Who Qualifies as Issue of a Decedent?

Key Background Facts:

Key Facts:

Under intestacy, any surviving spouse is the 1st in line to inherit, and the decedent's issue, or descendants, are next. If no surviving issue, then the ancestors of the decedent are next in line. It is possible to not only inherit from someone in the line of descent, but also through someone, if that someone is dead. Although the child usually inherits from the parent, sometimes the parent inherits from the child, or if a grandparent is still alive, then the grandparent may inherit from the child through the parent. Hence, the line of descent is important in determining the intestate distribution of property.

But who actually qualifies as issue of the deceased? Obviously, children and grandchildren qualify, but what about step-children or adopted children?

A line of descent can always be viewed as a series of parent-child relationships. For instance, where there is a parent, child, and grandchild, the parent is the parent of the child and the child is the parent of the grandchild. Hence, for one to be considered issue of another, there must be an unbroken line of parent-child relationships, and so, the determination of whether one is the issue of another reduces to establishing the chain of parent-child relationships leading to the individual in question.

Although a child's natural parents are the ones who provided the actual gametes from which the child was conceived, there is a legal presumption that a child born to a married couple is a natural child of the couple, who has the right to inherit from either parent and either parent can inherit from the child.

Under the Uniform Probate Code (UPC), considered the modern trend, a parent who does not acknowledge the child or who refuses to support the child does not have the right to inherit either from or through the child.

If a child is born within 280 days (300 days under the Uniform Parentage Act §204) after the husband of the mother has died, a rebuttable presumption arises that the deceased husband was the father of the child.

Illegitimate Children

An illegitimate child is one born out of wedlock. Common law treated the illegitimate child as being the child of no one, which is harsh, since the child had no responsibility for its birth. Nowadays, an illegitimate child is legally considered the child of the natural mother.

However, to be considered the child of the natural father, the child must prove paternity. Although jurisdictions differ as to requirements, paternity may be established if the father marries the mother; the father acknowledges the child; or the father's paternity was established by adjudication, based either on the preponderance of the evidence or clear and convincing evidence.

Under the Uniform Parentage Act, a presumption of paternity exists where the father takes the child into his home and raises it as his own, or, where the law allows, the father acknowledges paternity by filing the necessary documents with a court or designated administrative agency. If there is a presumption of paternity, the child can bring an action to establish paternity at any time; if there is no presumption, then the action must be brought within 3 years of the child reaching the age of majority.

Under the Uniform Probate Code, which most states have adopted, at least in parts, there is a presumption of paternity where the father treats the child as his own and provides support for it. In some jurisdictions, a presumption of paternity can arise if the relatives of the father treat the child as the child of the father and provide support for it.


When a child is adopted, it has both natural parents and adopted parents. What rights that either the child or both sets of parents have differs according to jurisdiction.

However, the general rule is that adoption severs all ties with the natural parents and the adopting parents replace the natural parents as legal parents of the child. Hence, only the adopting parents can inherit from or through the child and the child can only inherit from or through the adopting parents, not the natural parents.

However, under the modern trend, there is an exception for adopting stepparents. If a stepparent who is married to the natural parent adopts the child, then both the stepparent and the child have the same rights of inheritance as they would under the general rule of adoption, but the natural parent of the child who no longer lives with the child cannot inherit either from or through the child, since, in agreeing to the adoption, the natural parent is allowing the stepparent to legally replace the natural parent, including the natural parent's right to inherit from or through the child.

The child, however, still can inherit either from or through the natural parent. Some courts have held that an adopted child should have no more rights than a natural child (Hall v. Vallandingham, 540 A.2d 1162, Md. Application. 1988), but the modern trend is to still allow the child to inherit from or through both natural parents. The rationale for the modern trend is that if the child is a minor, it has no say about the adoption, and hence, shouldn't lose any rights because of the adoption.

Although unusual, adults can also be adopted and in most jurisdictions, an adopted adult has the same rights as an adopted child.

Adoption Under Wills and Will Substitutes

Under common law, wills and will substitutes often referred to children without making a distinction in regard to whether they were adopted or not. Generally, it is the testator's intent that is controlling. However, if the testator's intent was not clear in regard to adopted children, or made no reference to it, common law generally allowed a child to inherit from, but not through the adopting parents unless there was an express provision in the document disinheriting the child. The rationale for not allowing the child to inherit through the adopting parents is that a remote testator may not have considered adoption since the testator was not part of the immediate family.

However, the modern trend is to allow the adopted child to inherit both from and through the adopting parents, although courts have been reluctant to extend those rights to adopted adults, since many adults are adopted for the express purpose of allowing them to inherit (ex: Minary v. Citizens Fidelity Bank & Trust Co, 419 S.W.2d 340, Ky. App. 1967).

Equitable Adoption

Equitable adoption occurs when the natural parents have agreed to the adoption, but the adopting parents did not complete the legal requirements for adoption before they died. Equitable adoption has 5 specific requirements before the child can receive a share of the intestate property: there was an agreement — written, oral, or implied — to have the adopting parents adopt the child; the natural parents have given up custody of the child; the child moved in with the adopting parents; the adopting parents have taken the child into their home and raised it; and the adopting parents died intestate. Some judges have argued, mostly in dissenting opinions, that the requirements for equitable adoption are too strict, and that an emphasis should be placed on whether the child believed that it was adopted and substantially performed by moving in with the adopting parents and living as their child.

Under equitable adoption, the child has a right to inherit from the adopting parents, but the adopting parents have no right to inherit either from or through the child. Because the adoption was not completed, the child's legal relationship with its natural parents was not severed, and, thus, both the natural parents and the child retain all rights of inheritance from each other.

Children Conceived Using Reproductive Technology

Nowadays, a child can be conceived by artificially bringing the sperm and egg together to achieve conception. The gametes may or may not be the gametes of the couple contracting for the human reproductive services, and there may be a surrogate mother if the contracting woman is unable to carry a child. The laws concerning the rights of the parties involved is in flux, but any establishment of custody rights is res judicata for inheritance rights — in other words, the parents with legal custody are considered the parents of the child.

Because both sperm and eggs can be stored cryogenically for long periods of time, it is possible that the conception could occur long after either or both parents have died. To bring certainty and finality to the distribution of the property, at least some jurisdictions are requiring that the conception take place within a reasonable amount of time of the parent's death. For posthumously conceived children, the Massachusetts Supreme Judicial Court has recently ruled that the dead parent must be the genetic parent of the child and that he had consented to the conception and the support of the child (Woodward v. Commissioner of Social Security, 760 N.E.2d 257, Mass. 2002).