Whenever I am asked what I do for a living, my response -- an estates lawyer -- is not initially met with great enthusiasm. However, once I tell one or two stories about what I see on a daily basis, it becomes clear that estates law can be kind of interesting...
Take Arnold Schwarzenegger's love child, for example...
Arnie is just the latest person to have a secret family disclosed. In Schwarzenegger's case,
the truth came out while he was still alive (even though now his wife probably wants to kill him).
There are many cases, however, where the truth is only revealed after the parent has died.
Let's take the case of a child who was born, but was never part of the deceased's family. In
some cases the deceased might not have even known about the child (this only applies to
males as I have never met a woman who had a child without knowing it). Does that child have a
claim to the father's estate?
In most jurisdictions, the law does not differentiate between children who are "born out-of-wedlock" and children born within marriage. So, if a parent dies without a will, all of his children inherit equally whether he knew about them or not.
If the parent makes a will leaving everything to his children equally and says nothing more, all
children, whether known or unknown, would be included.
Some will makers want to preclude an unknown child from sharing in the estate. In most areas,
this can be done by refining the definition of 'child' to either include only specific children, or
more generally, exclude children 'born out-of-wedlock.' It goes without saying that unknown
children are almost always born to parents who are not married (at least to one another!).
However, broad language excluding all children born out-of-wedlock could be a problem. Using
that language would exclude children born in to parents who are common-law but not legally
married. These children, while technically born outside of marriage, would most often be
expected to be included in any inheritance.
Therefore, nowadays, the language is often restricted to exclude only children born out-of-wedlock who were not treated by the parent as their own child.
While you may know, or think you know, your own children, what about more distant relatives?
If your will leaves money to nieces or nephews or grandchildren, you could run into the same
problems.
Who says estate law is boring?
Next time -- what happens when that unknown child shows up to get a share of the estate?
Until then,
Jordy