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Protecting Your Modern Family from Some of North Carolina’s Not So Modern Inheritance Laws

Author: Amy Shue Isaacs, Probate & Estate Administration Attorney, The McIntosh Law Firm, P.C.

Today’s typical family may look quite different from the traditional “nuclear family” of our parents’ and grandparents’ generations. In addition to blended families, same sex marriages, and traditional nuclear families, some couples choose not to marry at all. This model works well for many families, who live happy and fulfilling lives, raising children and functioning in all aspects just like any “traditional” family. However, should a death occur, the results can be devastating. Consider the following real-life scenario: Jack and Sarah lived together for many years. Although they never married, they functioned like any married couple. They had one child, Elizabeth. When Jack died unexpectedly, Sarah assumed she and/or Elizabeth would inherit Jack’s estate. Sadly, Jack did not have a will and never designated beneficiaries for any of his retirement accounts or life insurance policies. Jack’s parents, who never liked Sarah and never approved of Jack’s having fathered a child out of wedlock, “lawyered up.” As a result, Sarah did too. Sarah assumed she would receive some part, or all, of Jack’s estate but was quickly advised that because North Carolina does not recognize common law marriages, or even domestic partnerships, she would not be recognized as an heir of the estate. But the real sucker punch came when Sarah learned that because Elizabeth was born out of wedlock, that she would not automatically be recognized as an heir of Jack’s estate. This is a harsh outcome for sure, but under current North Carolina law, this is the reality. Not only does North Carolina not recognize common law marriage, but children born out of wedlock are not automatically recognized as heirs of their fathers. In order to be recognized as an heir of the father’s estate, there must have either been some formal adjudication during the father’s lifetime (such as a paternity or child support case, or action for legitimation filed by the father), or a formal written acknowledgment filed by the father with the court. It is important to note that having the father’s name listed on the birth certificate as the father is not sufficient to satisfy the written acknowledgement requirement. After the father’s death, paternity may be established so that the child can inherit, but there are very strict time limitations imposed, so it is critical to seek advice from an attorney experienced in this area. Of course, if the father of the child executes a valid last will and testament and/or designates the child as beneficiary for life insurance and other non-probate assets, the child will inherit. As always, a bit of preplanning can make all the difference for those we love.