Anticipating the Secret Scion in Estate Planning

Get proactive about your estate planning.

It’s a tale as old as time, or at least the days of Game of Thrones: A secret scion born out of wedlock dramatically comes forward when a parent dies to claim the throne, or at least a sizeable chunk of the inheritance.

The prevalence of easy, at-home DNA testing and a new probate code enacted this year make the scenario even more likely. Now, a child who might be unknown to a surviving spouse and children — and who may even have been unknown to the deceased parent — can potentially claim a stake in the inheritance by presenting evidence of a DNA match with the relevant parent as long as that DNA was acquired during the parent’s lifetime.

As an estate litigator, I have a few suggestions for addressing and being proactive about this issue in your estate planning.

First, it’s fair to point out that this seemingly radical change to California Probate Code §6453(b)(3) is but the latest step in a legal trend that has evolved over the past several decades, reflecting the overall familiarity and utilization of DNA evidence in various areas of the law.

[To read more of Scott Rahn’s thought leadership click here]

For many years, California (like many other jurisdictions) treated inheritance rights differently for legitimate and illegitimate children. Prior to the 1970s, social mores guided public policies that encouraged marriage and discouraged having children outside of marriage. Legislatures also assumed that if the parent and child had no relationship during the parent’s life and if the parent never acknowledged the child, the parent therefore would not want the child to receive anything from the estate.

In 1982, the state embraced a more progressive and literal interpretation. For the first time, the legislature recognized that a child is a child, regardless of whether his or her parents were ever married.

Still, an unknown child faced the uphill battle of proving that the deceased parent held them out as his/her own or, if the parent did not acknowledge the child, of proving that it was impossible for the parent to have done so. Those tests remain the standard, although now with the use of DNA evidence.

DNA didn’t really come onto the scene until 1989 with the landmark case of Sanders, in which the contested inheritor attempted to prove paternity and a right to inherit by asking the court to order DNA tests from the recognized adult children. The court declined because the legislature had not sanctioned the use of DNA evidence in establishing paternity. It would take another 30 years, along with the O.J. Simpson trial and countless episodes of Law & Order, before the state would officially recognize the legitimacy of DNA evidence in probate.

Now that anyone can do a DNA test at home, the rules of engagement have been dragged into the 21st century. As part of the standard tests highlighted above, the new rule allows courts to consider DNA evidence acquired during the parent’s lifetime. Importantly, to avoid the disruption that might arise if potential heirs were allowed to seek emergency orders to stop funeral services or exhume the deceased parent for DNA collection, the revision limits the ability to use DNA evidence to prove paternity in only the very limited circumstances where the DNA was obtained during the parent’s lifetime, although this is something I see developing further over time.

So, if you’re at the estate-planning stage and haven’t done an at-home DNA test, should you? It can cut both ways. If you’re sure you have no surprise children, the DNA test will quickly debunk any bogus claims.

Conversely, if you think there may be unknown children and you don’t want to leave them anything, you can just say so in your will. Remember, whether a child was raised as yours or is someone you’ve never heard of, you decide who inherits your assets. Just be sure to be absolutely clear about your intentions. Most of these problems arise because, during their lifetime, the parent was secretive about their suspicions regarding additional children, and therefore never clarified their intentions in their will or trust.

[For more on RMO Lawyers’s approach click here]

If you want to add this clarity to your will, point out to your family that you are simply trying to make your will and trust as specific as possible to include and exclude the right people. After all, what if, between the time your will and trust were last updated and your death, your daughter had two children? Do you want the grandchildren excluded from your estate plan? (This is why you should update your will with the birth of each new child or grandchild, and any other significant life event.) What if your son has a child that neither he nor you would want to inherit any assets?

A relatively bulletproof estate plan names every child and grandchild born during your lifetime whom you would want to share in your inheritance, and states, “I disinherit all other heirs, known and unknown.” It’s the best way to protect the kingdom and to ensure your legacy is shared only with those you wish.