THE PARENT AND CHILD RELATIONSHIP FOR PURPOSES OF INHERITANCE

The heirs of a decedent must be established when a person dies leaving property that must pass to others. Usually this is easily done. However, in some instances there is uncertainty of the parent and child legal relationship, especially that of father and child. This article reviews some of the legal concepts for determining and establishing this relationship.

The basic rule is that for purposes of intestate succession from or through a decedent, an individual is a child of his or her natural parents, regardless of the marital status of those parents. This status can be changed before death of the parent, for example by adoption, and this will be explained later. MCL 700.2114

The parent child relationship may be established by several methods under EPIC. The most common is where the parents are married when the child is born or conceived. In this instance, the spouses are presumed to be the natural parents of the child. That is, the child is the heir of both spouses and may inherit from both their estates.

Modern scientific advancements have led to in vitro fertilization and other technological means of assisting conception of children. EPIC provides for these situations also. For purposes of intestate succession, if a child is conceived to a married couple by the use of assisted reproductive technology, the child is considered a child of both spouses if the husband consented to the means of conception.

Special rules exist for establishing the parent of a child born out of wedlock. The same rules apply to a child born or conceived during a marriage but not actually a child of the marriage. A man will be considered the natural father of such child under one of the following four rules.

The first and most common method is by the mother and father signing an acknowledgment of parentage. The content of this form has been determined by statute. After signing, it is filed with the state registrar in Lansing. Both parties can sign the form at any time after the child’s birth. A minor parent can sign the form. The form is available free from hospitals, prosecutor offices, and family independence agency offices.

The second means to establish a father’s parentage in these circumstances involves a correction of the child’s birth certificate. The mother and the man must join in a written request for correction of the child’s birth certificate. Upon issuance of a substituted birth certificate, the child is considered a child of the man for purposes of intestate succession.

Another procedure for establishing the father entails presenting evidence of the parent-child relationship in court. Here, evidence must show that the man and child had a mutually acknowledged relationship of parent and child that began before the child was age 18 and continued until ended by death of either the father or the child.

The last method is a determination under the paternity act. This requires legal proceedings in circuit court. A formal complaint is filed then served on the alleged father. The defending man can have a trial or can admit that he is the father. The court enters an order of filiation that establishes paternity.

A person may also be the child of a mother or father, or both, by adoption. A person is adopted when a court enters an order or decree of adoption that is not later vacated or reversed.

The general rule under EPIC and under the Adoption Code (MCL 710.60) is that an adopted person is the child of his or her adoptive parent or parents and not of his or her natural parents. However, this is not an absolute rule under the provisions of EPIC [MCL 700.2114(2)].

A significant exception to this rule involves stepparent adoptions. EPIC makes a change to Michigan adoption law. A child adopted by a stepparent continues to be an heir of the natural parent whose parental rights were terminated in order to permit the adoption.

In this situation, for example, the natural father consents to the adoption of one of his children by the child’s stepfather and his parental rights are terminated thereafter by court order. After the adoption by the stepfather, the adopted child remains an heir of the natural father and becomes an heir of the adopting father.

In this situation, the child continues to be an heir of the mother as her parental rights are not terminated or otherwise affected by the stepparent adoption. The mother must consent to the adoption and she joins her husband (the stepfather) in petitioning for the adoption.

Even though the adopted child in a stepparent adoption remains an heir of the natural parent, once the parental rights of the natural parent are terminated, the natural father is not an heir of the adopted child. The permanent termination of parental rights ends kinship by that parent from or through that child for purposes of intestate succession. This applies to all parents whose parental rights have been terminated by court order or by a release of parental rights.

A natural parent may lose a right to inherit from or through a child because of his or her actions. If a natural parent fails to openly treat a child as his or her child and refuses to support the child, that parent is barred from inheriting from or through the child.

More information on this topic can be found at the Calhoun County Courts Probate Notes site.

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