Illegitimacy - Modern Law

The harsher aspects of the common law dealing with an illegitimate child have been eliminated, primarily through the application of the Equal Protection Clause of the FOURTEENTH AMENDMENT to the U.S. Constitution. In Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 436 (1968), the Supreme Court ruled that a state statute (La. Civ. Code Ann. Art. 2315) that barred illegitimate children from recovering damages for the WRONGFUL DEATH of their mother, but allowed legitimate children to recover in similar circumstances, was invalid because it denied illegitimate children EQUAL PROTECTION of the law.

The Supreme Court also enhanced the right of an illegitimate child to inherit property. Whereas most states had given legitimate and illegitimate children the same right to inherit property from the mother and her family, a number of states did not allow an illegitimate child to inherit property from the father in the absence of a specific provision in the father's will. In Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), the Supreme Court ruled such provisions in an Illinois statute invalid.

A majority of states now subscribe to the theory that a child born of any union that has the characteristics of a formal marriage relationship is entitled to legitimate status. This theory includes children born of marriages that fail owing to legal technicalities as well as children of void or VOIDABLE marriages.

Some states still recognize the validity of COMMON-LAW MARRIAGE, which takes place when a man and woman cohabit for an extensive period, and hold themselves out to the public as being HUSBAND AND WIFE even though they were never formally married. In such states children born of such arrangements are considered legitimate. Common-law marriages were a convenient mechanism in the nineteenth century for establishing property rights and legitimating children. Frontier society accepted the economic necessity for permitting such marriages because it was difficult for people on the frontier to obtain a formal marriage license; without common-law marriages, many children would have been declared illegitimate.