Born out of Wedlock in North Carolina, Locked out of the Courthouse

Under current North Carolina law, children born outside of marriage cannot inherit from their fathers who die intestate (without a Will), unless they come under one of the exceptions described below in this article.  And no, being listed on the birth certificate as the father does not matter.  Unfortunately, few people will be able to claim one of these exceptions, and there is nothing that the children born out of wedlock can do themselves to become legitimated or have paternity established.  Once such a child reaches the age of 18, the age at which a person can bring a lawsuit for themselves in North Carolina, the paternity statute bars them from bringing a suit.  All exceptions require someone other than the child to take legal action that would then allow the child to inherit from his or her father.

This comes as a surprise to most people and causes great emotional pain to children born outside of marriage.  The current rules generate family conflict and create a class of people with less legal rights than their siblings born during a marriage.  According to a recent study, 41% of children born in North Carolina in 2015 were born outside of marriage (Annie E. Casey Foundation, Kids Count Data Center).  The author of the study believes that eventually these rules will be found unconstitutional, or will be updated by legislature to create a fairer process for those born outside of marriage to claim their inheritance.  However, until that time, these are the rules courts will follow.

Exceptions that allow children born outside of marriage to inherit from their father:

Actions the father can take during his lifetime:

  1. Make a Will. This is technically not inheriting, which happens when there is no Will, but is worth mentioning because it is an easy solution that does not require a court action.  The father may simply make a Will in which he gives property to his child born outside of marriage.

 

  1. Legitimize the child through a Legitimation proceeding in court. See North Carolina General Statute 49-10.

 

  1. Marry the mother of the child any time after the child is born. See North Carolina General Statute 49-12.

 

  1. Admit paternity of the child in writing, acknowledged by a notary or court officer, filed with the Clerk of Court in the County where either the father or child reside, during the father’s life and the life of the child. See North Carolina General Statute 29-19(b)(2).

 

Actions against the father that must be done during his lifetime:

  1. Criminal proceeding for non-support. The Court must find that he is the father of the child.  See North Carolina General Statutes 29-19(b)(1) and 49-1 through 49-9.

 

  1. Civil paternity suit against the father. The Court must find that he is the father of the child.  See North Carolina General Statutes 29-19(b)(1) and 49-14 through 49-16.  The suit must be filed prior to the child’s 18th birthday!

 

Actions against the father that may be done after his death:

  1. Civil paternity suit against the father (his Estate). The Court must find that he is the father of the child.  However, there are some severe limitations that make this almost impossible:

 

  • The action must be filed prior to the child’s 18th birthday!
  • It must be filed within one year of the father’s death if no estate has been opened within one year of his death.
  • If an estate is opened within one year of the father’s death, then the paternity action must be filed before the deadline for presentation of claims against the estate.

 

See North Carolina General Statute 49-14.

 

This article is provided as general legal information and is not offered as legal advice.  The law is complex and may change at any time.  Please consult with an attorney if you are dealing with any of the issues raised by this article.

About the authors.  Tom Sparks and Lee Laskody are attorneys with Walker Lambe, PLLC in Durham, North Carolina.  Their practice is focused on fiduciary litigation.

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