Non-Marital Children

Non-Marital Children -- History Common Law treatment Child had no legal parents from whom to inherit. Digest topic “evolution” Texas historically: From mother = yes From father = no

Non-Marital Children – U.S. What percent of U.S. children are born out of wedlock?

Non-Marital Children – U.S. What jurisdiction has the highest percentage of children are born out of wedlock (59%)? What jurisdiction has the lowest percentage of children are born out of wedlock (20%)?

Non-Marital Children – World What country has the highest percentage of out of wedlock births (66%)? What country has the lowest percentage of out of wedlock births (2%)?

Non-Marital Children – SCOTUS Cases Trimble v. Gordon (1977) Equal treatment for intestacy. Discrimination against non-marital children violates Equal Protection Clause of 14th Amendment.

Non-Marital Children – SCOTUS Cases Lalli v. Lalli (1978) Authorized states to apply a more demanding standard for non-marital children who seek to inherit from father’s estate. 5-4 decision. Justifications: Orderly administration of estates Finality of estate distribution Avoid spurious claims (no DNA testing at that time) Protect desires of decedent Alleged father incapable of presenting evidence to the contrary (“He’s dead, Jim”).

Maternal Inheritance – EC § 201.051 Always child of biological mother; marital status irrelevant.

Paternal Inheritance -- EC § 201.052 Child must show paternity: 1. Family Code presumptions such as: Born during marriage. Born within 300 days of end of marriage. Within first two years of child’s life, lived with child and held out child as his.

Paternal Inheritance -- EC § 201.052 Child must show paternity: 1. Family Code presumptions. 2. Court decree of paternity.

Paternal Inheritance -- EC § 201.052 Child must show paternity: 1. Family Code presumptions. 2. Court decree of paternity. 3. Father adopts.

Paternal Inheritance -- EC § 201.052 Child must show paternity: 1. Family Code presumptions. 2. Court decree of paternity. 3. Father adopts. 4. Father executes paternity statement.

Paternal Inheritance -- EC § 201.052 Child must show paternity: 1. Family Code presumptions. 2. Court decree of paternity. 3. Father adopts. 4. Father executes paternity statement. 5. Post death determination of paternity by clear and convincing evidence.

Paternal Inheritance -- EC § 201.052 Child must show paternity: 1. Family Code presumptions. 2. Court decree of paternity. 3. Father adopts. 4. Father executes paternity statement. 5. Post death determination of paternity by clear and convincing evidence. 6. ART statutes.

Frost Nat’l Bank v. Fernandez 2010 Texas Supreme Court case – p.34, note 4 Discovery rule not apply to heirship claims by non-marital children (consistent with Little v. Smith which dealt with adoption).