Recent press attention relating to Dave Grohl, of Foo Fighters and Nirvana fame, fathering of an illegitimate child despite being married for two decades, as well as the recently released Menendez brothers Netflix documentary, has led some people to consider the rules around inheritance.
As far as the Menendez twins are concerned, it is established law that someone cannot benefit from the estate of someone they have murdered. In England and Wales the Forfeiture Act 1982 is the statute that confirms this.
But, what can an illegitimate child claim against his or her parent’s estate, should he or she die without recognising the child? Find out, below.
What Are Illegitimate Children?
An ‘illegitimate child’ is used to describe any person born outside of wedlock. This could be because they were born as a result of an affair or simply because their parents decided to live together and have children but never marry.
It is important to know that, if the parents go on to marry after the birth, the child is not considered illegitimate anymore. Also, a divorce or annulment of a marriage does not illegitimise the children.
Can an Illegitimate Child Claim Inheritance?
If a child inherits from a parent, it is either under the terms of a will or under an intestacy.
If There Isn’t a Will
An intestacy is a process when someone dies without leaving a will (i.e. intestate). The rules of intestacy provide that the deceased’s spouse receives everything in the estate up to the value of £322,000.00. The balance is then divided half to the spouse and half to the children of the deceased to be divided equally between them, be they legitimate or illegitimate.
If There is a Will
If the child inherits under a will, that will would usually have named those children who will be inheriting from the deceased. This is not always the case, however.
Children are often not named when they have been left money. For example, when their parent was supposed to inherit from a grandparent but predeceased the maker of a will. In these situations, it is quite common to find a will leaving a portion of the estate to X provided X outlives the maker of the will, or to X’s children equally should X fail to do so.
Children would include illegitimate children, unless the will says otherwise.
Read more: Do I Need to Make a Will? Why Bother? How to Stop Probate
Can an Illegitimate Child Contest a Will?
This can create unnecessary problems, particularly if people claim to be the result of an affair. Even if their claim is disproved it takes time, effort, and heartache to investigate whether the claim has merits.
Ensuring you have a will and regularly updating that will can help prevent such an occurrence from happening.
Even if a will is made, a child can still challenge it. The Inheritance (Provision for Family and Dependents) Act 1975 allows all children including illegitimate children, adopted children, and stepchildren to claim against the estate of a parent.
In such a situation, if that child can show that the will or intestacy rules do not make reasonable financial provision for them, they can issue court proceedings seeking an award that provides for their reasonable maintenance. How much they receive would depend upon the circumstances of the case.
If a child is under 18 the chances of their making a successful claim are far greater, or if the child has medical needs that will require expensive treatment and limit their earning capacity throughout their lifetime. The court would also have to consider the circumstances of the other beneficiaries of the estate.
Illegitimate children can potentially have considerable claims against their parent’s estate. This is why you should make a comprehensive will and keep reviewing it. To add further protection, an accompanying letter of wishes can help explain why you have divided your estate as you have.
How Can Howells Help?
If you would like to learn more about illegitimate child rights as a parent or child, please get in touch with our friendly and experienced team of will and probate solicitors. We’ll listen to your particular circumstances and provide you with the options available.
