§ 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,
§ 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
(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
(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,
(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
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
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
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