Legal Question in Family Law in North Carolina

It depends. Did the mother or father of the illegitimate child die? Did the parent have a will? If not, did the parent acknowledge the child before death? Was the child ever legitimated? In what state did the parent live at the time of his/her death? When did the parent die?

Some states treat an illegitimate child the same as a legitimate child for inheritance purposes. Other states provide that an illegitimate child can inherit from its mother, but its not father unless the child is legitimated before death or paternity is established. The NC statute is below:

� 29-19. Succession by, through and from children born out of wedlock.

(a) For purposes of intestate succession, a child born out of wedlock shall be treated as if that child were the legitimate child of the child's mother, so that the child and the child's lineal descendants are entitled to take by, through and from the child's mother and the child's other maternal kindred, both descendants and collaterals, and they are entitled to take from the child.

(b) For purposes of intestate succession, a child born out of wedlock shall be entitled to take by, through and from:

(1) Any person who has been finally adjudged to be the father of the child pursuant to the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through 49-16;

(2) Any person who has acknowledged himself during his own lifetime and the child's lifetime to be the father of the child in a written instrument executed or acknowledged before a certifying officer named in G.S. 52-10(b) and filed during his own lifetime and the child's lifetime in the office of the clerk of superior court of the county where either he or the child resides.

(3) A person who died prior to or within one year after the birth of the child and who can be established to have been the father of the child by DNA testing.

Notwithstanding the above provisions, no person shall be entitled to take hereunder unless the person has given written notice of the basis of the person's claim to the personal representative of the putative father within six months after the date of the first publication or posting of the general notice to creditors.

(c) Any person described under subdivision (b)(1), (2), or (3) of this section and the person's lineal and collateral kin shall be entitled to inherit by, through and from the child.

(d) Any person who acknowledges that he is the father of a child born out of wedlock in his duly probated last will shall be deemed to have intended that the child be treated as expressly provided for in the will or, in the absence of any express provision, the same as a legitimate child.

There are time limits for asserting a claim if the father of the illegitimate child died. If the child is still within the time period and it is the father who has died, the child or its surviving parent/guardian needs to assert paternity if this is in NC. If elsewhere, the child/guardian needs to consult a probate attorney who practices in the county/state where the estate is or would be pending.