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Friday, August 16, 2019

My husband has an illegitimate child. Does he have a claim against my husband's estate?

I am often asked by clients and readers of this blog about how children born out of wedlock affect the estate planning of the biological parent. I was recently asked an interesting question along those lines by a reader and I've decided to share it here because I think it brings up a scenario that is familiar to many people. Here is the question and my response:

My husband and I, both in our 80s, have recently made our wills leaving everything to each other and then equally to our children. My husband has a son from an affair while we were married. The son lives in another country and we are in Canada. The son appears to be well educated with a good profession. He has tried to make contact with my husband. Must he be mentioned in our will? Could he contest his father's will and would that interfere with my inheritance if my husband dies first?

As with most questions about how laws apply to real people, the answer isn't just a simple yes or no. At least, not without several more details.

You have not said whether the son was adopted by anyone else. I am thinking of a step-father who might have adopted him upon marrying the boy's mother. If the son was adopted by anyone else, he would legally no longer be the child of your husband and there would simply be no question of the son  having any right at all to inherit anything from your husband. Since the fact of adoption was not included in your question, I am going to proceed as if there was no adoption.

The law does not distinguish between legitimate and illegitimate children when it comes to a right to inherit. So, we start off with the premise that the illegitimate son is of equal legal status with the children of your marriage. The fact that there doesn't seem to be a relationship between father and son, at least not that you've described, doesn't automatically mean anything though it could be relevant when combined with other facts.

Then we look at whether the son would be able to leverage his biological relationship into a claim against the estate. He is not a minor. He is not a post-secondary student. He is not disabled. He is not financially dependent upon your husband. These facts mean that he is not a person who would automatically have the right to contest the will based on the idea of dependency. This is a big question out of the way, since the courts tend to be sympathetic to dependents who are left out of wills and who are struggling because of it.

Having excluded that possibility, we then look at whether there would be any other right to contest the will. I note that although I have not identified your province in order to protect your privacy, you are not in British Columbia where the laws that allow children to contest their parents' wills are somewhat different than the test of the country. In Canada, parents are not required to leave their estates to their adult, financially independent children, either equally or at all. We do have a strong tradition of doing so, and this is usually what our children expect us to do. But parents have the right to leave their estates where they choose, within some restrictions.

It is not necessary for your husband to mention the son in his will. A misconception that I hear often is that if you leave a person a dollar in your will, he can't sue you. Well, that's nonsense of course, but the grain of truth behind it is that if you leave someone a small gift in your will, it shows that they weren't left out accidentally (say, by a typo or the lawyer not recording a name, etc).Your husband may choose to leave something to the son. He might also choose to state in his will that he is aware of the son but isn't leaving him anything because he doesn't have a relationship with him. It achieves the same thing.

From what you've told me, I do not believe that the son would have any claim against your husband's estate that would succeed in court. Obviously I can't guarantee that he wouldn't try, since I am approached regularly by people who want to contest wills for no reason other than they are ticked off.


7 comments:

  1. "made our wills leaving everything to each other and then equally to our children. ...
    Could he contest his father's will and would that interfere with my inheritance if my husband dies first?"

    Isn't there a more straightforward answer based on the info above?

    If the wife survives the husband the inheritance goes to her, as stated. The children, "legitimate" or not, are not yet in line.

    Later when the wife passes her will states that the inheritance goes to her children.

    In this order of succession the wife's inheritance is not at risk

    ReplyDelete
  2. "made our wills leaving everything to each other and then equally to our children. ...
    Could he contest his father's will and would that interfere with my inheritance if my husband dies first?"

    Isn't there a more straightforward answer based on the info above?

    If the wife survives the husband the inheritance goes to her, as stated. The children, "legitimate" or not, are not yet in line.

    Later when the wife passes her will states that the inheritance goes to her children.

    In this order of succession the wife's inheritance is not at risk

    ReplyDelete
  3. Why the hell wouldn't he be in his child's life? And why the hell wouldn't she want his child to get something? People like them deserve to die and rot in hell. Idc what the situation is that's his child and he should get what the others get !

    ReplyDelete
    Replies
    1. I have no idea why he wouldn't be in his child's life. I personally know of situations in which it is a million times better for the child not to be in contact with the father. When clients come to me for solutions, it's not up to me to pass moral judgments about things I have no knowledge of.

      The law agrees with you about all children inheriting equally. Legally all biological and adopted children have the same right to inherit, regardless of whether the parent is "in their life". Again, no moral judgment, just the law.

      Lynne

      Delete
    2. I should probably add that some people do not have their kids in their lives because the kids are violent towards them. I've met seniors who are regularly beaten black and blue by their own children, nieces, nephews and grandchildren. It's not all sweetness and light, no matter the relationship. I've also met many people whose children have acted so horribly toward them that they have removed the toxic children from their lives. Don't judge until you've walked a mile in their shoes.

      Lynne

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  4. AH, I am a college educated, able bodied, 40 year old product of my never married mother and my father who is still married. I did not know who my father was until very recently, years after my mother died. My father visited my mother and I a number of times over the years. He was really abusive. His daughter is one year younger and has refereed to me as her sister to a friend of ours (we were forced to do ballet together as maybe 4 or 5 year olds).My father and his daughter are wealthy and successful. They look at me like my existence is a joke. (once getting his daughter's twins to gift me garbage in the park while they laughed) I want to do anything and everything to contest the will or anything else. I am a person, not a joke, accident or wild oats. He would drop in whenever and beat me when I was little, I fucking hate them. What else can I do? I am also trying to find out if I can force a dna test. I do not need the money, I do okay, but I am still going to do this.

    ReplyDelete
    Replies
    1. I'm really sorry to hear how people have treated you. I can see how you might want to strike out at them in any way that you can.

      If you want to contest a will, you have to have legal grounds for it. The fact that your father was abusive or even a complete and utter asshat does not entitle you to anything. Grounds for contesting a will include such things as your father not having mental capacity or someone forcing him to make a will he didn't want.

      It is not true that anyone can contest a will for any reason, so you might find it difficult to carry out that intention.

      It is important to know that as a biological child, you are entitled to whatever your father's other biological children are entitled to. The law of inheritance does not differentiate between married and unmarried parents when it comes to the inheritance rights of the children.

      But what exactly are his children entitled to? That will depend on whether he has a will, and how the will is worded. No 40-year-old child of independent means is automatically entitled to a share of an estate when there is a will. Your father can leave the estate to whomever he wishes (with some limitations).

      This is where the wording comes in. If the will says, "leave my estate to my children, A and B", then it will go to A and B and nobody else. But if it simply says "leave my estate to my children", then you have the same rights as the others because you are his child.

      Similarly, if your father dies without a will, you are entitled to the same share that his other children would receive.

      You may need a DNA test to prove the relationship, as you have mentioned, unless your father has acknowledged your paternity. I'm not an expert in family law so I'm not the right person to comment on how to get that test done.

      I don't know whether starting a lawsuit is going to make you feel any better, but please make sure you actually have a strong case before you throw your time and money at it, or you'll be even more upset if you lose.

      hang in there,
      Lynne

      Delete

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