The California probate code has long privileged the rights of surviving children. However, in the not-so-distant past, lawmakers distinguished between legitimate children and those born out of wedlock to unmarried partners.

In recent years, however, this distinction has largely disappeared. For most practical purposes, probate courts treat a deceased person’s biological children as co-equal, irrespective of the circumstances of their birth. This can, under very limited circumstances, create problems for Californians who did not know they were parents or who never played an active role in their child’s upbringing.

While Golden State law still entitles parents to make informed decisions about their own estates, ensuring an illegitimate child’s right to an inheritance often requires a well-crafted estate plan and careful attention to detailEstate planning for illegitimate children | California Estate Planning Lawyer

Establishing Paternity During Probate

For much of the 20th century, illegitimate children were not accorded any significant inheritance rights. Unless a parent elected to include their illegitimate children in a will or revocable living trust, the child would likely be excluded from any share in the estate.

Over the course of the past several decades, California legislators have continuously revised, reworked, and amended the Golden State’s probate code. Today, the law states that any “natural child” of a deceased person has a right to inheritance, irrespective of their parents’ marital status or lack thereof.

However, these rights are typically contingent on the existence of a legal parent-child relationship.

Conditions for a Legal Parent-Child Relationship

  • A court has, at any point during the father’s lifetime, issued an order establishing paternity
  • The court finds that there is clear and convincing evidence that the parent “held out the child as [his] own”
  • The court finds that there is clear and convincing evidence of paternity, but the circumstance rendered it “impossible” for the father to acknowledge the child as his own

Establishing the existence of a parent-child relationship, or paternity, can be difficult. However, if paternity is established, the child could be entitled to a significant share of the deceased parent’s estate.

The Risks of an Intestate Succession

A parent has the right to make decisions about their own estate only if they exercise their rights and create an estate plan. Conversely, if a person dies without an estate plan—a will, a revocable living trust, or another such arrangement—they are said to have died intestate. In California, intestate successions are executed in accordance with strict legal procedure.

Intestate Successions Privilege Close Living Relatives

  • Surviving spouses
  • Biological or legally adopted children
  • Surviving parents, siblings, and grandchildren

Under most circumstances, intestate successions do not accommodate the decedent’s known preferences or family characteristics. In intestate probate, the court will award an illegitimate child an inheritance if a parental relationship can be established, and they will deny an illegitimate child an inheritance if a parental relationship cannot be established.

Your Legal Right to Exclude an Illegitimate Child From Your Estate Plan

California presumes that every adult of sound mind has the legal right to make decisions relating to their estate. Under most circumstances, a parent may elect to provide for a child—conceived while the parents are married or born to an unmarried partner—through any conventional estate planning strategy. A parent could provide for a child through:

However, California law does not dictate that a parent leave an inheritance. If a parent wishes to exclude an illegitimate child from their estate plan, they may include specific language stating that the heir has been disinherited, and they should provide a reason—simple or detailed—for doing so.

In the absence of an estate plan, however, illegitimate children could be afforded a greater or lesser share of the estate than their parent had intended.

Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.