Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, November 26, 2008

From whom should a child inherit -- biological parents or presumptive parent?

PaternityMegan Pendleton (Submissions Editor, Cardozo Law Review, Benjamin N. Cardozo School of Law) recently authored an article entitled Intestate Inheritance Claims: Determining a Child’s Right to Inherit When Biological and Presumptive Paternity Overlap, 29 Cardozo L. Rev. 2823 (2008).

Here is an excerpt from the Introduction:

This Note argues that neither biology nor a presumption of paternity should be the dispositive factor in heirship determinations; rather the threshold inquiry should be the nature of the parent-child relationship. Thus, legislatures should assign courts the discretion to evaluate the existence of a familial parent-child relationship when paternity is at stake in intestate inheritance claims. Furthermore, the Uniform Parentage Act (UPA) provides a comprehensive framework for such a discretionary approach that could be modeled in probate cases when a marital presumption is challenged. Although the UPA was principally drafted to resolve paternity issues for purposes of child support and custody determinations, and does not directly address the challenges of inheritance law, a comprehensive reading of the statute provides useful guidelines for resolving paternity challenges arising during inheritance claims. Thus, this Note suggests that the UPA's discretionary method is superior to a bright-line approach that treats the fact of either biological or presumptive paternity as dispositive.


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