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When a child is born outside of marriage, when is the child considered a child of the father for purposes of intestate succession (when someone dies without a will)?

Posted on Jun 24 2013 8:22PM by Attorney, Jason A. Lee

T.C.A. § 31-2-105(a)(2) provides the rules to determine when child is considered a child of a father when the child was born outside of marriage ("wedlock" is the term used in the statute).  Specifically, T.C.A. § 31-2-105 provides as follows:

 

(a) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent; and

(2) In cases not covered by subdivision (a)(1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

(A) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(B) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this subdivision (a)(2)(B) is ineffective to qualify the father or the father's kindred to inherit from or through the child unless the father has openly treated the child as the father's, and has not refused to support the child.

(b) In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the parent ordered to receive support or to the parent's estate if deceased.

(c) Nothing in this section shall be construed to prevent a child from inheriting from a parent through intestate succession.

 

As a result there are two possible ways to determine whether a child born outside of marriage is considered a child of the “father” before or after the death of the father.  Basically the child is considered to be a child of the “father” if the parents participated in a marriage ceremony before or after the birth of the child (even when the attempted marriage is void).  The second way the child will be considered a child of the father is by adjudication before or after the death of the alleged father (a legal proceeding to establish paternity).  The standard of evidence required to establish paternity under this second options is the “clear and convincing proof” standard. 

 

The clear and convincing evidence standard is a high standard under Tennessee law.  The Tennessee Supreme Court discussed this standard of evidence in Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992).  In footnote number three the Court stated that "clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." Hodges at 901.

 

Interestingly, the father and the father's kindred cannot inherit from the child unless the father actually treated the child openly as his own child and did not refuse to support the child.  Additionally, no parent can inherit from a child through intestate succession until all past child support is paid with interest.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.

TAGS: Intestate, Intestate Succession, Minor Children, Tennessee Probate Law
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