Illegitimate Child

An illegitimate child is a child who is born to parents who are not married to each other, or who is born “out of wedlock.” An illegitimate child may also be referred to as a “bastard,” or a “love child.” Perhaps one of the most famous illegitimate children in Hollywood was the love child born to actor and the former governor of California, Arnold Schwarzenegger. Schwarzenegger fathered a child with his housekeeper while he was married to his wife, Maria Shriver. To explore this concept, consider the following illegitimate child definition.

Definition of Illegitimate Child

Noun

  1. A child who is born to parents who are not married to each other.

Origin

1485-1495       Medieval Latin lēgitimātus

History of Legitimacy

The history of legitimacy relates to concerns regarding the issues of inheritance and citizenship. Men in particular wanted to be sure that a child was, in fact, theirs before bequeathing their property to the child. There is a Latin saying – “Mater semper certa est” – that just about sums it up. This saying translates to mean “The mother is always certain” (about whether or not the child is hers), while the father is not always entirely sure.

In 1626, British Justice Edward Coke came up with what was known as the “Four Seas Rule,” which held that, provided the husband was fertile, it could be typically assumed that a married woman’s child was her husband’s child as well. Of course, this presumption was not set in stone, though the courts typically ruled in its favor.

Also in England, the Marriage Act of 1753 required couples to be married in a ceremony that was both formal and public. However, that did not stop “secret” marriages from taking place. Children who were born of those marriages were still considered illegitimate, despite their parents being technically, legally married.

People who were born out of wedlock were often shunned. For example, an illegitimate child did not enjoy the same rights of inheritance, or even the same civil rights as others, depending on the society in which they lived. The United States and the United Kingdom in particular, especially up until the 1960s, held social stigmas toward extramarital births. Fathers of illegitimate children, however, did not suffer nearly the same level of criticism, or even legal responsibility for the child, due to, in part, society’s attitudes towards sex and the male gender.

Throughout the history of legitimacy, unwed mothers were forced to give their children up for adoption. Other families chose to have the grandparents raise the child, or other married relatives, who were said to be the siblings or cousins of the unwed mothers. In most modern jurisdictions, a child’s legitimacy as an heir can be amended under the civil law. For instance, while one law could perhaps strip a child of his formerly assumed legitimacy, another could make a formerly illegitimate child legitimate.

Such was the case if a child’s parents, who were previously unmarried, chose to marry within a certain period after the child was born (typically within the first year). If this happened, then the child’s birth could be retroactively made legitimate.

Modern Parental Responsibility

By the end of the 20th century, however, all 50 states in the U.S. had created laws that outlined parents’ responsibilities for their children, regardless of whether or not the parents were married to each other when the child was born. There are also laws in place that support both extramarital and adopted children insofar as their equal rights to inherit their parents’ property when the parents die. Even the term “illegitimate” has been updated to the less harsh “born out of wedlock” over the course of the history of legitimacy.

Social Parentage

Interestingly, in other parts of the world, particularly western Europe, social parentage is preferred over biological parentage. Here, a man can voluntarily recognize a child as his own, whether the child is biologically related to him or not, thus making the child legitimate. The biological father is not given any additional privileges that an adoptive father cannot also enjoy. Conversely, a mother can choose to refuse to recognize her own child in accordance with French law.

Because it has become much easier in recent years to get a divorce, the idea of illegitimacy has declined in popularity. In the past, parents were unable to marry each other if one of them was already married to someone else who refused to let their spouse out of the marriage. In those cases, the only way parents could marry and even attempt to legitimize their children was to wait for their spouses to die.

Inheritance Rights of an Illegitimate Child

Today, thankfully, the inheritance rights of an illegitimate child are not that different from the legal rights of children of married parents. When it comes to leaving property to someone upon the event of death, anyone can leave anything they want to whomever they want, as long as they leave their wishes in writing. Fathers especially do not need to sign a paternity statement or even raise a child in order to leave their children something in their wills.

However, if a parent is not biologically related to a child, and wants to leave that child property, then the parent must have a will or trust that specifically names that child, else the law could decide that the child is not entitled to anything at all. The inheritance rights of an illegitimate child may not be as thoroughly protected as the rights of inheritance of a child who was either born to married parents, or made legitimate thereafter.

As an example of an illegitimate child’s rights being disputed, some states in the U.S. allow an illegitimate child to fully inherit his mother’s property, but not the property of the unmarried father, if there is no will or trust naming the child. Even states that allow illegitimate children to claim their father’s property in the absence of a will or trust may actually limit the amount of time in which the children can make a claim to their father’s estate. In some states, if there is no will, a child can inherit the father’s property – if the father had either admitted paternity before his death, or if a court determined that he was, in fact, the child’s father.

Social Security and Other Benefits

In the past, Social Security regulations used to favor legitimate children of deceased, retired, or disabled fathers. Now, if a person’s parent becomes disabled or dies, that person may be entitled to receive income (such as Social Security or pension benefits), no matter whether the person was the biological or legal child of the parent.

Private benefits are just as lenient on the subject of the inheritance rights of an illegitimate child. If a father names his children as beneficiaries on his life insurance policy, for instance, then those children will receive the policy proceeds when the father dies, regardless of whether he was married to the children’s mother before he died.

However, just because legal rights of illegitimate children have improved over the years, it is risky for fathers to just assume that their children’s rights will be protected under the law. If fathers do not sign a paternity or parenthood statement the moment their children are born, then those children may eventually be denied federal, state, or private benefits later in life because there is no proof that the man was, in fact, their father.

Illegitimate Child Example in an Inheritance Rights Case

An example of an illegitimate child who prevailed at the Supreme Court level can be seen in the case of Trimble v. Gordon. This case is proof that if a father signs a paternity statement upon his child’s birth, then this document will normally be enough to guarantee that the children’s inheritance rights are fully protected, even if the father did not write up a will before his death.

Here, Deta Mona Trimble was the illegitimate daughter of Jessie Trimble and Sherman Gordon. Trimble lived with her unmarried parents from 1970 until 1974. In January of 1973, the Circuit Court of Cook County, Illinois had entered a paternity order that found Gordon to be Trimble’s father, and ordered him to pay $15 per week for her support. Gordon complied with the order and paid as directed. He also openly acknowledged Trimble as his daughter.

In 1974, Gordon was murdered, and had left no will. His estate consisted only of his car, which was worth about $2,500 at the time. Section 12 of the Illinois Probate Act allowed legitimate children to inherit the estates of both their parents. However, illegitimate children were only permitted to inherit from their mothers. As a result, Trimble was denied the right to inherit her father’s estate. She challenged Section 12 of the Illinois Probate Act the Illinois Supreme Court and lost, and so she took her case to the U.S. Supreme Court to be heard.

The Court was tasked with deciding whether or not Section 12 violated the Equal Protection Clause of the Fourteenth Amendment. Ultimately, the Court decided in a 5-4 decision that it was, indeed, unconstitutional. In addition to the other opinions the Court expressed on the matter, the Court ultimately found for Trimble due to the fact that Trimble would have likely inherited a significant portion of Trimble’s estate, had he actually written a will before his death.

Related Legal Terms and Issues

  • Estate – Everything comprising a person’s net worth, including land, personal property, and other assets.
  • Paternity – The state of being someone’s father.
  • Will – A legal document in which a person specifies who should receive his assets upon his death.

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