Wills, Trusts & Estates Prof Blog

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

Sunday, January 31, 2010

A Uniform Procedure for Establishing Paternity By Exhumation

PaternityCourtney Wheeler (2010 J.D. candidate, Texas Tech University) has published her comment entitled Who's Your Daddy? Exhumation to Establish Paternity Must be Reigned in by a Uniform Procedure, 2 Estate Plan. & Community Prop. L.J. 249 (2009). 

The phrase "Win one for the Gipper" might take on an entirely new meaning in the legal community.  George Gipp, a famous football player at Notre Dame "was a prolific runner, passer and kicker who was Notre Dame's first All-America selection"; however, Gipp died his senior year from pneumonia and a strep infection, which resulted in the coined expression, "Win one for the Gipper."  The Gipp family allowed an ESPN film crew to record the exhumation for the purposes of DNA testing for an upcoming story.  Though this enraged some members of the Gipp family, the family members bringing the claim met the legal requirements for obtaining the DNA test.  This story brings media attention to this fairly new legal concept: exhuming bodies to perform DNA testing to establish paternity.  The question is whether the legal community is prepared to deal with the increased interest and litigation this media attention could bring.  

In addition to the media attention created by the Gipper story, the number of children born out of wedlock has increased dramatically in the last century.  Recently, Paula Monopoli, in her article regarding changes in inheritance law, pointed out that in 2005 alone 1.5 million children were born out of wedlock.  Monopoli further notes that "[c]hildren born out of wedlock . . . were originally barred from inheriting from or though either parent.  American jurisprudence evolved over time to give nonmarital children greater rights, in part due to constitutional concerns."  Generally, courts are recognizing that the constitutional concerns raise equal protection issues, which highlight the ever increasing legal legitimacy of nonmarigal children establishing their inheritance through DNA testing.  being that district courts, probate courts, and state legislatures are accommodating nonmarital children, many state statutes now regulate the use of DNA testing as a scientific tool to prove paternity.  And, beyond just the regulation of DNA testing, previous scholarly article argue DNA testing is a fair way to prove paternity by clear and convincing evidence--even in posthumous situations.


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