Beyond The Will

Picture this: your family has a longstanding rumor that you are the child of an affair. Not only that, but it is an open secret who your family believes your other parent is. One day, you hear that the possible other parent has died. Your curiosity gets the better of you and you would like to find out once and for all if this person was your parent and, if so, whether they left you anything upon their death.

Now, for the ease of the author, this post uses only the terms mother and father. We recognize that families come in all shapes and stripes and that you may have two mothers, two fathers, two parents, or some other parental arrangement. Without further ado, here are some possible scenarios and ideas to keep in mind in each.

Scenario One:
You are the child of an affair your father had while married to someone other than your mother. You grew up with your mother, who is unmarried and unpartnered, and have never known your biological father.

In this scenario, if you are trying to assess your rights to your father’s estate, there are several important questions.

First, you must establish the putative father’s paternity. Is your father named on your birth certificate? Has he completed a voluntary adjudication of parenthood? If not, you will need to file a court case to have your father’s paternity established. If at all possible, get a DNA test using (lawfully obtained) biological material from your father or your father’s other children, siblings, or parents. If not, consider what other sources you have available to gather evidence; there are ways to establish paternity other than through DNA in Massachusetts. Massachusetts law provides that “an individual is the child of his [or her] natural parents” and that such a relationship “may be established under applicable state law.” G. L. c. 190B, § 2-114. Under Massachusetts law, parentage may be adjudicated even if the putative parent has died. See G. L. c. 209C, § 5.

Another possible way to have your father’s paternity adjudicated is to file a notice of appearance in the probate of his estate and to claim that you are his child. This spares you from undergoing additional litigation and ensures that the other beneficiaries of your father’s estate are on notice of your claim. The parties may also stipulate paternity if your father’s other heirs are aware of your claim and believe you to be his child.

Second, did your father die with a will or intestate? If the former, you can choose to accept any gift from the will or to challenge the will. Such a challenge can be based on the fact that your father has left you out of the will if that is the case, or on any other basis for challenging a will permitted under Massachusetts law. If your father died intestate, your share depends on the other relatives your father had at the time of his death, including his spouse, parents, and other children.

Another possible consideration is whether your father had established a trust for the benefit of his children. If so, you may be entitled to a share of the trust, depending on its terms. For example, if the trust is for the benefit of his “issue,” the Supreme Judicial Court has concluded that the issue “must be construed to include all biological descendants.” Powers v. Wilkinson, 399 Mass. 650, 662 (1987).

Scenario Two:
You are the child of an affair your mother had while married to someone other than your father. You grew up with your mother and her husband, who you have always believed to be your biological father.

In many ways, this is the most complicated scenario, legally and for family dynamics. First, when two people are married, parenthood is presumed between the married couple. You are, therefore, presumptively the child of your mother’s marriage to her husband, regardless of whether her husband is your father biologically.

In this case, you should consider the potential repercussions to your family before attempting to have another person adjudicated your parent. It may ruffle a few feathers in your family to file a claim based on biological parenthood if you have had two loving parents who raised you despite one of them not being biologically related to you. It may be worth a conversation with your parents about the implications of your claim to someone else’s parenthood.

In addition, claiming a share of your biological parent’s estate may affect your ability to inherit from your non-biological father. He should ensure that if he has an estate plan, it is updated to make clear that you are still a beneficiary of his estate. If he dies intestate, your ability to claim under him will be nonexistent because he is not biologically your father. Therefore, you should be sure that your non-biological father knows of your claim to your biological father’s estate and adjusts his estate plan accordingly. Your claim to your biological father’s estate may even mean that your non-biological father chooses to leave you out of his estate plan. Say you obtain several million dollars from your biological father’s estate. Your non-biological father has four biological children and a total estate of $500,000. He might decide that it is best to divide his estate between the four biological children and leave you out, in the interests of fairness, since you already inherited more than his entire estate. Such an action would be well within his rights and would be an unintended consequence of inheriting from your biological father.

Once you have navigated the family dynamics, you may proceed as in scenario one.

Scenario Three:
You are the child of an affair your mother had while unmarried but in a long-term relationship. You grew up with your mother and her partner, who you believed to be your biological father.

In this scenario, there is no presumptive parenthood established by a marriage. Therefore, your mother is legally your parent but unless your biological father has acknowledged paternity or been adjudicated a parent, as in scenario one, you must secure paternity as the first step. Scenario one outlines your options in that regard in detail. Thereafter, your considerations are the same as those in scenario two. The only difference in this scenario is that you are not an intestate beneficiary of your mother’s partner’s estate. The considerations of inheritance from this person therefore require him to have completed an estate plan—with you named as a beneficiary—for you to benefit.

When you are a child of an affair trying to navigate inheritance, life can get complicated quickly. This blog post explores several such scenarios but for advice on your unique circumstances, you should seek the guidance of trusted attorneys.