Inheritance From Children Born Out of Wedlock

1. Law
2. Georgia Code
3. Wills, Trusts, and Administration of Estates
4. Descent and Distribution
5. General Provisions
6. Inheritance From Children Born Out of Wedlock

1. The mother of a child born out of wedlock, the other children of the mother, and other maternal kin may inherit from and through the child born out of wedlock in the same manner as though the child were legitimate.
2. The father of a child born out of wedlock, the other children of the father, and other paternal kin may inherit from and through the child born out of wedlock in the same manner as if the child were legitimate if:
   1. A court of competent jurisdiction has entered an order declaring the child to be legitimate under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
   2. A court of competent jurisdiction has otherwise entered a court order establishing paternity;
   3. The father has, during the lifetime of the child, executed a sworn statement signed by the father attesting to the parent-child relationship; provided, however, that when the court determines by clear and convincing evidence that the father caused his child to be conceived as a result of having nonconsensual sexual intercourse with the mother of his child or when the mother is less than ten years of age, such sworn statement shall be insufficient for purposes of this subsection;
   4. The father has, during the lifetime of the child, signed the birth certificate of the child; or
   5. The presumption of paternity described in division (2)(B)(ii) of Code Section 53-2-3 has been established and has not been rebutted by clear and convincing evidence.

(Code 1981, §53-2-4, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2002, p. 1316, § 1; Ga. L. 2016, p. 219, § 5/SB 331.)

The 2016 amendment, effective July 1, 2016, added the proviso at the end of paragraph (b)(3).

Law reviews.

- For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 127 (2016). For note, "Rainey v. Chever: Expanding a Natural Father's Right to Inherit from His Illegitimate Child," see 51 Mercer L. Rev. 761 (2000). For note, "Deadbeat Dads: Undeserving of the Right to Inherit from Their Illegitimate Children and Undeserving of Equal Protection," see 34 Ga. L. Rev. 1773 (2000). For comment on equitable adoption, equitable legitimation, and inheritance in extralegal family arrangements, see 48 Emory L.J. 943 (1999).

COMMENT

This Code section carries over former OCGA Sec. 53-4-5.

JUDICIAL DECISIONS

Gender-based classification unconstitutional.

- Paragraph (b)(2) of O.C.G.A. § 53-2-4 creates a gender-based classification in violation of the equal protection clauses of both the United States and Georgia constitutions; it provides that a father of a child born out of wedlock cannot inherit from his child if he failed or refused to openly treat the child as his own, but that a mother who acts in the same manner can inherit from the child, and there is no legitimate state interest achieved by not subjecting mothers of illegitimate children to the same standards of conduct. Rainey v. Chever, 270 Ga. 519, 510 S.E.2d 823 (1999), cert. denied, 527 U.S. 1044, 119 S. Ct. 2411, 144 L. Ed. 2d 808 (1999).

Compliance with section during child's lifetime required.

- Paragraph (b)(1) of O.C.G.A. § 53-2-4 requires that the father judicially establish paternity prior to the death of the child. In re Estate of Garrett, 244 Ga. App. 65, 534 S.E.2d 843 (2000).

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