In the past, illegitimacy used to be a significant social stigma. A child born out of wedlock faced many legal handicaps including, but not limited to, the right of the "love child" to inherit from the married parent. These barriers have largely been swept away, but there are some important considerations to keep in mind if you have a non-traditional family.
If you create a last will and testament, then you are free to leave your assets to anyone you choose whether you are related or not. If you die without any estate planning, then the division of your assets will be determined according to Michigan's intestate succession laws. Children are considered to be the heirs of their natural parents regardless of marital status, provided that a parent-child relationship has been established. MCL 700.2114(1). This parent-child relationship is created by any of the following methods.
- If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession. MCL 700.2114(1)(a). This presumption still holds even if the marriage is annulled or voided for any reason. Only the spouse presumed to be the natural parent can disprove a presumption of a parent-child relationship (e.g. the cuckold husband must disprove his paternity to his wife's "love child"). Otherwise, the right to defeat this presumption terminates upon the death of the presumed parent (meaning that heirs cannot challenge the presumption of wedlock paternity in probate court). MCL 700.2114(6). A child not conceived or born during a marriage but whose parents married later will be considered born in wedlock. MCL 700.2114(1)(c).
- If a child is born or conceived during a marriage but is not the issue of that marriage, a man is considered to be the child's natural father for purposes of intestate succession if any of the following occur:
- The man joins with the child's mother and acknowledges that child as his child by completing an acknowledgment of parentage as prescribed in the acknowledgment of parentage act. MCL 700.2114(1)(b)(i).
- The man joins the mother in a written request for a correction of certificate of birth pertaining to the child that results in issuance of a substituted certificate recording the child's birth. MCL 700.2114(1)(b)(ii).
- The man and child have established a mutually acknowledged relationship of parent and child that begins before the child becomes age 18 and continues until terminated by the death of either. MCL 700.2114(1)(b)(iii).
- The man is determined to be the child's father and an order of filiation establishing that paternity is entered as provided in the paternity act. MCL 700.2114(1)(b)(iv).
- Regardless of the child's age or whether or not the alleged father has died, the court with jurisdiction over probate proceedings relating to the decedent's estate determines that the man is the child's father, using the standards and procedures established under the paternity act. MCL 700.2114(1)(b)(v).
- The man is determined to be the father in an action under the revocation of paternity act. MCL 700.2114(1)(b)(Vi).
A child who is legally adopted is considered the child of the adoptive parents and not the natural parental for the purposes of intestate succession. MCL 700.2114(2). The release of parental rights by a natural parent or the involuntary termination of parental rights by a court of competent jurisdiction will also sever the parent-child relationship for the purposes of intestate succession. MCL 700.2114(5).
A severed link in the parent-child relationship will cut off the right to inherit from other family members further down the bloodline. For example, if a grandfather has a son whose parental rights were terminated to his daughter, then that daughter will lose the right to inherit from her grandfather. In addition, "[i]nheritance from or through a child by either natural parent or his or her kindred is precluded unless that natural parent has openly treated the child as his or hers, and has not refused to support the child." MCL 700.2114(4). This additional requirement can preclude inheritance even if the natural parent established legal paternity under MCL 700.2114(1).
The rights of a child born out of wedlock to inherit has led to very interesting litigation in the probate court. The acknowledged family may feel resentful that they have to share their inheritance with a "love child" who never had a relationship with the deceased parent. Conversely, the wayward child may feel vengeful towards the decedent who never bothered to acknowledge his or her existence and feels that the only way to "get back" at that biological parent is to get as many assets as possible from the estate.
- In re Estate of Koehler, 314 Mich App 667; 888 NW2d 432 (2016) - The personal representative argues that decedent's relatives should not inherit portion of estate because the decedent's biological father died prior to decedent's birth and did not establish paternity or financially support the decedent as a result, arguable cutting off parent-child bond according to MCL 700.2114(4). The Michigan Court of Appeals found that, ordinarily, two separate and distinct conditions must be fulfilled before a court may foreclose a parent's right to intestate inheritance from a child: (1) that the natural parent failed to "openly treat the child as his" and (2) that the natural parent "refused to support the child". Id at 681. However, applying MCL 700.2114 here would defeat the purpose "by forcing the descendants of a posthumous child to prove that the parent would have acknowledged and supported the child had the parent survived." Id at 686. Therefore, applying this statute "to a nonmarital, posthumous child contradicts the central thrust of other intestacy provisions of EPIC". Id at 686.
- In re Daniels Estate, 301 Mich App 450; 837 NW2d 1 (2013) - Petitioner appeals her removal as personal representative by the Respondent and Petitioner contended that Respondent must prove he is a biological son of the decedent to be an heir within the meaning of MCL 700.2114(1)(b)(iii). MCL 700.2114(b) states "[i]f a child is born out of wedlock or if a child is born or conceived during a marriage but is not the issue of that marriage, a man is considered to be the child's natural father for purposes of intestate succession if any of the following occur: (iii) The man and child have established a mutually acknowledged relationship of parent and child that begins before the child becomes age 18 and continues until terminated by the death of either." Id at 454. Requiring that the child is a biological child is inconsistent with the language of the statute. Id at 455. "[A] man "considered" to be a child's natural father is someone who is regarded, deemed, believed, supposed, or thought of as the child's natural father." Id at 455. "Therefore, the plain language of the statute contemplates that, in some situations, a man may not be the child's biological father, but he will nevertheless be considered the child's natural father." Id at 455. Since the Respondent established there was a parent-child bond between himself and the decedent, there is no need to prove a biological connection.
- In re Certified Question From United States District Court For Western District of Michigan, 493 Mich 70; 825 NW2d 566 (2012) - Plaintiff gave birth to twins who were conceived by artificial insemination after their biological father had died and sought social security survivor's benefits for the children based on his earnings, but the Social Security Administration denied the application and asked the U.S. District Court to determine whether the children can inherit from the biological father under Michigan's intestacy law. Plaintiff was married to the biological father and he deposited sperm into sperm bank due to his chemotherapy treatments damaging his ability to further have children. Id at 73. Plaintiff was inseminated with his sperm after he unexpectedly died in 2001. Id at 73. The Court held that "Michigan law has long established that the rights to intestate inheritance vest at the time of a decedent's death". Id at 76. MCL 700.2106(3)(b) defines "surviving descendant as "a descendant who neither predeceased the decedent nor is considered to have predeceased the decedent". Id at 77. MCL 700.2014 states that "[a]n individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of . . . intestate succession, and the decedent's heirs are determined accordingly." Id at 77. Plaintiff's twin girls therefore cannot inherit from their biological father by intestate succession because they fail to fall into any of these two statutory groups. Id at 78.
- In re Turpening Estate, 258 Mich App 464; 671 NW2d 567 (2003) - Respondent, the father of the deceased daughter, denied he knew of the decedent's existence for the first thirty years of her life, despite evidence to the contrary, and first acknowledged the child as his own at age thirty. Id at 467. "Because respondent never once acknowledged, or visited the decedent when she was a child (i.e., before the decedent reached the age of eighteen) respondent cannot meet the first prong of the statute: that he openly treated the child as his own." Id at 467. Respondent also properly found to have "refused to support the child" when "decedent's grandmother testified at length that she asked respondent on numerous occasions to help the decedent's mother with support of the decedent" but "[e]ach time respondent denied decedent was his child". Id at 467. The Michigan Court of Appeals found that the Respondent was properly barred from inheriting from his daughter when he did not 'openly treated the child as his' and had 'refused to support the child'." Id at 468.
Since the frequency of non-traditional families is more commonplace, the chances that a parent-child bond in a probate proceeding will be questioned is higher. If you believe that you are an heir to a decedent's estate but are encountering opposition from other family members on questions of paternity, then it is imperative that you seek the advice of a skilled probate lawyer to determine your rights. The non-recognition by surviving family members is not a barrier to inheritance if all of the parent-child connections between the love child and the decedent satisfy the requirements of the statute. If a proposed heir waits too long to assert his or her rights, it may be too late. If you have any further questions about your rights to inherit or any aspect of the probate process, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC.