child's right to inherit from the father.
Subsequent Marriage of Parents. If the child’s parents marry after the child’s birth, the child is automatically legitimated, securing inheritance rights from both parents.
Establishment of Paternity via Child Support Order. If paternity is established in a proceeding for non-support, the child gains inheritance rights from the father.
Written Acknowledgment of Paternity. The father can acknowledge paternity in a written instrument, executed before a certifying officer and filed with the clerk of superior court during the lifetimes of both father and child.
Posthumous DNA Testing. If the father dies before or within one year after the child's birth, and DNA testing establishes paternity, the child is entitled to inherit from the father.
However, even if one of these conditions is met, there are still other procedural requirements. For instance, an adult child must provide written notice of their claim to the personal representative of the father's estate within six months of the first publication or posting of the general notice to creditors. Failure to do so can result in the loss of inheritance rights.
Final Thought
Legitimacy issues underscore the importance of proactive estate planning. By executing a valid will or trust, individuals can ensure their assets are distributed according to their wishes, regardless of marital status or the legitimacy of their children under the law. Such planning not only provides clarity and peace of mind but also prevents potential disputes and unintended disinheritance.