If you recently experienced the loss of a parent, you are undoubtedly still going through the grieving process. The legal ramifications of your parent’s death may be the furthest thing from your mind at the moment. Nevertheless, your parent’s estate may need to be probated before the assets are distributed. At some point in that process, you may begin to wonder where you stand if your parents were never legally married. An Oklahoma City probate attorney at Parman & Easterday explains the inheritance rights of a child born out of wedlock in Oklahoma.
How Were “Illegitimate” Children Historically Treated?
Until relatively recently, children born out of wedlock were not treated well by society nor the law. In fact, a child born to unwed parents had very few (if any) legal rights in the vast majority of countries, including the United States. The Latin term used in the law for a child born out of wedlock was “filius nullius” which literally translated means “child of no one.” Such a child had no inheritance rights with regard to the father’s estate. Even more amazing to those of us living in the 21st century is that the same child also had no right to inherit from the mother’s estate. These “illegitimate” children didn’t begin to gain any rights until well into the 20th century. The shift began by referring to them as “children born out of wedlock” instead of illegitimate children. The law finally addressed this glaring inequity in the 1968 U.S. Supreme Court case of Levy v. Louisiana. That case held that state laws that denied children born out of wedlock legal rights based on their “illegitimacy” were unconstitutional under the Equal Protection Clause. A decade later, in Trimble v. Gordon, the Supreme Court struck down a state law provision that denied a child born out of wedlock the right to inherit from her father unless the father’s Will stipulated the inheritance. Today, state laws usually acknowledge the inheritance rights of a child born out of wedlock. Nevertheless, those same children often continue to face impediments that can make collecting that inheritance much more difficult than it would be for a child born of the marriage.
What Does Oklahoma Law Say about Children Born Out of Wedlock?
The State of Oklahoma is one of the states that does acknowledge the rights of a child born out of wedlock to inherit from parents; however, Oklahoma also places some conditions on that acknowledgment. Oklahoma Statutes §84-215 governs the right of a child born out of wedlock to inherit from the estate of the mother or father, stating as follows:
For inheritance purposes, a child born out of wedlock stands in the same relation to his mother and her kindred, and she and her kindred to the child, as if that child had been born in wedlock. For like purposes, every such child stands in identical relation to his father and his kindred, and the latter and his kindred to the child, whenever:
- the father, in writing, signed in the presence of a competent witness acknowledges himself to be the father of the child
- the father and mother intermarried subsequent to the child’s birth, and the father, after such marriage, acknowledged the child as his own or adopted him into his family
- the father publicly acknowledged such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock
- the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction.
For all purposes, the issue of all marriages null in law, or dissolved by divorce, are deemed to have been born in wedlock.
The Oklahoma law is similar to many other state laws in that it puts the burden on a child born out of wedlock to prove the relationship to the parent.
Contact an Oklahoma City Probate Attorney
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about your inheritance rights, contact an experienced Oklahoma City probate attorney at Parman & Easterday by calling 405-843-6100 to schedule your appointment today.
- Why You May Need a Trust Instead of a Simple Will - December 7, 2023
- Elder Law Answers: Government Benefits for Seniors - December 5, 2023
- Will Your Second Home Go Through Ancillary Probate? - November 30, 2023