2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 2 - Descent and Distribution
Article 1 - General Provisions
§ 53-2-3. Inheritance by Children Born Out of Wedlock

Universal Citation: GA Code § 53-2-3 (2020)

The rights of inheritance of a child born out of wedlock shall be as follows:

  1. A child born out of wedlock may inherit in the same manner as though legitimate from or through the child's mother, the other children of the mother, and any other maternal kin;
    1. A child born out of wedlock may not inherit from or through the child's father, the other children of the father, or any paternal kin by reason of the paternal kinship, unless:
      1. A court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
      2. A court of competent jurisdiction has otherwise entered a court order establishing paternity;
      3. The father has executed a sworn statement signed by him attesting to the parent-child relationship;
      4. The father has signed the birth certificate of the child; or
      5. There is other clear and convincing evidence that the child is the child of the father.
      1. Subparagraph (A) of this paragraph notwithstanding, a child born out of wedlock may inherit from or through the father, other children of the father, or any paternal kin by reason of the paternal kinship if evidence of the rebuttable presumption of paternity described in this subparagraph is filed with the court before which proceedings on the estate are pending and the presumption is not overcome to the satisfaction of the trier of fact by clear and convincing evidence.
      2. There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity. Parentage-determination genetic testing shall include, but not be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes.
    2. If any one of the requirements of divisions (i) through (v) of subparagraph (A) of this paragraph is fulfilled, or if the presumption of paternity set forth in subparagraph (B) of this paragraph shall have been established and shall not have been rebutted by clear and convincing evidence, a child born out of wedlock may inherit in the same manner as though legitimate from and through the child's father, the other children of his or her father, and any other paternal kin;
  2. In distributions under this Code section, the children of a deceased child born out of wedlock shall represent that deceased child.

(Code 1981, §53-2-3, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 4.)

Law reviews.

- For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For article surveying 1982 Eleventh Circuit cases involving constitutional civil law, see 34 Mercer L. Rev. 1221 (1983). For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For article, "Georgia Inheritance Rights of Children Born Out of Wedlock," see 23 Ga. St. B.J. 28 (1986). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015). For note on the role of a judicial determination of paternity in the inheritance rights of illegitimate children in Georgia, see 16 Ga. L. Rev. 170 (1981). For note on 1991 amendment of former O.C.G.A. § 53-4-4, see 8 Ga. St. U.L. Rev. 197 (1992). For comment on equitable adoption, equitable legitimation, and inheritance in extralegal family arrangements, see 48 Emory L.J. 943 (1999).

COMMENT

This Code section carries over the concepts of former OCGA Sec. 53-4-4. Subsection (a) of the former Code section is eliminated as unnecessary. Subsection 2(A)(v) of the current law modifies the former law by requiring clear and convincing evidence of the paternity and the existence of a de facto parent-child relationship, or proof that such relationship would have existed if the father had not died before the child was born. This replaces the requirement of former law that it be shown that the father intended the child to share in the father's estate in the same manner as if the child were legitimate.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 1800, former Civil Code 1910, § 3029, and former O.C.G.A. § 53-4-4 are included in the annotations for this Code section.

Constitutionality.

- Georgia's pre-1980 intestacy scheme concerning illegitimate children (formerly Code 1933, § 113-904) was unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment, because the statute excluded significant categories of illegitimates whose inheritance rights could be recognized without jeopardizing the orderly administration of estates. Poulos v. McMahan, 250 Ga. 354, 297 S.E.2d 451 (1982) (decided under former O.C.G.A. § 53-4-4); Hill v. Newman, 254 Ga. 57, 325 S.E.2d 767 (1985);(decided under former O.C.G.A. § 53-4-4).

Sufficient evidence of right to inherit.

- Right to inherit under O.C.G.A. § 53-2-3 was established notwithstanding the fact that decedent never took steps to legitimate petitioner where decedent acknowledged petitioner as his biological child and acknowledged petitioner's son as his grandchild. There was a rebuttable presumption that the man who was married to claimant's mother at the time of claimant's birth was the biological father. In re Estate of Slaughter, 246 Ga. App. 314, 540 S.E.2d 269 (2000).

Born-out-of-wedlock claimant was entitled to a rebuttable presumption under O.C.G.A. § 53-2-3(2)(B) that a decedent was the claimant's father, and that the claimant was entitled to inherit from the estate because the claimant produced parentage-determinative genetic testing, which established at least a 97% probability that the decedent was the claimant's father. In re Estate of Warren, 300 Ga. App. 408, 685 S.E.2d 411 (2009).

No retrospective operation.

- The 1991 amendment of former O.C.G.A. § 53-4-4 to provide additional conditions under which a child born out of wedlock may inherit from or through a father would not be given retrospective effect. Sardy v. Hodge, 264 Ga. 548, 448 S.E.2d 355 (1994), cert. denied, 513 U.S. 1191, 115 S. Ct. 1255, 131 L. Ed. 2d 135 (1995) (decided under former O.C.G.A. § 53-4-4).

Discussion of United States Supreme Court decisions.

- See Poulos v. McMahan, 250 Ga. 354, 297 S.E.2d 451 (1982) (decided under former O.C.G.A. § 53-4-4).

Use of section by federal Social Security Act held unconstitutional.

- As applied to this case, the incorporation by the federal Social Security Act, 42 U.S.C. § 402(d), of the Georgia intestacy scheme to require a child seeking survivors benefits to establish paternity within two and one-half years violated equal protection. Daniels ex rel. Daniels v. Sullivan, 979 F.2d 1516 (11th Cir. 1992) (decided under former O.C.G.A. § 53-4-4).

"Clear and convincing," as applied to evidence under former O.C.G.A. § 53-4-4, is a more stringent standard than "preponderating" and requires a greater quantum and high quality of proof in plaintiff's favor. In re Estate of Burton, 265 Ga. 122, 453 S.E.2d 16 (1995) (decided under former O.C.G.A. § 53-4-4).

Effect of doctrine of virtual legitimation.

- Doctrine of virtual or equitable legitimation will allow an illegitimate child to inherit from the child's intestate father's estate when the evidence is clear and convincing. Prince v. Black, 256 Ga. 79, 344 S.E.2d 411 (1986), rev'g, 176 Ga. App. 465, 336 S.E.2d 318 (1985) (decided under former O.C.G.A. § 53-4-4).

Child born out of wedlock is not required to prove by clear and convincing evidence that the child's natural father intended the child to share in his estate as prescribed by the rules of descent and distribution, just that he intended that the child take from his estate. Varner v. Sharp, 219 Ga. App. 125, 464 S.E.2d 388 (1995) (decided under former O.C.G.A. § 53-4-4).

If a child born out of wedlock does prove that decedent was the child's father and that he intended for the child to take from the estate, the court must determine, based upon the rules of intestate succession, the amount to which the child is entitled; the burden of proving such amount does not rest with the child. Varner v. Sharp, 219 Ga. App. 125, 464 S.E.2d 388 (1995) (decided under former O.C.G.A. § 53-4-4).

Doctrine of virtual legitimation applied.

- When decedent's actions indicated that decedent was in the process of taking all the necessary steps to ensure that the child whom he and his cohabitant had conceived would be born into a legitimate family environment, and everything necessary for his divorce from his estranged wife was complete except for the final decree, there was clear and convincing evidence that decedent intended for his unborn child to be born into a legitimate family environment, and his unexpected death would not defeat the claim of the child, who could inherit under the doctrine of virtual legitimation. Simpson v. King, 259 Ga. 420, 383 S.E.2d 120 (1989) (decided under former O.C.G.A. § 53-4-4).

Doctrine of virtual legitimation not applied retroactively.

- Alleged illegitimate children were not entitled to inherit from father's estate since the children could not produce an order establishing parentage, and the doctrine of virtual legitimation did not apply since inheritance had been settled. Tolbert v. Whatley, 223 Ga. App. 508, 478 S.E.2d 587 (1996) (decided under former O.C.G.A. § 53-4-4).

Only illegitimate child through maternal line obtained interest in property.

- When the owner of a tract of land died in 1926 and the owner's sole surviving heirs were a nephew and niece who died in 1942 and 1947, respectively, each of whom was survived by an illegitimate son, the son of the niece inherited sole title to the property through the maternal line of descent, although he and the son of the nephew have since operated under the assumption that they were co-owners. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983) (decided under former O.C.G.A. § 53-4-4).

Right of minor child for 12 months' support is not controlled by former O.C.G.A. § 53-4-4 and therefore that law could not be the basis of a caveat in the probate court. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former O.C.G.A. § 53-4-4).

Paternity order insufficient for inheritance.

- Court order finding deceased to be the illegitimate child's father for the purpose of a liability action does not suffice as a court order establishing paternity since the order would not have existed had deceased lived. In re Adventure Bound Sports, Inc., 858 F. Supp. 1192 (S.D. Ga. 1994) (decided under former O.C.G.A. § 53-4-4).

Decedent's intent that illegitimate daughter inherit.

- Despite conflicting evidence, the trial court was authorized under the evidence presented to find clear and convincing proof of decedent's intent that his daughter born out of wedlock inherit from the estate. Sharp v. Varner, 226 Ga. App. 570, 486 S.E.2d 701 (1997) (decided under former O.C.G.A. § 53-4-4).

Cited in Langmade v. Tuggle, 78 Ga. 770, 3 S.E. 666 (1887); Curlew v. Jones, 146 Ga. 367, 91 S.E. 115 (1917); Pair v. Pair, 147 Ga. 754, 99 S.E. 295 (1918); Wilson v. James, 260 Ga. 234, 392 S.E.2d 5 (1990); Youmans v. Ormandy, 206 Ga. App. 255, 424 S.E.2d 828 (1992).

RESEARCH REFERENCES

ALR.

- Right of illegitimate grandchildren to take under testamentary gift to "grandchildren,", 17 A.L.R.4th 1292.

Adopted child as subject to protection of statute regarding rights of children pretermitted by will, or statute preventing disinheritance of child, 43 A.L.R.4th 947.

Eligibility of illegitimate child for survivor's benefits under Social Security Act, pursuant to § 216(h)(2)(A) of Act (42 USCS § 416(h)(2)(A)), where state intestacy law denying inheritance right, or application of that state law to § 216(h)(2)(A), may violate child's right to equal protection of laws, 116 A.L.R. Fed. 121.

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