Mother's Baby, Father's Maybe! - Intestate Succession: When Should a Child Born out of Wedlock Have a Right to Inherit from or through His or Her Biological Father?

By Davidson, Camille M. | Columbia Journal of Gender and Law, Winter 2012 | Go to article overview

Mother's Baby, Father's Maybe! - Intestate Succession: When Should a Child Born out of Wedlock Have a Right to Inherit from or through His or Her Biological Father?


Davidson, Camille M., Columbia Journal of Gender and Law


III. The Supreme Court Has Weighed in On the Issue of Inheritance and the Out-of-Wedlock Child; North Carolina and Similar State Statutes Violate the Equal Protection Clause of the Fourteenth Amendment

A. The Supreme Court Weighs In On Out-of-Wedlock Paternal Intestate Inheritance

The Supreme Court of the United States supports my proposition that children should not be treated differently because of the marital status of their parents. Although "[t]he matter of legitimation of children is peculiarly the creature of legislation, and its existence is solely dependent upon the law and policy of each particular state," (106) the United States Supreme Court "has held that the Equal Protection and Due Process Clauses of the Fourteenth and Fifth Amendments apply to state and federal illegitimacy law. As a consequence, constitutional law has superseded an area of state law to which the federal judiciary has traditionally given great deference." (107)

As early as 1968, the Court condemned classifications based on the marital status of a child's parents (108) The Court recognized that it had "invoked equal protection principles to protect other minority groups from arbitrary governmental action, and discriminations based on status of birth [were] closely analogous to those predicated on race and ancestry." (109) It therefore determined that "[s]ince illegitimacy is a status which attaches to a person at birth as the result of conduct of other persons, due process should preclude the denial of rights otherwise available to him on that basis." (110) The Supreme Court's most recent reasoning on the issue of the out-of-wedlock child's right to inherit from his father's intestate estate can be seen in Trimble v. Gordon (111) and Lalli v. Lalli. (112)

In Trimble, the appellants, Deta Mona Trimble and her mother, challenged a portion of the Illinois Probate Act that allowed children born out of wedlock to inherit only from their mother through intestate succession. The appellants alleged that the statute violated the Equal Protection Clause of the Fourteenth Amendment. The appellees' argument was that "Illinois has a legitimate interest in satisfying the 'presumed intent' of decedents who die intestate and that the state furthers that interest by excluding all illegitimate children from intestate succession from their fathers." (113)

Deta Mona Trimble was the only child of Sherman Gordon. (114) Gordon was killed at the age of twenty-eight during a Chicago homicide, and he died intestate. Though Gordon and Deta's mother never married, they were living together when Deta was born. Additionally, Gordon had legally acknowledged Deta, and a court had ordered him to pay weekly child support payments. If Deta Mona had been born into a marital union, there would have been no lawsuit. She would have inherited Gordon's estate as his only surviving child. However, at Gordon's death, Deta was not included as his heir because of the language in Chapter 12 of the Illinois Probate Act. The Act stated that when a person dies intestate, "[a]n illegitimate child is heir of his mother and of any maternal ancestor, and of any person from whom his mother might have inherited, if living." (115) Further, "[a] child who was illegitimate whose parents intermarry and who is acknowledged by the father as the father's child is legitimate." (116) Thus, Deta could not inherit from her father's estate because she was born outside of a marital union, and her parents never later married.

The United States Supreme Court reversed the Illinois Supreme Court that favored the appellees and remanded the case "for further proceedings not inconsistent with [the] opinion." (117) The Court determined that the Illinois statute violated the Equal Protection Clause of the Constitution. With Justice Powell writing for the majority, the Court stated that while strict scrutiny does not apply to classifications based on legitimacy, "[i]n a case like this, the Equal Protection Clause requires more than the mere incantation of a proper state purpose.

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Mother's Baby, Father's Maybe! - Intestate Succession: When Should a Child Born out of Wedlock Have a Right to Inherit from or through His or Her Biological Father?
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