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The Impossible Heir

In contemporary law the legal determination of paternity generally rests on the results of blood and genetic testing. However, there are times when it can be proved that it was impossible for a husband to be the father of his wife's child because the husband was absent during the period when conception occurred.

In an unusual reversal of modern law on paternity, the Alabama Supreme Court, in Tierce v. Ellis, 624 So. 2d 553 (1993), found that Dennis Tierce was the legitimate son of William Tierce, even though William was serving overseas in the armed forces during WORLD WAR II when Dennis was conceived.

William Tierce returned from the war to Alabama in December 1945 to discover that his wife Irene was six months pregnant. He immediately filed for DIVORCE on the ground of ADULTERY. The divorce was granted in February 1946. On April 4, 1946, Dennis Tierce was born. William Tierce was erroneously listed as the father on the birth certificate, but Tierce never knew of this mistake. He remarried and had five children, including his daughter, Sheila Ellis.

William Tierce died in 1972. When the executors of his estate filed a list of heirs in 1989, they listed Dennis as William's son. Sheila Ellis filed suit, challenging the paternity of Dennis and his status as an heir. The trial court ruled that it was impossible for Dennis to be the biological son of William.

The Alabama Supreme Court reversed, basing its decision on two grounds. First, under the Alabama Uniform Parentage Act (Ala. Code §§ 26-17-1 et seq. [1992 and Supp. 1994]), a husband is presumed to be the father of a child born within three hundred days of a divorce. Dennis was born sixty days after his parents' divorce. Second, the court invoked the COMMON LAW rule of repose, which requires a prompt disposition of a legal dispute. The court concluded that because William Tierce did not seek a paternity judgment during his divorce proceedings in 1946, his daughter could not now attempt to rebut the marital paternity presumption. Therefore, Dennis Tierce, the impossible heir, could claim a share of the estate of a person he never knew and to whom he was not related.

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