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Who Gets What? Inheritance Involving Illegitimate Children Explained

Article written by Attorney Kevin O'Flaherty
Updated on
June 17, 2020

In this article, we explain how intestate inheritance works when illegitimate children are involved. We will answer the following questions:

  • How is the legitimization of a child determined in Illinois?
  • What are the rules of descent and distribution for intestate inheritance in Illinois?
  • Who inherits what in the death of an illegitimate child in Illinois?
  • What rights to inheritance does an illegitimate child have in Illinois?

How Is the Legitimization of a Child Determined In Illinois?

The Illinois Probate Act describes a “person who was born out of wedlock whose parents intermarry and who is acknowledged by the father as the father’s child is the lawful child of the father.” What this means is that for the sake of inheritance laws in Illinois, a child who is proven to be that of the father’s will be treated the same as a legitimate child. The methods for proving and/or acknowledging paternity in Illinois are numerous and outside the scope of this article. For a more in-depth look into Illinois paternity law check out our article Illinois Paternity Law Explained.

What are the rules of descent and distribution for intestate inheritance in Illinois?

When someone does without a will their inheritance status is referred to as “intestate.” The Illinois Probate Act provides statutes governing intestacy laws that determine who gets what from a decedent’s estate in the absence of a will or trust. As a reminder, intestate laws apply only to probate property. Probate property is distributed by a court process and includes assets owned solely by the deceased individual with no designated beneficiary, such as personal property, bank accounts, and investments. Items that pass through probate and straight to named beneficiaries typically include life insurance policies, payable on death accounts, retirement accounts, and property held in joint tenancy. In Illinois the intestate laws are such:

  1. If a deceased person is survived by a spouse and one or more descendants, half of the probate estate goes to the spouse and the other half to the descendants.
  2. If a deceased person’s spouse is dead but one or more descendants lives, all of the probate estate goes to the descendant(s).
  3. If there is a surviving spouse but no descendants, all of the probate estate goes to the spouse.
  4. If there is no surviving spouse or descendant, the probate estate goes to the parents and siblings of the decedent in equal shares. If one of the parents is deceased the other parent will take a double share. If the sibling is deceased but has descendants, those descendants will split half of the probate estate.
  5. If all of the above are deceased or did not come to exist then the probate estate goes to the grandparents in equal shares, double if one grandparent is deceased, or to the grandparent’s descendants and/or survivors of them.
  6. If there are no living direct biological or by marriage relatives the decedent’s estate passes to the “nearest kindred” by equal degree. This can be a complex process involving tracking down any potential descendants of the decedent's great grandparents, and if none exist using a system of evaluating the degrees of familial separation between the decedent and the nearest kindred.
  7. If none of the above can be established the estate goes to the state of Illinois.

Who Inherits What in the Death of an Illegitimate Child in Illinois?

The probate act refers to the parents of the illegitimate child as “eligible parents.” Three factors must be considered when determining an eligible parent under the Illinois Probate Act:

  1. The parent must have acknowledged the decedent as his or her child during the child’s lifetime;
  2. Made a good faith attempt to establish a parental relationship with the child; and
  3. Supported the decedent in a typical and customary way as a child.

If one or more of these factors was not met during the child’s lifetime or a good faith attempt was not made by the parent to develop a relationship with the child then the court may not consider the parent “eligible” under the Illinois Probate Act, effectively treating him or her as having predeceased the decedent and barring him or her from receiving any inheritance from the deceased illegitimate child.

If both parents are considered eligible under the Illinois Probate Act the intestate inheritance law in Illinois for the death of an illegitimate child is as follows:

  1. If there is no surviving spouse or descendant of the illegitimate child, the estate goes to the eligible parent(s). If the eligible parent(s) has surviving descendants the estate is split with one half going to the parent(s) and the other half going to the descendants.
  2. If the illegitimate child has no surviving spouse, descendant, eligible parent, or descendant of an eligible parent the estate will go to the grandparents of the eligible parent or the descendants of the grandparent. If none of these are living then the estate will go to the great-grandparents and so on according to the normal rules of the Illinois Probate Act mentioned above.
  3. If none of the above are living the estate goes to the nearest kindred as described above and if nearest kindred cannot be determined, the estate goes to the county or state of Illinois.

What Rights to Inheritance Does an Illegitimate Child Have In Illinois?

As of September 12th, 1978, an illegitimate child can inherit from both parents in the same fashion as a legitimate child. However, in order for the child to inherit from his or her father and paternal ancestors one of the following two conditions must be met:

  1. The father must have acknowledged paternity during his lifetime; or
  2. During the father’s lifetime or after his death a court must have ruled him to the father of the illegitimate child. This second condition can be proven a number of different ways in Illinois, for a more in-depth look check out Illinois Paternity Law Explained.

The statute of limitations that normally applies under the Illinois Parentage Act requiring paternity suits be brought against the alleged father within two years of the child reaching age 18 does not apply in probate proceedings. This means that paternity can be established anytime during a father’s lifetime and after his death during the probate proceedings to include an illegitimate child as legitimate under the Illinois Probate Act. This is especially important in reference to wills and trusts that list “children” as beneficiaries and not specific individuals.

If you have questions about paternity law, inheritance, or probate proceedings don’t hesitate to give us a call at 630-324-6666 and speak with one of our qualified family attorneys.

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