When I conference with clients for their estate planning, I always need to know the clients’ family information. When asking men how many children they have, they sometimes joking respond, after citing their children’s names, with the phrase, “that I know of.” Of course, that statement is almost always intended to be a joke, but that joke sometimes proves true.
A year ago, the news was filled with the names of numerous people who claimed they were the sons and daughters of the music icon Prince, who had died weeks before without a will.
Women know their biological offspring in almost every circumstance, except in the cases of unintentional in vitro fertilization. However, as we all know, men can biologically parent children without knowing the existence or identities of those children.
This becomes a legal issue when a man, like Prince, dies without a will. Under Ohio law, a man’s biological children may have rights to inherit from that deceased man. However, a man’s biological children are not always the same as the man’s legal heirs.
In Ohio, if a man dies without a will but with children, the children may have rights to inherit from the man’s estate. However, those biological offspring will only inherit through Ohio’s “no will inheritance structure” (called “intestacy”) if the deceased man demonstrated awareness of the child’s or children’s existence before the man died.
Generally, if a child desires to inherit from a deceased biological father who does not have a will that provides for distribution to that child, the child must demonstrate that the deceased biological father had some awareness of parentage through one of five methods. At least one of the methods is required to be satisfied even if there is no question of biological parentage and even if the father was named as the father on the child’s birth certificate.
First, the child can inherit if the father married the mother at some point in time before or after the child’s birth.
Second, the child can inherit from the deceased father through intestacy if the child was identified in a will signed by the deceased father, and the will has gaps in its distribution instructions such that the child would inherit under intestacy as to the items not specifically distributed through the will.
Third, the child can inherit from the deceased father if the father had adopted the child.
Fourth, the child can inherit from the deceased father if a declaration of parentage was properly filed and decided in a local probate court.
And, fifth, the child can inherit from the deceased father if the father named the child as his heir in a local probate court, which filing would not necessarily identify the child as a child of the deceased man.
The easiest way for men to ensure that there will not be unintended distributions to unknown or estranged biological offspring is to prepare, sign and ensure the presentation of proper wills that address a broad range of unintended circumstances, including unknown/estranged biological offspring.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.