In re Estate of Hicks
Annotate this Case
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the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Nos. 80604, 80677 cons.--Agenda 28--September 1996.
In re ESTATE OF RONADRA J. HICKS, Deceased (Mark Twain Illinois
Bank, Adm'r and Guardian of the Estates of LaDonna and LaDiea
Bender, Minors, Appellant, v. Ronald J. Hicks, Appellee).
Opinion filed December 19, 1996.
CHIEF JUSTICE BILANDIC delivered the opinion of the court:
At issue in this appeal is the constitutionality of section 2-
-2(d) of the Probate Act (755 ILCS 5/2--2(d) (West 1994)), which
provides that the estate of an illegitimate intestate who dies
without a surviving spouse or descendants shall be distributed to
his or her mother and the mother's children/descendants. The
circuit court of St. Clair County entered a judgment finding
section 2--2(d) unconstitutional because it permitted only mothers,
and not fathers, to inherit by intestate succession from their
illegitimate children, and thereby unlawfully discriminated on the
basis of gender, in violation of the equal rights provision of the
Illinois Constitution of 1970 (Ill. Const. 1970, art. I, 18). The
circuit court also determined that section 2--1 of the Probate Act
(755 ILCS 5/2--1 (West 1994)) would control the distribution of the
estates of illegitimate decedents. That section, which governs the
intestate succession of legitimate decedents, allows both mothers
and fathers (and their descendants) to inherit by intestate
succession from their legitimate children who die without a
surviving spouse or descendants.
FACTS
The decedent, Ronadra J. Hicks, was born on April 10, 1985,
and died on January 3, 1994. Shortly after Ronadra's death, her
mother, Sandra Williams Bender, filed a petition for letters of
administration and determination of heirship in the probate
division of the circuit court of St. Clair County. That court
entered an order appointing Mark Twain Bank (Bank) as the
administrator of Ronadra's estate. The circuit court also entered
an order determining heirship pursuant to section 2--2(d) of the
Probate Act, identifying as Ronadra's only heirs her mother, Sandra
Bender, and her three half-sisters, LaDonna, LaDiea and LaShawn
Bender.
The Bank filed an inventory reporting the sole asset of
Ronadra's estate to be an account with a balance of $94,148.27. The
circuit court subsequently entered a modified order of heirship,
distributing 50% of Ronadra's estate to her mother and the
remaining 50% in equal shares to her three half-sisters.
Subsequently, Ronald Hicks, Ronadra's biological father, filed
a motion to set aside the modified heirship order and the order
appointing the Bank as administrator of Ronadra's estate. Hicks'
motion alleged that he was named by Ronadra's mother in a petition
to establish parentage filed in the circuit court of St. Clair
County, and that he appeared before that court on March 3, 1988,
and admitted paternity (approximately three years after the child's
birth). The circuit court entered an order establishing paternity
and ordered Hicks to pay child support. Hicks' motion claimed that
he paid support for Ronadra up to the date of her death pursuant to
"an order of withholding previously entered." Hicks' motion sought
to set aside the heirship order and argued, inter alia, that "the
distinction between legitimacy and illegitimacy, as it pertains to
Ronald Hicks as father of the deceased, [is] unconstitutional." The
motion argued that Hicks should be included among the decedent's
heirs at law. The circuit court granted Hick's motion, finding
section 2--2(d) of the Probate Act (755 ILCS 5/2--2(d) (West 1994))
violative of article I, section 18, of the Illinois Constitution of
1970 (Ill. Const. 1970, art. I, 18). The circuit court declared
Hicks an heir of the decedent but denied further relief.
The trial court subsequently modified its order to find that,
having declared section 2--2(d) unconstitutional, section 2--1 of
the Probate Act (755 ILCS 5/2--1 (West 1994)) would control the
distribution of the estates of illegitimate decedents. Section 2--1
provides that the estate of a legitimate intestate who dies without
a surviving spouse or decedent shall be distributed to the
decedent's parents and the parents' other descendants, in equal
shares. Pursuant to this provision, the circuit court entered an
order finding that Ronadra's heirs at law included, not only her
mother and her mother's three surviving children, but also her
biological father and his two children, Rochelle Jeanette Hicks and
Ronyall J'nae Hicks. The trial court ordered that Ronadra's estate
be distributed in equal shares to each of Ronadra's seven heirs.
The trial court subsequently granted the Bank authority to
appeal its order, and held that the costs incurred in such an
appeal would be paid by the decedent's estate. The Bank's appeal
was brought directly to this court pursuant to Supreme Court Rule
302 (134 Ill. 2d R. 302). Hicks filed a cross-appeal, claiming that
the trial court erred in permitting the Bank to appeal the court's
determination of heirship at the expense of the estate.
ANALYSIS
I. Constitutionality
We first address the trial court's order declaring section 2--
2(d) of the Probate Act unconstitutional. The trial court found
section 2--2(d) unconstitutional on the ground that it created a
sex-based classification that could not withstand strict scrutiny.
Before reviewing the propriety of that finding, we briefly discuss
the standard under which the statute is reviewed.
Prior to ratification of the 1970 Illinois Constitution,
legislative enactments that classified on the basis of sex, like
most legislative classifications, were reviewed under the more
lenient, rational basis standard of judicial review. See, e.g.,
Jacobson v. Lenhart, 30 Ill. 2d 225, 227 (1964); Henson v. City of
Chicago, 415 Ill. 564 (1953). Article I, section 18, of the 1970
Constitution, however, specifically bars discrimination on the
basis of sex. Ill. Const. 1970, art. I, 18. That constitutional
provision states:
"The equal protection of the laws shall not be
denied or abridged on account of sex by the State or its
units of local government and school districts."
In People v. Ellis, 57 Ill. 2d 127 (1974), our court found that
this constitutional provision was intended to supplement and expand
the guarantees of the equal protection provision of the bill of
rights. The Ellis court determined that "a classification based on
sex is a `suspect classification' which, to be held valid, must
withstand `strict judicial scrutiny.' " Ellis, 57 Ill. 2d at 132-
33; see also Phelps v. Bing, 58 Ill. 2d 32, 35 (1974). Under the
strict scrutiny standard of review, a statute is not entitled to a
presumption of constitutionality. Rather, the statute may be upheld
only if the means employed by the legislature to achieve the stated
goal were necessary to advance a compelling state interest.
Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 73 (1990).
In addition, the statute must be narrowly tailored; that is, a
statute incorporating a suspect classification will be upheld only
if the legislature employed the least restrictive means consistent
with attainment of the legislative goal. Fumarolo v. Chicago Board
of Education, 142 Ill. 2d 54, 73 (1990).
A
With these principles in mind, we now consider the trial
court's order that section 2--2(d) illegally discriminated on the
basis of gender and resulted in a denial of equal protection of the
laws in violation of section 18 of article I of the Constitution of
1970. In addressing the propriety of this finding, we consider
first whether the statute creates a sex-based classification. As
stated, that section specifies the manner in which the estate of an
intestate decedent who was illegitimate at the time of death shall
be distributed. It provides:
"(d) If there is no surviving spouse or descendant
but the mother or a descendant of the mother of the
decedent: the entire estate to the mother and her
descendants, allowing 1/2 to the mother and 1/2 to her
descendants per stirpes." 755 ILCS 5/2--2(d) (West 1994).
The father of an illegitimate child who dies intestate is not
entitled to any part of his child's estate under the statute.
We agree with the trial court that the statute creates a sex-
based classification. The statute distinguishes between the parents
of an illegitimate child based solely upon the gender of the
parent. Because only females can occupy the status of motherhood,
only females are entitled to inherit from their illegitimate
offspring under the statutory scheme. By the same token, because
only males have the family position of fatherhood, only males are
unconditionally excluded under the statute from inheriting from
their illegitimate offspring. Thus, the statute creates a sex-based
classification and will be upheld only if it withstands strict
scrutiny.
B
We must therefore determine whether the statutory
classification is necessary to advance a compelling state interest
and whether it is narrowly tailored to achieve that interest.
Fumarolo, 142 Ill. 2d at 73. In an attempt to justify the sex-based
classification created by statute, the Bank argues that the
position of the biological father of an illegitimate child is
different from that of the biological mother and that the
differences in their situations justify the disparate treatment at
issue here.
1. Presumed Intent
The Bank first argues that the disparate treatment afforded to
the mothers and fathers of illegitimate children is justified by
the overriding purpose of section 2--2(d) and all laws governing
intestate succession, which is to give effect to the presumed
intent of deceased intestates. As the Bank notes, our intestacy
laws apply only when a deceased leaves no will, and such laws
represent a legislative effort to express the presumed wishes of a
deceased intestate. The Bank argues that section 2--2(d) accurately
reflects the presumed intent of illegitimate children who die
intestate. The Bank contends that section 2--2(d) accords mothers
of illegitimate children different inheritance rights than fathers
because the legislature recognized that illegitimate children
typically have a much closer relationship with their mothers than
with their fathers. The Bank notes that mothers not only bear the
physical and emotional ramifications of pregnancy, but also
customarily assume a disproportionate share of the responsibilities
of raising an illegitimate child. See King v. Commonwealth, 221 Va.
251, 269 S.E.2d 793 (1980). According to the Bank, fathers of
illegitimate children often fail to support their children, unless
compelled by court order to do so. In addition, the Bank asserts,
fathers frequently have no meaningful personal relationship with
their illegitimate children. It is reasonable, the Bank contends,
for the legislature to presume that illegitimate children bear no
affection for parents who fail to support and acknowledge them.
Accordingly, it claims that section 2--2(d) simply carries out the
deceased intestate's presumed wishes that his or her estate be
distributed only to his or her mother and her descendants.
The state certainly has a legitimate interest in enacting laws
that attempt to give effect to the presumed intentions of a
deceased intestate. The state may also have a legitimate interest
in enacting laws which allow only those parents who have
demonstrated an interest in their illegitimate children to inherit
by intestate succession. The United States Supreme Court has
recognized that "[i]f one parent has an established custodial
relationship with the child and the other parent has either
abandoned or never established a relationship, the Equal Protection
Clause does not prevent a State from according the two parents
different legal rights." Lehr v. Robertson, 463 U.S. 248, 267-78,
77 L. Ed. 2d 614, 630-31, 103 S. Ct. 2985, 2996-97 (1983). We
assume, for the sake of argument, that the State's interest in
enacting legislation which accomplishes these goals is compelling.
(Cf. Trimble v. Gordon, 430 U.S. 762, 775 n.16, 52 L. Ed. 2d 31, 42
n.16, 97 S. Ct. 1459, 1467 n.16 (1977) (suggesting that presumed
intent is not a valid state objective for purposes of the equal
protection clause, at least where the statute reflecting such
intent discriminates against illegitimates).
The question here is whether the discriminatory means employed
in section 2--2(d)--which discriminates against fathers of
illegitimate children--is narrowly tailored to achieve the state's
asserted goals. We conclude that it is not narrowly tailored
because the legislature did not employ the least restrictive means
for accomplishing its asserted purpose. Here, the state's interest
could be effectively achieved in a gender-neutral manner, by
allowing intestate succession by any parent who has acknowledged
and supported their illegitimate child. (See 8 U.L.A. 2--114(c)
(1991) (Uniform Probate Code) ("Inheritance from or through a child
by either natural parent or his [or her] kindred is precluded
unless the natural parent has openly treated the child as his [or
hers], and has not refused to support the child").
Instead, the challenged statute " `make[s] overbroad
generalizations based on sex which are entirely unrelated to any
differences between men and women [and] which demean the ability or
social status of the affected class.' " Michael M. v. Superior
Court, 450 U.S. 464, 469, 67 L. Ed. 2d 437, 442, 101 S. Ct. 1200,
1204 (1981), quoting Parham v. Hughes, 441 U.S. 347, 354, 60 L. Ed. 2d 269, 276, 99 S. Ct. 1742, 1747 (1979). Section 2--2(d) is based
upon the presumption that a particular parent will be involved or
uninvolved in their illegitimate child's life simply because that
parent happens to be a man or a woman. Not all mothers assume sole
responsibility for their illegitimate offspring, and not all
fathers abandon such offspring. In fact, by employing a gender-
based classification, section 2--2(d) may actually thwart the
legislature's desire to effectuate an illegitimate child's presumed
intent in some cases. By employing a gender-based criteria, section
2--2(d) allows a mother who abandons her illegitimate child at
birth to inherit from that child, while denying surviving fathers
the opportunity to inherit even where there is conclusive evidence
that they were objects of their child's affection. As stated, the
objectives of the statute could be completely and effectively
served by allowing intestate succession by any parent who has
acknowledged and supported their illegitimate child.
The Bank argues that administrative concerns support the
statute. The Bank, in effect, contends that it is more efficient
for the legislature to presume that mothers and not fathers are the
natural objects of their illegitimate child's affection than to
require a case-by-case determination. The United States Supreme
Court has held, however, that gender-based discrimination cannot be
justified on the grounds of administrative convenience. In Reed v.
Reed, 404 U.S. 71, 76, 30 L. Ed. 2d 225, 230, 92 S. Ct. 251, 254
(1971), the Court said that "[t]o give a mandatory preference to
members of either sex over members of the other, merely to
accomplish the elimination of hearings on the merits, is to make
the very kind of arbitrary legislative choice forbidden by the
Equal Protection Clause." See also Frontiero v. Richardson 411 U.S. 677, 689, 36 L. Ed. 2d 583, 593, 93 S. Ct. 1764, 1771-72 (1973)
(where the Court rejected an attempt to justify, on the grounds of
administrative convenience, a gender-based classification that
created a presumption that wives were dependent upon their
husbands, while requiring proof of dependency in the case of
husbands). By the same token, we find that the gender-based
classification found in section 2--2(d) cannot be justified on the
ground that it effectuates the intent of an illegitimate who dies
intestate, because the legislature did not employ the least
restrictive (i.e., gender-neutral) means of accomplishing that
purpose.
2. Penalizing Fathers of Illegitimates
The Bank next argues that the disparate treatment afforded to
mothers and fathers of illegitimates may be justified on the ground
that it effectuates the legislature's interest in encouraging
family relationships and penalizing irresponsible procreation. The
Bank concedes, however, that mothers and fathers bear equal moral
accountability for conceiving illegitimate children. The Bank also
concedes that mothers and fathers of an illegitimate child are
similarly situated in terms of their capacity to legitimate a
child. See Dotson v. Sears, Roebuck & Co., 157 Ill. App. 3d 1036
(1987). The Bank nevertheless argues that the statute granting
preferential inheritance rights to mothers of illegitimate children
is proper because it penalizes men who father children through
women whom they have no intention of marrying. The Bank argues that
imposing a penalty only upon fathers of illegitimate children is
appropriate, because women have a natural disincentive to avoid
unwanted pregnancies.
In Illinois, neither a mother nor a father may unilaterally
legitimize a child. An adjudication of paternity during the
fathers's lifetime does not thereby legitimize an illegitimate
child. Dotson v. Sears, Roebuck & Co., 157 Ill. App. 3d 1036
(1987). Rather, legitimization is accomplished only when an
illegitimate child's parents intermarry and the illegitimate child
is acknowledged by the father as his child. 755 ILCS 5/2--2(h)
(West 1994). Because marriage is possible only with the consent of
both parents, the means by which a child may be legitimated are
under the control of both parents. Therefore, the discriminatory
classification employed in section 2--2(d) may not be justified on
the ground that it properly penalizes fathers of illegitimate
children.
Section 2--2 is distinguishable in this respect from the
statute at issue in Parham, 441 U.S. at 355, 60 L. Ed. 2d at 277,
99 S. Ct. at 1747-48. In Parham, the Supreme Court upheld a statute
that permitted the father of an illegitimate child to sue for the
child's wrongful death only if he had legitimated the child during
the child's lifetime. In Parham, however, a state statute permitted
a father to legitimate his child simply by filing a petition in
state court identifying the child and its mother and requesting an
order of legitimation. The father therefore had the unilateral
power to legitimate his child and thereby remove himself from the
disability imposed by the wrongful death statute. In Illinois, on
the other hand, the father of an illegitimate child is powerless to
remove himself from the statutory burden imposed in section 2--
2(d), unless the mother of the child consents to legitimate their
child through marriage. We therefore reject the Bank's claim that
the discriminatory classification employed in section 2--2(d) may
be justified on the ground that it properly penalizes fathers of
illegitimate children.
3. Proof of Paternity
The Bank's proffered justifications for the gender-based
discrimination found in section 2--2(d) are far from the strict
showing required to sustain a gender-based classification under
article I, section 18, of the Illinois Constitution. We find it
appropriate to note at this juncture, however, that we do not
suggest that any gender-based classification would violate article
I, section 18, of the Illinois Constitution. Such classifications
will be upheld when they are narrowly tailored to accomplish a
compelling state purpose.
One potential justification for gender-based classifications
is the difficulties associated with proof of paternity. In this
regard, we note that the state has a legitimate interest in
ensuring that a decedent's estate is distributed only to actual
members of his family. The United States Supreme Court has
recognized that the danger of fraudulent claims against a
decedent's estate is more problematic where illegitimate children
and their parents are involved than in cases involving legitimate
children. See Trimble, 430 U.S. at 770, 52 L. Ed. 2d at 39, 97 S. Ct. at 1465; Lalli v. Lalli, 439 U.S. 259, 268-69, 58 L. Ed. 2d 503, 511-12, 99 S. Ct. 518, 525 (1978). The Supreme Court has also
recognized that the danger of fraudulent claims is more apparent in
cases involving fathers and their illegitimate children than in
cases involving mothers and illegitimate children, for the simple
reason that proof of paternity is more problematic than proof of
maternity. See Trimble, 430 U.S. at 770, 52 L. Ed. 2d at 39, 97 S. Ct. at 1465; Lalli, 439 U.S. at 268-69, 58 L. Ed. 2d at 511-12, 99 S. Ct. at 525.
The Court has noted that the identity of the mother of an
illegitimate child is rarely in doubt, since the birth of a child
is a recorded or registered event usually taking place in the
presence of others. Parham, 441 U.S. at 355, 60 L. Ed. 2d at 277,
99 S. Ct. at 1747-48; Lalli, 439 U.S. at 268, 58 L. Ed. 2d at 511,
99 S. Ct. at 525. The identity of the father, on the other hand, is
frequently a subject of dispute where an illegitimate child is
concerned.
In Trimble v. Gordon, the Court recognized " `the lurking
problems with respect to proof of paternity,' [citation], and the
need for the States to draw `arbitrary lines . . . to facilitate
the potentially difficult problems of proof,' [citation]." Trimble,
430 U.S. at 771, 52 L. Ed. 2d at 40, 97 S. Ct. at 1465. The Supreme
Court also noted that, "[t]he more serious problems of proving
paternity might justify a more demanding standard for illegitimate
children claiming under their fathers' estates than that required
either for illegitimate children claiming under their mothers'
estates or for legitimate children generally." Trimble, 430 U.S. at
770, 52 L. Ed. 2d at 39, 97 S. Ct. at 1465; see, e.g., Lalli v.
Lalli, 439 U.S. 259, 268-69, 58 L. Ed. 2d 503, 511-12, 99 S. Ct. 518, 525 (1978) (upholding statute that allowed illegitimate
children to inherit unconditionally from their mothers, but allowed
inheritance for an intestate father only where a court order
declaring paternity was entered during the father's lifetime,
finding the evidentiary requirement substantially related to the
state's interest in avoiding the difficulties associated with proof
of paternity and exposure to spurious claims); Parham v. Hughes,
441 U.S. 347, 60 L. Ed. 2d 269, 99 S. Ct. 1742 (1979) (right to
bring wrongful death action); Caban v. Mohammed, 441 U.S. 380, 393
n.15, 60 L. Ed. 2d 297, 308 n.15, 99 S. Ct. 1760, 1768 n.15 (1979)
(adoption); 755 ILCS 5/2--2(h) (West 1994).
The "lurking problems" associated with proof of paternity may
also arise in circumstances where a father is attempting to inherit
from his illegitimate child's estate. Thus, when enacting statutes
which govern the rights of parents to inherit from their
illegitimate children, such as section 2--2(d), the legislature has
a legitimate interest in adopting measures that minimize or avoid
the difficult problems associated with proof of paternity. The more
serious problems of proving paternity might justify a more
demanding standard for fathers claiming under their illegitimate
children's estates than that required for mothers claiming under
the estates of their illegitimate children.
The distinction drawn in section 2--2(d) between mothers and
fathers of illegitimate children, however, cannot be justified on
this ground. Section 2--2(d) cannot withstand strict scrutiny,
because the statute is not narrowly tailored to effectuate the
state's interests in avoiding either the difficulties associated
with proof of paternity after the illegitimate child's death or the
danger of fraudulent claims by purported fathers against the
estates of illegitimate children. Section 2--2(d) bars all fathers
from inheriting from the estates of their illegitimate children.
The statutory bar applies even in cases, such as this, where the
father's paternity has been established in a judicial proceeding
during the child's lifetime.
In this respect, section 2--2(d) is comparable to a section of
the Illinois Probate Act that the United States Supreme Court
struck down in Trimble as violative of the equal protection clause
of the federal constitution. The statute at issue in Trimble
allowed illegitimate children to inherit by intestate succession
only from their mothers, but not through their fathers. The Supreme
Court found the statute unconstitutional under the lenient rational
basis standard of review, stating that the "[d]ifficulties of
proving paternity in some situations do not justify the total
statutory disinheritance of illegitimate children whose fathers die
intestate." Trimble, 430 U.S. at 772, 52 L. Ed. 2d at 40, 97 S. Ct.
at 1466.
The Court found that the statute was not "carefully tuned to
alternative considerations" since it excluded inheritance by
illegitimates even when the decedent was determined to be the
illegitimate child's father in a state court paternity action. The
Court concluded that the statute was constitutionally flawed
because it excluded significant categories of illegitimate children
whose inheritance rights could be recognized without jeopardizing
the orderly settlement of estates. Trimble, 430 U.S. at 770, 52 L. Ed. 2d at 39, 97 S. Ct. at 1465.
Section 2--2(d) is similarly flawed. The problems associated
with proving paternity might justify a statute that imposes a more
demanding standard on fathers claiming under their illegitimate
children's estates than that required for mothers claiming under
their illegitimate children's estate. The difficulties of proving
paternity in some situations, however, do not justify the total
statutory disinheritance of all fathers of illegitimate children
who die intestate. Section 2--2(d) cannot withstand strict
scrutiny, because that statute does not adopt the least restrictive
means of accomplishing the legislative goal of eliminating the
danger of fraudulent claims by putative fathers against their
illegitimate child's estate. Accordingly, we affirm the circuit
court's determination that section 2--2(d) illegally discriminates
on the basis of gender and results in a denial of equal protection
of the laws in violation of section 18 of the bill of rights of the
Illinois Constitution of 1970.
II. Remedies
We next consider that part of the trial court's order which
held that, because section 2--2(d) was unconstitutional, section 2-
-1(d) of the Probate Act (755 ILCS 5/2--1(d) (West 1994) would
control the distribution of the estates of illegitimate decedents.
Section 2--1(d) governs the distribution of the estates of
legitimate decedents who die intestate without a surviving spouse
or descendants. That section allows both mothers and fathers (and
their descendants) to inherit from their legitimate children who
die intestate.
The Bank argues that, given the legislature's express intent
to prohibit intestate succession by fathers of illegitimate
children, the trial court erred in applying a statute which grants
unconditional intestate succession rights to such fathers and their
children. The Bank maintains that this court should formulate a
common law remedy to fill the statutory gap left by the order
declaring section 2--2(d) unconstitutional. Alternatively, the Bank
argues that the court should stay the mandate declaring section 2--
2(d) invalid and allow the General Assembly to enact a
constitutional replacement.
We find, however, that the trial court properly determined
that section 2--1(d) of the Probate Act should govern the
distribution of the estates of illegitimate decedents who die
intestate, at least until the legislature enacts a new statute
governing the distribution of such estates. Section 2--1 contains
the general rules of descent and distribution for the estates of
intestate decedents. On its face, section 2--1 applies to all
intestate decedents, without regard to whether they are legitimate
or illegitimate. In section 2--2, the legislature carved out an
exception to the general rules of section 2--1 for illegitimate
decedents. Thus, absent the limitations of section 2--2, section 2-
-1 would clearly apply to illegitimate decedents. Since we have
found section 2--2(d) unconstitutional, the general rules of
section 2--1 apply to govern the descent and distribution of the
estate of an illegitimate intestate decedent. We, therefore, find
that the general rules set forth in section 2--1 should govern the
distribution of Ronadra's estate. Obviously, the legislature is
free to enact a constitutional replacement of section 2--2, if it
believes that section 2--1 should not apply to illegitimate
decedents. For purposes of this case, however, section 2--1 must be
applied. The trial court's order distributing Ronadra's estate
pursuant to section 2--1(d) is therefore affirmed.
III. Cross-Appeal
We next address Ronald Hicks' cross-appeal, which challenges
that portion of the trial court's order that permitted the Bank, as
administrator of Ronadra's estate, to file an appeal and assessed
costs against the estate. Hicks argues that the administrator lacks
standing to appeal, because he acts solely as a stakeholder and is
not aggrieved by the trial court's decision. Hicks also contends
that the trial court erred in permitting the administrator to
litigate conflicting claims of beneficiaries at the expense of the
estate.
Initially, we note that it is the general rule that an
administrator of an estate ordinarily has no right to appeal an
order granting or denying a distribution of an estate. In re Estate
of Wagner, 184 Ill. App. 3d 882 (1989); Annotation, Right of
Executor or Administrator to Appeal From Order Granting or Denying
Distribution, 16 A.L.R.3d 1274, 1277 (1967). The rationale for this
rule is that the administrator is not an aggrieved party, but is
merely a stakeholder with a duty to deliver the residue of the
estate to those persons designated by the court. In re Estate of
Wagner, 184 Ill. App. 3d 882 (1989); see also In re Estate of
Burke, 203 Ill. App. 3d 319 (1990) (applying the same reasoning to
an executor); In re Estate of Tingos, 72 Ill. App. 3d 703 (1979)
(applying the same reasoning to an executor); 16 A.L.R.3d at 1277
(and the cases cited therein). An order granting or denying a
distribution of an estate affects the rights of those who have a
claim against the estate (e.g., an heir, legatee, or devisee) and
it is those persons who are considered to be aggrieved parties such
that they may appeal at their own expense. 16 A.L.R.3d at 1277. The
administrator of an estate, however, generally cannot litigate the
conflicting claims of the beneficiaries at the expense of the
estate. 16 A.L.R.3d at 1277.
In this case, the order appealed from was the trial court's
ruling that a portion of Ronadra's estate was to be distributed to
her father, Ronald Hicks, and his two children, Rochelle Hicks and
Ronyall Hicks. This ruling resulted in reducing the distributive
shares of Ronadra's mother, Sandra Bender, and her three children,
LaShawn, LaDonna and LaDiea Bender. Consequently, these individuals
were the parties "aggrieved" by the trial court's order and were
the proper parties to appeal the trial court's order. The Bank, as
administrator of the estate, was not an aggrieved party. As such,
the Bank did not have standing to bring this appeal in its capacity
as administrator of the estate. In re Estate of Wagner, 184 Ill.
App. 3d at 885-87. Therefore, we reverse the trial court's order
that allowed the Bank to file an appeal in its capacity as
administrator of Ronadra's estate.
Although the Bank has no standing to bring this appeal in its
capacity as administrator of Ronadra's estate, we nevertheless find
that this appeal is properly before this court. The record
indicates that the Bank acted in a dual capacity as both
administrator of Ronadra's estate and as guardian of the estates of
Ronadra's two maternal half-sisters, LaDonna and LaDiea Bender. The
trial court entered an order authorizing the Bank to appeal the
disposition of Ronadra's estate on behalf of those minor siblings.
We find that the trial court's order allowing the Bank to prosecute
this appeal on behalf of the decedent's two minor siblings was
proper because the aforementioned minors are aggrieved parties.
LaDonna and LaDiea Bender are aggrieved parties because the trial
court's order disposing of Ronadra's estate reduced their share of
the estate. Therefore, we hold that the Bank has standing to bring
this appeal in its capacity as guardian of the estates of LaDonna
and LaDiea Bender. However, because the Bank is bringing this
appeal on behalf of these two minor siblings and not on behalf of
Ronadra's estate, the estates of LaDonna and LaDiea Bender should
bear the reasonable costs and expenses, including attorney fees, of
the Bank in bringing this appeal. We thus reverse that portion of
the trial court's order assessing such costs and fees against the
estate.
CONCLUSION
We affirm the trial court's conclusion that section 2--2(d) of
the Probate Act unlawfully discriminates on the basis of gender, in
violation of the equal rights provision of the Illinois
Constitution. Ill. Const. 1970, art. I, 18. We also affirm the
trial court's holding that section 2--1(d) of the Probate Act (755
ILCS 5/2--1(d) (West 1994)) will control the distribution of the
estates of illegitimate decedents who die intestate without a
surviving spouse or descendants. We reverse the trial court's order
authorizing the Bank to bring this appeal in its capacity as
administrator of Ronadra's estate. We further reverse that portion
of the trial court's order assessing the costs and fees associated
with bringing the instant appeal against the estate. We hold,
however, that the Bank has standing to bring this appeal in its
capacity as guardian of the estates of Ronadra's minor half-
sisters, LaDonna and LaDiea Bender. We further hold that the Bank's
costs and fees are properly assessed against the estates of LaDonna
and LaDiea Bender, whom the Bank represented in bringing this
appeal.
The judgment of the circuit court is affirmed in part and
reversed in part.
Judgment affirmed in part
and reversed in part.
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Nos. 80604, 80677 cons.--Agenda 28--September 1996.
In re ESTATE OF RONADRA J. HICKS, Deceased (Mark Twain Illinois
Bank, Adm'r and Guardian of the Estates of LaDonna and LaDiea
Bender, Minors, Appellant, v. Ronald J. Hicks, Appellee).
Opinion filed December 19, 1996.
CHIEF JUSTICE BILANDIC delivered the opinion of the court:
At issue in this appeal is the constitutionality of section 2-
-2(d) of the Probate Act (755 ILCS 5/2--2(d) (West 1994)), which
provides that the estate of an illegitimate intestate who dies
without a surviving spouse or descendants shall be distributed to
his or her mother and the mother's children/descendants. The
circuit court of St. Clair County entered a judgment finding
section 2--2(d) unconstitutional because it permitted only mothers,
and not fathers, to inherit by intestate succession from their
illegitimate children, and thereby unlawfully discriminated on the
basis of gender, in violation of the equal rights provision of the
Illinois Constitution of 1970 (Ill. Const. 1970, art. I, 18). The
circuit court also determined that section 2--1 of the Probate Act
(755 ILCS 5/2--1 (West 1994)) would control the distribution of the
estates of illegitimate decedents. That section, which governs the
intestate succession of legitimate decedents, allows both mothers
and fathers (and their descendants) to inherit by intestate
succession from their legitimate children who die without a
surviving spouse or descendants.
FACTS
The decedent, Ronadra J. Hicks, was born on April 10, 1985,
and died on January 3, 1994. Shortly after Ronadra's death, her
mother, Sandra Williams Bender, filed a petition for letters of
administration and determination of heirship in the probate
division of the circuit court of St. Clair County. That court
entered an order appointing Mark Twain Bank (Bank) as the
administrator of Ronadra's estate. The circuit court also entered
an order determining heirship pursuant to section 2--2(d) of the
Probate Act, identifying as Ronadra's only heirs her mother, Sandra
Bender, and her three half-sisters, LaDonna, LaDiea and LaShawn
Bender.
The Bank filed an inventory reporting the sole asset of
Ronadra's estate to be an account with a balance of $94,148.27. The
circuit court subsequently entered a modified order of heirship,
distributing 50% of Ronadra's estate to her mother and the
remaining 50% in equal shares to her three half-sisters.
Subsequently, Ronald Hicks, Ronadra's biological father, filed
a motion to set aside the modified heirship order and the order
appointing the Bank as administrator of Ronadra's estate. Hicks'
motion alleged that he was named by Ronadra's mother in a petition
to establish parentage filed in the circuit court of St. Clair
County, and that he appeared before that court on March 3, 1988,
and admitted paternity (approximately three years after the child's
birth). The circuit court entered an order establishing paternity
and ordered Hicks to pay child support. Hicks' motion claimed that
he paid support for Ronadra up to the date of her death pursuant to
"an order of withholding previously entered." Hicks' motion sought
to set aside the heirship order and argued, inter alia, that "the
distinction between legitimacy and illegitimacy, as it pertains to
Ronald Hicks as father of the deceased, [is] unconstitutional." The
motion argued that Hicks should be included among the decedent's
heirs at law. The circuit court granted Hick's motion, finding
section 2--2(d) of the Probate Act (755 ILCS 5/2--2(d) (West 1994))
violative of article I, section 18, of the Illinois Constitution of
1970 (Ill. Const. 1970, art. I, 18). The circuit court declared
Hicks an heir of the decedent but denied further relief.
The trial court subsequently modified its order to find that,
having declared section 2--2(d) unconstitutional, section 2--1 of
the Probate Act (755 ILCS 5/2--1 (West 1994)) would control the
distribution of the estates of illegitimate decedents. Section 2--1
provides that the estate of a legitimate intestate who dies without
a surviving spouse or decedent shall be distributed to the
decedent's parents and the parents' other descendants, in equal
shares. Pursuant to this provision, the circuit court entered an
order finding that Ronadra's heirs at law included, not only her
mother and her mother's three surviving children, but also her
biological father and his two children, Rochelle Jeanette Hicks and
Ronyall J'nae Hicks. The trial court ordered that Ronadra's estate
be distributed in equal shares to each of Ronadra's seven heirs.
The trial court subsequently granted the Bank authority to
appeal its order, and held that the costs incurred in such an
appeal would be paid by the decedent's estate. The Bank's appeal
was brought directly to this court pursuant to Supreme Court Rule
302 (134 Ill. 2d R. 302). Hicks filed a cross-appeal, claiming that
the trial court erred in permitting the Bank to appeal the court's
determination of heirship at the expense of the estate.
ANALYSIS
I. Constitutionality
We first address the trial court's order declaring section 2--
2(d) of the Probate Act unconstitutional. The trial court found
section 2--2(d) unconstitutional on the ground that it created a
sex-based classification that could not withstand strict scrutiny.
Before reviewing the propriety of that finding, we briefly discuss
the standard under which the statute is reviewed.
Prior to ratification of the 1970 Illinois Constitution,
legislative enactments that classified on the basis of sex, like
most legislative classifications, were reviewed under the more
lenient, rational basis standard of judicial review. See, e.g.,
Jacobson v. Lenhart, 30 Ill. 2d 225, 227 (1964); Henson v. City of
Chicago, 415 Ill. 564 (1953). Article I, section 18, of the 1970
Constitution, however, specifically bars discrimination on the
basis of sex. Ill. Const. 1970, art. I, 18. That constitutional
provision states:
"The equal protection of the laws shall not be
denied or abridged on account of sex by the State or its
units of local government and school districts."
In People v. Ellis, 57 Ill. 2d 127 (1974), our court found that
this constitutional provision was intended to supplement and expand
the guarantees of the equal protection provision of the bill of
rights. The Ellis court determined that "a classification based on
sex is a `suspect classification' which, to be held valid, must
withstand `strict judicial scrutiny.' " Ellis, 57 Ill. 2d at 132-
33; see also Phelps v. Bing, 58 Ill. 2d 32, 35 (1974). Under the
strict scrutiny standard of review, a statute is not entitled to a
presumption of constitutionality. Rather, the statute may be upheld
only if the means employed by the legislature to achieve the stated
goal were necessary to advance a compelling state interest.
Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 73 (1990).
In addition, the statute must be narrowly tailored; that is, a
statute incorporating a suspect classification will be upheld only
if the legislature employed the least restrictive means consistent
with attainment of the legislative goal. Fumarolo v. Chicago Board
of Education, 142 Ill. 2d 54, 73 (1990).
A
With these principles in mind, we now consider the trial
court's order that section 2--2(d) illegally discriminated on the
basis of gender and resulted in a denial of equal protection of the
laws in violation of section 18 of article I of the Constitution of
1970. In addressing the propriety of this finding, we consider
first whether the statute creates a sex-based classification. As
stated, that section specifies the manner in which the estate of an
intestate decedent who was illegitimate at the time of death shall
be distributed. It provides:
"(d) If there is no surviving spouse or descendant
but the mother or a descendant of the mother of the
decedent: the entire estate to the mother and her
descendants, allowing 1/2 to the mother and 1/2 to her
descendants per stirpes." 755 ILCS 5/2--2(d) (West 1994).
The father of an illegitimate child who dies intestate is not
entitled to any part of his child's estate under the statute.
We agree with the trial court that the statute creates a sex-
based classification. The statute distinguishes between the parents
of an illegitimate child based solely upon the gender of the
parent. Because only females can occupy the status of motherhood,
only females are entitled to inherit from their illegitimate
offspring under the statutory scheme. By the same token, because
only males have the family position of fatherhood, only males are
unconditionally excluded under the statute from inheriting from
their illegitimate offspring. Thus, the statute creates a sex-based
classification and will be upheld only if it withstands strict
scrutiny.
B
We must therefore determine whether the statutory
classification is necessary to advance a compelling state interest
and whether it is narrowly tailored to achieve that interest.
Fumarolo, 142 Ill. 2d at 73. In an attempt to justify the sex-based
classification created by statute, the Bank argues that the
position of the biological father of an illegitimate child is
different from that of the biological mother and that the
differences in their situations justify the disparate treatment at
issue here.
1. Presumed Intent
The Bank first argues that the disparate treatment afforded to
the mothers and fathers of illegitimate children is justified by
the overriding purpose of section 2--2(d) and all laws governing
intestate succession, which is to give effect to the presumed
intent of deceased intestates. As the Bank notes, our intestacy
laws apply only when a deceased leaves no will, and such laws
represent a legislative effort to express the presumed wishes of a
deceased intestate. The Bank argues that section 2--2(d) accurately
reflects the presumed intent of illegitimate children who die
intestate. The Bank contends that section 2--2(d) accords mothers
of illegitimate children different inheritance rights than fathers
because the legislature recognized that illegitimate children
typically have a much closer relationship with their mothers than
with their fathers. The Bank notes that mothers not only bear the
physical and emotional ramifications of pregnancy, but also
customarily assume a disproportionate share of the responsibilities
of raising an illegitimate child. See King v. Commonwealth, 221 Va.
251, 269 S.E.2d 793 (1980). According to the Bank, fathers of
illegitimate children often fail to support their children, unless
compelled by court order to do so. In addition, the Bank asserts,
fathers frequently have no meaningful personal relationship with
their illegitimate children. It is reasonable, the Bank contends,
for the legislature to presume that illegitimate children bear no
affection for parents who fail to support and acknowledge them.
Accordingly, it claims that section 2--2(d) simply carries out the
deceased intestate's presumed wishes that his or her estate be
distributed only to his or her mother and her descendants.
The state certainly has a legitimate interest in enacting laws
that attempt to give effect to the presumed intentions of a
deceased intestate. The state may also have a legitimate interest
in enacting laws which allow only those parents who have
demonstrated an interest in their illegitimate children to inherit
by intestate succession. The United States Supreme Court has
recognized that "[i]f one parent has an established custodial
relationship with the child and the other parent has either
abandoned or never established a relationship, the Equal Protection
Clause does not prevent a State from according the two parents
different legal rights." Lehr v. Robertson, 463 U.S. 248, 267-78,
77 L. Ed. 2d 614, 630-31, 103 S. Ct. 2985, 2996-97 (1983). We
assume, for the sake of argument, that the State's interest in
enacting legislation which accomplishes these goals is compelling.
(Cf. Trimble v. Gordon, 430 U.S. 762, 775 n.16, 52 L. Ed. 2d 31, 42
n.16, 97 S. Ct. 1459, 1467 n.16 (1977) (suggesting that presumed
intent is not a valid state objective for purposes of the equal
protection clause, at least where the statute reflecting such
intent discriminates against illegitimates).
The question here is whether the discriminatory means employed
in section 2--2(d)--which discriminates against fathers of
illegitimate children--is narrowly tailored to achieve the state's
asserted goals. We conclude that it is not narrowly tailored
because the legislature did not employ the least restrictive means
for accomplishing its asserted purpose. Here, the state's interest
could be effectively achieved in a gender-neutral manner, by
allowing intestate succession by any parent who has acknowledged
and supported their illegitimate child. (See 8 U.L.A. 2--114(c)
(1991) (Uniform Probate Code) ("Inheritance from or through a child
by either natural parent or his [or her] kindred is precluded
unless the natural parent has openly treated the child as his [or
hers], and has not refused to support the child").
Instead, the challenged statute " `make[s] overbroad
generalizations based on sex which are entirely unrelated to any
differences between men and women [and] which demean the ability or
social status of the affected class.' " Michael M. v. Superior
Court, 450 U.S. 464, 469, 67 L. Ed. 2d 437, 442, 101 S. Ct. 1200,
1204 (1981), quoting Parham v. Hughes, 441 U.S. 347, 354, 60 L. Ed. 2d 269, 276, 99 S. Ct. 1742, 1747 (1979). Section 2--2(d) is based
upon the presumption that a particular parent will be involved or
uninvolved in their illegitimate child's life simply because that
parent happens to be a man or a woman. Not all mothers assume sole
responsibility for their illegitimate offspring, and not all
fathers abandon such offspring. In fact, by employing a gender-
based classification, section 2--2(d) may actually thwart the
legislature's desire to effectuate an illegitimate child's presumed
intent in some cases. By employing a gender-based criteria, section
2--2(d) allows a mother who abandons her illegitimate child at
birth to inherit from that child, while denying surviving fathers
the opportunity to inherit even where there is conclusive evidence
that they were objects of their child's affection. As stated, the
objectives of the statute could be completely and effectively
served by allowing intestate succession by any parent who has
acknowledged and supported their illegitimate child.
The Bank argues that administrative concerns support the
statute. The Bank, in effect, contends that it is more efficient
for the legislature to presume that mothers and not fathers are the
natural objects of their illegitimate child's affection than to
require a case-by-case determination. The United States Supreme
Court has held, however, that gender-based discrimination cannot be
justified on the grounds of administrative convenience. In Reed v.
Reed, 404 U.S. 71, 76, 30 L. Ed. 2d 225, 230, 92 S. Ct. 251, 254
(1971), the Court said that "[t]o give a mandatory preference to
members of either sex over members of the other, merely to
accomplish the elimination of hearings on the merits, is to make
the very kind of arbitrary legislative choice forbidden by the
Equal Protection Clause." See also Frontiero v. Richardson 411 U.S. 677, 689, 36 L. Ed. 2d 583, 593, 93 S. Ct. 1764, 1771-72 (1973)
(where the Court rejected an attempt to justify, on the grounds of
administrative convenience, a gender-based classification that
created a presumption that wives were dependent upon their
husbands, while requiring proof of dependency in the case of
husbands). By the same token, we find that the gender-based
classification found in section 2--2(d) cannot be justified on the
ground that it effectuates the intent of an illegitimate who dies
intestate, because the legislature did not employ the least
restrictive (i.e., gender-neutral) means of accomplishing that
purpose.
2. Penalizing Fathers of Illegitimates
The Bank next argues that the disparate treatment afforded to
mothers and fathers of illegitimates may be justified on the ground
that it effectuates the legislature's interest in encouraging
family relationships and penalizing irresponsible procreation. The
Bank concedes, however, that mothers and fathers bear equal moral
accountability for conceiving illegitimate children. The Bank also
concedes that mothers and fathers of an illegitimate child are
similarly situated in terms of their capacity to legitimate a
child. See Dotson v. Sears, Roebuck & Co., 157 Ill. App. 3d 1036
(1987). The Bank nevertheless argues that the statute granting
preferential inheritance rights to mothers of illegitimate children
is proper because it penalizes men who father children through
women whom they have no intention of marrying. The Bank argues that
imposing a penalty only upon fathers of illegitimate children is
appropriate, because women have a natural disincentive to avoid
unwanted pregnancies.
In Illinois, neither a mother nor a father may unilaterally
legitimize a child. An adjudication of paternity during the
fathers's lifetime does not thereby legitimize an illegitimate
child. Dotson v. Sears, Roebuck & Co., 157 Ill. App. 3d 1036
(1987). Rather, legitimization is accomplished only when an
illegitimate child's parents intermarry and the illegitimate child
is acknowledged by the father as his child. 755 ILCS 5/2--2(h)
(West 1994). Because marriage is possible only with the consent of
both parents, the means by which a child may be legitimated are
under the control of both parents. Therefore, the discriminatory
classification employed in section 2--2(d) may not be justified on
the ground that it properly penalizes fathers of illegitimate
children.
Section 2--2 is distinguishable in this respect from the
statute at issue in Parham, 441 U.S. at 355, 60 L. Ed. 2d at 277,
99 S. Ct. at 1747-48. In Parham, the Supreme Court upheld a statute
that permitted the father of an illegitimate child to sue for the
child's wrongful death only if he had legitimated the child during
the child's lifetime. In Parham, however, a state statute permitted
a father to legitimate his child simply by filing a petition in
state court identifying the child and its mother and requesting an
order of legitimation. The father therefore had the unilateral
power to legitimate his child and thereby remove himself from the
disability imposed by the wrongful death statute. In Illinois, on
the other hand, the father of an illegitimate child is powerless to
remove himself from the statutory burden imposed in section 2--
2(d), unless the mother of the child consents to legitimate their
child through marriage. We therefore reject the Bank's claim that
the discriminatory classification employed in section 2--2(d) may
be justified on the ground that it properly penalizes fathers of
illegitimate children.
3. Proof of Paternity
The Bank's proffered justifications for the gender-based
discrimination found in section 2--2(d) are far from the strict
showing required to sustain a gender-based classification under
article I, section 18, of the Illinois Constitution. We find it
appropriate to note at this juncture, however, that we do not
suggest that any gender-based classification would violate article
I, section 18, of the Illinois Constitution. Such classifications
will be upheld when they are narrowly tailored to accomplish a
compelling state purpose.
One potential justification for gender-based classifications
is the difficulties associated with proof of paternity. In this
regard, we note that the state has a legitimate interest in
ensuring that a decedent's estate is distributed only to actual
members of his family. The United States Supreme Court has
recognized that the danger of fraudulent claims against a
decedent's estate is more problematic where illegitimate children
and their parents are involved than in cases involving legitimate
children. See Trimble, 430 U.S. at 770, 52 L. Ed. 2d at 39, 97 S. Ct. at 1465; Lalli v. Lalli, 439 U.S. 259, 268-69, 58 L. Ed. 2d 503, 511-12, 99 S. Ct. 518, 525 (1978). The Supreme Court has also
recognized that the danger of fraudulent claims is more apparent in
cases involving fathers and their illegitimate children than in
cases involving mothers and illegitimate children, for the simple
reason that proof of paternity is more problematic than proof of
maternity. See Trimble, 430 U.S. at 770, 52 L. Ed. 2d at 39, 97 S. Ct. at 1465; Lalli, 439 U.S. at 268-69, 58 L. Ed. 2d at 511-12, 99 S. Ct. at 525.
The Court has noted that the identity of the mother of an
illegitimate child is rarely in doubt, since the birth of a child
is a recorded or registered event usually taking place in the
presence of others. Parham, 441 U.S. at 355, 60 L. Ed. 2d at 277,
99 S. Ct. at 1747-48; Lalli, 439 U.S. at 268, 58 L. Ed. 2d at 511,
99 S. Ct. at 525. The identity of the father, on the other hand, is
frequently a subject of dispute where an illegitimate child is
concerned.
In Trimble v. Gordon, the Court recognized " `the lurking
problems with respect to proof of paternity,' [citation], and the
need for the States to draw `arbitrary lines . . . to facilitate
the potentially difficult problems of proof,' [citation]." Trimble,
430 U.S. at 771, 52 L. Ed. 2d at 40, 97 S. Ct. at 1465. The Supreme
Court also noted that, "[t]he more serious problems of proving
paternity might justify a more demanding standard for illegitimate
children claiming under their fathers' estates than that required
either for illegitimate children claiming under their mothers'
estates or for legitimate children generally." Trimble, 430 U.S. at
770, 52 L. Ed. 2d at 39, 97 S. Ct. at 1465; see, e.g., Lalli v.
Lalli, 439 U.S. 259, 268-69, 58 L. Ed. 2d 503, 511-12, 99 S. Ct. 518, 525 (1978) (upholding statute that allowed illegitimate
children to inherit unconditionally from their mothers, but allowed
inheritance for an intestate father only where a court order
declaring paternity was entered during the father's lifetime,
finding the evidentiary requirement substantially related to the
state's interest in avoiding the difficulties associated with proof
of paternity and exposure to spurious claims); Parham v. Hughes,
441 U.S. 347, 60 L. Ed. 2d 269, 99 S. Ct. 1742 (1979) (right to
bring wrongful death action); Caban v. Mohammed, 441 U.S. 380, 393
n.15, 60 L. Ed. 2d 297, 308 n.15, 99 S. Ct. 1760, 1768 n.15 (1979)
(adoption); 755 ILCS 5/2--2(h) (West 1994).
The "lurking problems" associated with proof of paternity may
also arise in circumstances where a father is attempting to inherit
from his illegitimate child's estate. Thus, when enacting statutes
which govern the rights of parents to inherit from their
illegitimate children, such as section 2--2(d), the legislature has
a legitimate interest in adopting measures that minimize or avoid
the difficult problems associated with proof of paternity. The more
serious problems of proving paternity might justify a more
demanding standard for fathers claiming under their illegitimate
children's estates than that required for mothers claiming under
the estates of their illegitimate children.
The distinction drawn in section 2--2(d) between mothers and
fathers of illegitimate children, however, cannot be justified on
this ground. Section 2--2(d) cannot withstand strict scrutiny,
because the statute is not narrowly tailored to effectuate the
state's interests in avoiding either the difficulties associated
with proof of paternity after the illegitimate child's death or the
danger of fraudulent claims by purported fathers against the
estates of illegitimate children. Section 2--2(d) bars all fathers
from inheriting from the estates of their illegitimate children.
The statutory bar applies even in cases, such as this, where the
father's paternity has been established in a judicial proceeding
during the child's lifetime.
In this respect, section 2--2(d) is comparable to a section of
the Illinois Probate Act that the United States Supreme Court
struck down in Trimble as violative of the equal protection clause
of the federal constitution. The statute at issue in Trimble
allowed illegitimate children to inherit by intestate succession
only from their mothers, but not through their fathers. The Supreme
Court found the statute unconstitutional under the lenient rational
basis standard of review, stating that the "[d]ifficulties of
proving paternity in some situations do not justify the total
statutory disinheritance of illegitimate children whose fathers die
intestate." Trimble, 430 U.S. at 772, 52 L. Ed. 2d at 40, 97 S. Ct.
at 1466.
The Court found that the statute was not "carefully tuned to
alternative considerations" since it excluded inheritance by
illegitimates even when the decedent was determined to be the
illegitimate child's father in a state court paternity action. The
Court concluded that the statute was constitutionally flawed
because it excluded significant categories of illegitimate children
whose inheritance rights could be recognized without jeopardizing
the orderly settlement of estates. Trimble, 430 U.S. at 770, 52 L. Ed. 2d at 39, 97 S. Ct. at 1465.
Section 2--2(d) is similarly flawed. The problems associated
with proving paternity might justify a statute that imposes a more
demanding standard on fathers claiming under their illegitimate
children's estates than that required for mothers claiming under
their illegitimate children's estate. The difficulties of proving
paternity in some situations, however, do not justify the total
statutory disinheritance of all fathers of illegitimate children
who die intestate. Section 2--2(d) cannot withstand strict
scrutiny, because that statute does not adopt the least restrictive
means of accomplishing the legislative goal of eliminating the
danger of fraudulent claims by putative fathers against their
illegitimate child's estate. Accordingly, we affirm the circuit
court's determination that section 2--2(d) illegally discriminates
on the basis of gender and results in a denial of equal protection
of the laws in violation of section 18 of the bill of rights of the
Illinois Constitution of 1970.
II. Remedies
We next consider that part of the trial court's order which
held that, because section 2--2(d) was unconstitutional, section 2-
-1(d) of the Probate Act (755 ILCS 5/2--1(d) (West 1994) would
control the distribution of the estates of illegitimate decedents.
Section 2--1(d) governs the distribution of the estates of
legitimate decedents who die intestate without a surviving spouse
or descendants. That section allows both mothers and fathers (and
their descendants) to inherit from their legitimate children who
die intestate.
The Bank argues that, given the legislature's express intent
to prohibit intestate succession by fathers of illegitimate
children, the trial court erred in applying a statute which grants
unconditional intestate succession rights to such fathers and their
children. The Bank maintains that this court should formulate a
common law remedy to fill the statutory gap left by the order
declaring section 2--2(d) unconstitutional. Alternatively, the Bank
argues that the court should stay the mandate declaring section 2--
2(d) invalid and allow the General Assembly to enact a
constitutional replacement.
We find, however, that the trial court properly determined
that section 2--1(d) of the Probate Act should govern the
distribution of the estates of illegitimate decedents who die
intestate, at least until the legislature enacts a new statute
governing the distribution of such estates. Section 2--1 contains
the general rules of descent and distribution for the estates of
intestate decedents. On its face, section 2--1 applies to all
intestate decedents, without regard to whether they are legitimate
or illegitimate. In section 2--2, the legislature carved out an
exception to the general rules of section 2--1 for illegitimate
decedents. Thus, absent the limitations of section 2--2, section 2-
-1 would clearly apply to illegitimate decedents. Since we have
found section 2--2(d) unconstitutional, the general rules of
section 2--1 apply to govern the descent and distribution of the
estate of an illegitimate intestate decedent. We, therefore, find
that the general rules set forth in section 2--1 should govern the
distribution of Ronadra's estate. Obviously, the legislature is
free to enact a constitutional replacement of section 2--2, if it
believes that section 2--1 should not apply to illegitimate
decedents. For purposes of this case, however, section 2--1 must be
applied. The trial court's order distributing Ronadra's estate
pursuant to section 2--1(d) is therefore affirmed.
III. Cross-Appeal
We next address Ronald Hicks' cross-appeal, which challenges
that portion of the trial court's order that permitted the Bank, as
administrator of Ronadra's estate, to file an appeal and assessed
costs against the estate. Hicks argues that the administrator lacks
standing to appeal, because he acts solely as a stakeholder and is
not aggrieved by the trial court's decision. Hicks also contends
that the trial court erred in permitting the administrator to
litigate conflicting claims of beneficiaries at the expense of the
estate.
Initially, we note that it is the general rule that an
administrator of an estate ordinarily has no right to appeal an
order granting or denying a distribution of an estate. In re Estate
of Wagner, 184 Ill. App. 3d 882 (1989); Annotation, Right of
Executor or Administrator to Appeal From Order Granting or Denying
Distribution, 16 A.L.R.3d 1274, 1277 (1967). The rationale for this
rule is that the administrator is not an aggrieved party, but is
merely a stakeholder with a duty to deliver the residue of the
estate to those persons designated by the court. In re Estate of
Wagner, 184 Ill. App. 3d 882 (1989); see also In re Estate of
Burke, 203 Ill. App. 3d 319 (1990) (applying the same reasoning to
an executor); In re Estate of Tingos, 72 Ill. App. 3d 703 (1979)
(applying the same reasoning to an executor); 16 A.L.R.3d at 1277
(and the cases cited therein). An order granting or denying a
distribution of an estate affects the rights of those who have a
claim against the estate (e.g., an heir, legatee, or devisee) and
it is those persons who are considered to be aggrieved parties such
that they may appeal at their own expense. 16 A.L.R.3d at 1277. The
administrator of an estate, however, generally cannot litigate the
conflicting claims of the beneficiaries at the expense of the
estate. 16 A.L.R.3d at 1277.
In this case, the order appealed from was the trial court's
ruling that a portion of Ronadra's estate was to be distributed to
her father, Ronald Hicks, and his two children, Rochelle Hicks and
Ronyall Hicks. This ruling resulted in reducing the distributive
shares of Ronadra's mother, Sandra Bender, and her three children,
LaShawn, LaDonna and LaDiea Bender. Consequently, these individuals
were the parties "aggrieved" by the trial court's order and were
the proper parties to appeal the trial court's order. The Bank, as
administrator of the estate, was not an aggrieved party. As such,
the Bank did not have standing to bring this appeal in its capacity
as administrator of the estate. In re Estate of Wagner, 184 Ill.
App. 3d at 885-87. Therefore, we reverse the trial court's order
that allowed the Bank to file an appeal in its capacity as
administrator of Ronadra's estate.
Although the Bank has no standing to bring this appeal in its
capacity as administrator of Ronadra's estate, we nevertheless find
that this appeal is properly before this court. The record
indicates that the Bank acted in a dual capacity as both
administrator of Ronadra's estate and as guardian of the estates of
Ronadra's two maternal half-sisters, LaDonna and LaDiea Bender. The
trial court entered an order authorizing the Bank to appeal the
disposition of Ronadra's estate on behalf of those minor siblings.
We find that the trial court's order allowing the Bank to prosecute
this appeal on behalf of the decedent's two minor siblings was
proper because the aforementioned minors are aggrieved parties.
LaDonna and LaDiea Bender are aggrieved parties because the trial
court's order disposing of Ronadra's estate reduced their share of
the estate. Therefore, we hold that the Bank has standing to bring
this appeal in its capacity as guardian of the estates of LaDonna
and LaDiea Bender. However, because the Bank is bringing this
appeal on behalf of these two minor siblings and not on behalf of
Ronadra's estate, the estates of LaDonna and LaDiea Bender should
bear the reasonable costs and expenses, including attorney fees, of
the Bank in bringing this appeal. We thus reverse that portion of
the trial court's order assessing such costs and fees against the
estate.
CONCLUSION
We affirm the trial court's conclusion that section 2--2(d) of
the Probate Act unlawfully discriminates on the basis of gender, in
violation of the equal rights provision of the Illinois
Constitution. Ill. Const. 1970, art. I, 18. We also affirm the
trial court's holding that section 2--1(d) of the Probate Act (755
ILCS 5/2--1(d) (West 1994)) will control the distribution of the
estates of illegitimate decedents who die intestate without a
surviving spouse or descendants. We reverse the trial court's order
authorizing the Bank to bring this appeal in its capacity as
administrator of Ronadra's estate. We further reverse that portion
of the trial court's order assessing the costs and fees associated
with bringing the instant appeal against the estate. We hold,
however, that the Bank has standing to bring this appeal in its
capacity as guardian of the estates of Ronadra's minor half-
sisters, LaDonna and LaDiea Bender. We further hold that the Bank's
costs and fees are properly assessed against the estates of LaDonna
and LaDiea Bender, whom the Bank represented in bringing this
appeal.
The judgment of the circuit court is affirmed in part and
reversed in part.
Judgment affirmed in part
and reversed in part.
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