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Can Paternity Be Established After the Death of a Child in Illinois?

Updated on
November 6, 2019
Article written by
Attorney Kevin O'Flaherty

In this article, we answer the question “can paternity be established after the death of a child in Illinois?” and “can a father who did not establish paternity inherit from a child? We then explain intestacy laws in Illinois, and answer the question “what qualifies as an eligible parent for a decedent born out of wedlock?”

A reader asked the following question:  If a father never acknowledges paternity on the birth certificate of a child or paid child support, spent time or money on child and child becomes an adult and dies, will the father become a beneficiary in the event of death of adult/child?  The child does not have a will in place.

The answer to this question depends on the specific circumstances of the case.  When a person dies without a will, the deceased will have their assets divided in accordance with Illinois “Intestacy Laws.”  In this particular case, the distribution of assets would be allocated as follows:

  • If the deceased is survived by a spouse and descendants of the decedent: ½ of the estate will go to the surviving spouse, and the other ½ to the decedent’s descendants;
  • If the deceased is survived by a descendant of the decedent but no spouse, the entire estate goes to the descendants of the deceased;
  • If the deceased is survived by a spouse and no descendants, the entire estate goes to the surviving spouse;
  • If there is no surviving spouse or descendant but the eligible parent or a descendant of the eligible parent of the decedent: the entire estate to the eligible parent and the eligible parent's descendants, allowing 1/2 to the eligible parent and 1/2 to the eligible parent's descendants

For more information, check out our article entitled How is an Illinois Estate Divided Without a Will? | Illinois Intestacy Laws.

What Qualifies as an Eligible Parent for a Decedent Born Out of Wedlock?

If the father did not establish paternity before the child dies or been married to the mother of the child, then he has no legal rights or claims as a beneficiary.  For the father to be considered an eligible parent, he must have:

  • Acknowledged the decedent as the parent’s child;
  • Established a parental relationship with the decedent; and
  • Supported the decedent as the parent’s child.

Eligible parents that are in arrears of more than one year’s child support can only qualify as a beneficiary if there is any of the decedent’s estate left to divide after the arrears are paid.  Furthermore, a court of competent jurisdiction must assess the impact the unpaid child support had on the deceased and approve a reduced benefit based on the court’s findings.

For a detailed accounting of father’s rights, take a look at our article entitled Illinois Paternity Law Explained.


Can Paternity Be Established After the Death of a Child in Illinois?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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