Descent and Distribution

Subject to the rights of the surviving spouse, children have superior inheritance rights compared to those of other blood relatives. In many jurisdictions, the same principle applies to adopted children of the intestate. Once the debts of the estate have been paid and the surviving spouse has taken his or her legal share, the remainder of the estate is apportioned in equal distributive shares, the portions specified by the law of descent and distribution, among the number of children of the decedent. The rights of the decedent's child or children are greater than not only those of the deceased's brothers and sisters, nephews and nieces, and other collateral kindred but also of the deceased's parents.

Posthumous Children A posthumous child is one born after the death of its father or mother (as, for example, by Caesarean section). Both at common law and under various state statutes, a posthumous child takes as an heir and a distributee as long as it is born alive after a period of fetal existence that indicates that it was conceived before the death of the intestate father, usually a period of nine months. Some statutes require that a child be born within ten months after the death of the intestate in order to be regarded as a posthumous child. The technique of ARTIFICIAL INSEMINATION, through which a woman can be impregnated with frozen sperm months or even years after the death of the father, poses problems for courts interpreting posthumous child statutes.

Children of Successive Marriages On the death of an intestate who had children by different marriages, all of his or her children take equal shares of the estate once the estate debts have been paid off and the surviving spouse has taken the legal portion. This method of distribution applies unless barred by statute, such as in cases where the property of an intestate was received from a deceased spouse of a former marriage. In that instance, only children of that particular marriage would inherit that property to the exclusion of children of other marriages. In a few states, a slightly different distribution is made of COMMUNITY PROPERTY of the first marriage—one half of that property belonging to the deceased spouse going to the children of that marriage in equal shares, and those children together with the children of the second marriage dividing equally the other half, subject to any rights of the surviving spouse.

Issues of Children who Predecease Intestate The share that a child who dies before the intestate would have inherited if he or she had survived the intestate parent is inherited by his or her children or descendants by the right of representation in per stirpes shares. Grandchildren have better inheritance rights than brothers and sisters of the intestate and their children. However, they do not inherit unless their parent, the child of the intestate, is dead.

Illegitimate Children At common law, an illegitimate child was a filius nullius (Latin for "child of no one") and had no right to inherit. Only legitimate children and issue could inherit an estate upon the death of an intestate parent. This is no longer the case as a result of statutes that vary from state to state. As a general rule, an illegitimate child is treated as the child of the mother and can inherit from her and her relatives and they from the child. In some jurisdictions, the illegitimate child is usually not regarded as a child of the father unless legitimated by the subsequent marriage of the parents or acknowledged by the father as his child, such as in affiliation proceedings. A legitimated child has the same inheritance rights as any other child of the parent. Many statutes permit a child to inherit from his or her father if the PATERNITY is judicially established before the father's death. In the case of Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), the SUPREME COURT OF THE UNITED STATES decided that it is unconstitutional for states to deprive an illegitimate child of the right to inherit from his or her father when he dies without leaving a will, especially in cases where paternity is already established in state court proceedings prior to the father's death.