One of the most important and interesting conversations among inheritance law scholars has been the role genetic connection should play in establishing parentage and rendering a nonmarital child eligible to inherit from her father.  The advent of easy and reliable genetic testing has crystallized the issue and focused scholars on which paradigm we should adopt now that we no longer need “surrogate” rules in intestacy statutes, e.g., acknowledgement by a putative nonmarital father, to help establish whether a child is likely that man’s child.   There is a spectrum in terms of potential paradigms, running from a purely genetic model at one end where a DNA test establishing paternity would make a nonmarital child eligible to inherit even if she had no relationship with her father to a purely functional approach where the father’s behavior and intent would be the linchpin of whether the child is eligible to inherit, regardless of her genetic connection.  I would characterize the former  model as a “child-centric” model where the interests of the nonmarital child trump that of the father and his other marital children since the nonmarital child does not have to rely on the father to take any affirmative action like acknowledgement in order for the child to be eligible to inherit.

In her recent article 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?, Camille Davidson argues for the adoption of such a child-centric model of establishing paternity in the area of inheritance law. She highlights some of the historical antecedents of our current patchwork of state laws on defining paternity.  Davidson also adopts a comparative lens in evaluating how states should embrace the genetic connection between a nonmarital child and her father as dispositive of not only of paternity but of her eligibility to inherit from him.  In so doing, Davidson makes a compelling argument for this approach and adds an important voice to the academic conversation in this area of inheritance law.

Davidson begins by noting the dramatically different results in eligibility for inheritance between some other countries and many states in the United States. She contrasts Iceland with North Carolina and notes that a nonmarital child would inherit in Iceland simply by virtue of establishing a genetic connection with her father. As Davidson correctly notes, this is not the case in many American states where a child would have to establish more – for example, that her father acknowledged her – in order to be eligible to inherit.  She advocates for a uniform rule akin to the rule in Iceland where genetic connection alone would entitle that child to take her share of her father’s estate. This would be regardless of the father’s knowledge that the child even existed or despite behavior on his part that would indicate a lack of intent for a nonmarital child to inherit.

To support her argument, Davidson traces the history of United States Supreme Court jurisprudence as it establishes the parameters for states to enact statutes that apply different inheritance rules for children born inside and outside of wedlock.  She then details the various state laws that govern intestacy and inheritance as applied to no marital children. These include statutes like that in North Carolina, which requires that a formal adjudication of paternity or the father must acknowledge the child in writing and file it with the court. Davidson attributes these requirements, in part, to the period during which slavery existed in this country. The slave masters, who were white, had both legitimate and non-legitimate families. Despite the genetic connection between the master and the nonmarital children who were slaves, they could not be heirs.  She quotes from a 19th century Kentucky case in which the judge wrote, “the father of a slave is unknown to our law…”

Davidson argues that the inconsistent treatment of nonmarital children not only yields inconsistent results, it is also violative of the Equal Protection Clause. She notes that with the advent of easy DNA testing, there is no longer an arguable state interest in the orderly disposition of estates that the United States Supreme Court has found justifies different burdens in the past. I agree and have argued that the entire analytical framework of cases like Trimble 1 and Lalli 2 is undermined by the advances in such testing and that the cases warrant reconsideration. 3

I would like to see Davidson identify and grapple a bit more with the counter-arguments to the adoption of a model which provides that a pure genetic connection renders a nonmarital child eligible to inherit.  Those counter-arguments have been made by scholars like Lee-ford Tritt who would adopt a purely functional approach to parentage 4 and there are important counterpoints to the argument that Davidson makes that it is the interest of the nonmarital child which should trump those of the genetic father or his other children, even in cases where the father has not relationship with the child.

It would also be useful for Davidson to more fully address the sound arguments in favor of a child-centric paradigm.  For example, such fathers can always opt out of the default rules and exclude nonmarital children by will.  There are also different goals for establishing paternity for family law purposes, for example determining custody and child support, as opposed to those of inheritance law which is more focused on the reallocation of property post-death. 5  I hope to see Davidson build on these arguments in future articles.  In this article, Davidson contributes much to the ongoing conversation by once again staking out the ground for a child-centric model of parentage in inheritance law.

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  1. Trimble v. Gordon, 430 U.S. 762 (1977).
  2. Lalli v. Lalli, 439 U.S. 259 (1978).
  3. See Paula A. Monopoli, Nonmarital Children and Post-Death Parentage: A Different Path for Inheritance Law48 Santa Clara L. Rev. 857 (2008).
  4. See Lee-ford Tritt, Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession62 SMU L. Rev. 101 (2009).
  5. See Monopoli, Nonmarital Children and Post-Death Parentage: A Different Path for Inheritance Law.