Can an Illegitimate Child Claim Inheritance?

The term illegitimate child—historically used to describe a child born to unmarried parents—is largely outdated in modern legal contexts. Today, inheritance rights are typically based on legal parentage, not the marital status of the parents. In most states, a child has the right to inherit from both legally recognized parents, regardless of whether the parents were married at the time of birth. Courts generally presume that a child born to a married couple is the legal child of both spouses, while a child born outside of marriage may need to establish a legal relationship with the deceased. Because inheritance laws vary by state, it’s worth reviewing your own state’s statutes for specifics.

If you have an inheritance you want to make the most of, consider working with a financial advisor.

What Is an Illegitimate Child?

An illegitimate child is one whose parents are not legally married at the time of their birth. That does not change if the child’s parents get married later. Courts and lawmakers have largely stopped using this term because of its fairly ugly social history. Today, most courts use the more technical term “non-marital children.”

Historically, courts assigned legal significance to illegitimacy, but it’s rarely an applied concept today. There are few circumstances under which an individual’s parentage affects their legal status. Sometimes it comes up if someone is attempting to establish citizenship rights through parentage.

However, even in these rare circumstances parentage and legitimacy are not the same thing. Modern courts often treat legitimacy as shorthand for legal parentage. Historically, courts based your legal rights on whether your parents were married when you were born. Today your legal rights may be determined by legal parentage. A court will look at legitimacy as one way of establishing who your legal parents are. This process is referred to as establishing maternity (legal mother) or paternity (legal father).

Keep in mind that most—but not all—states do not recognize common-law marriages.

Who Can Claim an Inheritance?

Any legally recognized heir may claim an inheritance, and that includes non-marital children. Most modern inheritance laws focus on whether a legal parent-child relationship existed—not whether the parents were married. As with parentage, inheritance is a highly state-specific matter. Make sure you look up the law in your own state before making any decisions.

In most states, a child can inherit from a parent if they can prove legal parentage. For children born to married parents, the law typically assumes both spouses are legal parents. For children born outside of marriage, that legal connection may need to be established through documentation such as birth certificates, court orders or evidence of acknowledgment or support from the parent.

If a parent died without a will (intestate), state law governs how the estate is distributed. A non-marital child has the same legal standing as a marital child if parentage was legally established before the parent’s death. Without that proof, the child may have no claim under intestate succession rules.

A valid will can override default rules, allowing a parent to leave assets to any individual, regardless of legal status. However, even then, disputes can arise if someone challenges the will or claims to be an overlooked heir.

How an Illegitimate Child Can Claim an Inheritance

Proving paternity is a key step for illegitimate children seeking to claim an inheritance. States may allow paternity to be established through various means, such as a court order, genetic testing or voluntary acknowledgment by the father. If paternity was established while the father was alive—such as through inclusion on a birth certificate or a formal declaration—it is generally easier for the child to assert inheritance rights.

When paternity was not established before death, some states permit posthumous claims. This may involve DNA testing of the deceased or close relatives. Courts may also consider other evidence, such as written communication or testimony, to determine whether the deceased acknowledged the child as their own. The burden of proof often falls on the child or the child’s legal representative.

Can Illegitimate Children Collect Survivor Benefits?

Non-marital children can collect Social Security survivor benefits if they meet the eligibility requirements. The Social Security Administration (SSA) does not base eligibility on whether the child’s parents were married. Instead, it looks at whether the deceased parent was legally recognized as the child’s parent under state law.

To qualify, a child must generally be unmarried, under age 18 (or up to 19 if still in high school), and able to prove a legal parent-child relationship. This can be established in several ways, such as having the parent’s name on the birth certificate, a court order of paternity, or written acknowledgment by the parent. In some cases, the SSA may accept evidence showing the parent lived with or supported the child.

If parentage was never legally established before death, the SSA may deny survivor benefits unless the child can meet specific state-law criteria for inheritance. Each case is reviewed individually, and documentation plays a key role. When in doubt, the SSA encourages families to apply and provide as much evidence as possible.

Determining Parentage

Legal parentage is an issue of family and property law, both of which are heavily governed by state statute. Every state will have its own laws on these issues, and some may vary widely from each other. However, most states establish parentage in similar manners.

States have two main mechanisms for recognizing a legal mother:

• Unless otherwise established, a child’s birth mother is their legal mother.
• If the birth mother has formally given up her parental rights, then someone else can adopt the child and become their legal mother.

Few, if any, states deviate from this practice.

The result of this system is that courts rarely question maternity. Establishing maternity is usually handled through hospital paperwork. Most people use documents like health records or birth certificates to prove their birth mother’s identity. Changing that requires established, proven paperwork of adoption. This is not universal. Home births still occur, as does lost paperwork and other edge-case scenarios, but it is rare for someone to need to prove maternity.

Paternity can often be more difficult to prove. This is also an area where there is more diversity among state laws. While the process below is common, it is extremely important to find out how your individual state handles these matters. Most states recognize someone’s legal father in the following ways:

• The individual who has acknowledged legal paternity.
• If there is no one who has established themselves as the child’s father, the individual who conceived the child.
• If the child’s biological father is known, he can formally give up parental rights. In this case, someone else can adopt the child and become the legal father.

Bottom Line

Good estate planning can prevent confusion about a non-marital child’s inheritance rights. In most states an illegitimate child can claim an inheritance so long as they can show that the deceased was their legal parent, and that this parentage was established before death. Legitimacy creates a presumption of legal parentage, but it rarely creates direct inheritance rights.

Inheritance Tips

• Handling an inheritance can be stressful as well as confusing. The insights and guidance of a financial advisor can ease stress and reduce confusion in these situations. Finding a qualified financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
• If you want to leave money for children to help pay for college, you could open a UTMA account. However, a 529 plan can sometimes offer more flexibility. A 529 college savings plan allows you to save for college on a tax-advantaged basis while naming your child as a beneficiary. You act as the participant and you can name another adult to act as successor participant if something happens to you. Once your child is ready to go to college they can withdraw funds for qualified higher education expenses tax free. Any unused money could be transferred to another beneficiary.

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