In a previous post, we discussed how illegitimacy affects the share of a child in probate. However, in some instances it’s the death of a child that raises a different issue . . . who benefits from the estate of a child? Who is entitled to serve as Personal Representative? Who can bring legal action on behalf of the child’s estate?
Determining the heirs of a young child can be a complex issue in a society of single parent homes, children being raised in foster care and blended families. First, remember that parents of a child will only inherit from the child if the child was not old enough to have a spouse or children of their own. For further information on the basics of when the parents are heirs, see our series on “Am I an Heir?” Part 1 and Part 2. In this post, we’re generally referring to the estate of a young child who has neither spouse nor children and therefore the parents are presumed to be the heirs. Many people may wonder how a young child can even have an estate (especially if they weren’t old enough to own assets) but this usually occurs when a child dies as a result of an accident and the assets in question stem from a lawsuit or insurance that pays to the estate.
South Carolina Code § 62-2-109 governs when a parent-child relationship exists for inheritance purposes. A child born out of wedlock is always the child of the mother. Absent a termination of the mother’s parental rights, the surviving mother of a deceased child is presumed to be an heir of the estate. Fathers; however, can prove more difficult.
The common law in South Carolina for many years provided that the father had no obligation to provide support of an illegitimate child. See McGlohon v. Harlan, 254 S.C. 207, 211, 174 S.E.2d 753, 755 (1970). A child is also the child of the father if: (1) the natural parents participated in a marriage ceremony, even if the attempted marriage is void; or (ii) paternity is established by adjudication. However, S.C. Code Ann. § 62-2-109(2)(ii) contains a wrinkle to paternity by adjudication. In order for the putative father to inherit from or through the child, he must have openly treated the child as his and not refused to support the child. Further, if either or both of the parents’ parental rights have been terminated, they are not eligible to inherit from or through the child.
Often in the case of children, adjudication of paternity occurs in connection with child support or child custody proceedings in family court. A birth certificate containing the signatures of the mother and putative father creates a rebuttable presumption of paternity. S.C. Code Ann. § 63-17-60(A)(6).
However, where the adjudication of paternity is occurring after the death of the child, a finding of paternity will require that the father did not refuse to support the child (this would include the payment of child support), as well as acknowledgement of paternity by the father during the child’s lifetime.
As a note for our legal readers, the burden of proof for these matters, whether the decedent is the putative father or the illegitimate child, is clear and convincing evidence. This can be a difficult standard to meet in the absence of DNA evidence. Frank discussion with clients is important before appearing at your hearing.
In conclusion, if you’re dealing with the death of a child (as a parent or legal counsel), it’s wise to understand the complex issues that can arise if there is a question of paternity, a termination of parental rights, an adoption or a failure to support the child. It’s wise to get a probate attorney involved early that can guide you through these issues.
I’ll address the question of WHY you have to go through probate when someone passes away in a future post. For today, I would just like to introduce myself and explain why I’ve chosen to blog about an otherwise uninteresting and often annoying area of the law.
My name is Tiffany Provence, an attorney living and practicing in the counties surrounding Charleston, SC. And, while I would love to blog about fashion, technology or exotic travel, I have little experience or knowledge in anything that exciting. However, after more than 10 years as a Probate Judge for Dorchester County, S.C., I have learned that there is a severe shortage of information on this topic for both the public and attorneys who need a primer on this area of the law. Our firm handles probate litigation, estate administration, estate planning, wrongful death cases and more. Essentially, if it involves death, we can help you through it.
So, why would you need to know anything about South Carolina probate law and the Probate Court? Perhaps a family member has recently passed away – this is your court. Are you caring for a loved one and needing more information about making decisions on their behalf? Again, this is your court.
Wanting to get married in South Carolina? Yep, they do that too! Want to get divorced? Well, that’s another court entirely (but see our website for information on divorce in South Carolina).
In this blog, I hope to provide you with basic information on the myriad of issues that are raised in this area of the law and ensure you know when you need to seek legal assistance. Thanks for reading.
Brian Yeager says:
February 12, 2017 at 1:18 PM
Is a personal representative (or even probate) needed if there are no assets? My mom recently passed and had only a house (left to me in the will and I am already on the deed as JTWROS). She has a trust holding stock. No probate? Summary?
Tiffany Provence says:
February 12, 2017 at 6:06 PM
The quick response is no; however, we generally find that most people have assets that have been overlooked such as vehicles, bank accounts or retirement accounts that require attention (resulting in either a personal representative or the easier small estate). It’s also a good idea to pay the small filing fee and file the will for the record in the Probate Court.