house-918602_1280Everybody knows that children inherit from their parents. However, who is a child in the eyes of the law? The law’s definition of “child” has changed over the years, and continues to change. If your child is not considered such by law, they will not inherit anything if you die without a Will in Utah. 

Historically, children of married parents could inherit from their parents, and the parents from the children. Children born out of wedlock could not inherit from their parents, neither their parents from them. As time passed, legislatures realized that this system often punished children born into a situation that they could not control, so the laws changed accordingly. Today, parentage is further complicated through lower marriage rates, adoption, surrogacy, fertility treatments, and terminations of parental rights. As the family makeup changes according to culture and technology, so does the law’s definition of parentage.

A complete discussion of all of the nuances of parentage laws in Utah would be too lengthy for this blog post, but more detailed information can be found in the Utah code and in family law publications. To summarize, Utah’s Uniform Parentage Act outlines the different ways that a parent can be considered a legal parent in the state of Utah and therefore a parent for inheritance purposes. For women, these include:

having given birth to the child (excepting gestational agreements);

a court decision declaring her the parent;

an adoption; or

a court decision confirming her as a parent as part of a valid gestational agreement.

For men, paternity is generally presumed if a child is born to his wife during his marriage or if the birth occurred within 300 days (10 months) of the termination of the marriage. If paternity cannot be presumed, it can be established by:

a declaration of paternity;

a court decision declaring him the parent;

an adoption;

consent to assisted reproduction; or

a court decision confirming him as a parent as part of a valid gestational agreement.

There are two exceptions to inheritance after establishing parentage. The first exception states that an adopted child is not considered the child of its biological parents for inheritance purposes. This is because the child has its adoptive parents. This rule does not apply in cases where a stepparent becomes an adoptive parent, and the stepparent is married to a biological parent, in which case the spouse would remain a parent for adoption purposes.

Example: Jim and Jane are married. Jane has a son, Arthur, from a previous marriage to Chuck. Jim adopts Arthur. For inheritance purposes, Jim and Jane are now Arthur’s parents. Chuck has no inheritance relationship to Arthur.

The second exception is a one-way exception, only affecting the right of a child’s family to inherit from the child, and not affecting the child’s right to inherit from the family. This exception prohibits a child’s family from inheriting from a child if the child’s family has refused to support the child or has not treated the child as a natural parent would.

Example: Jane is a single mother. Her partner, Chuck, is the father of her son, Arthur. Chuck abandoned Jane and Arthur and refuses to support Arthur in any way. If Chuck dies, Arthur can inherit from him if he can establish Chuck’s paternity. However, Chuck cannot inherit from Arthur if Arthur dies, because Chuck refused to support him and did not treat him as a natural parent would.

If you or a loved one do not like the way the law treats your family’s composition, you can always modify the law’s default rules with a Will or Trust. Contact an estate planning attorney if you want to make sure your wishes are carried out. 

Join us next time for information about Wills and how they can affect your estate plan.

 

 

Adapted from Chapter 2 of Mr. Melling’s book: The Utah Uniform Probate Code: A Quick-Reference Guide for Practitioners and Students