Chapter 2 Flashcards
(5) “Child” includes an individual entitled to take as a child under this Code by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant. . . .
(9) “Descendant” of an individual means all of his [or her] descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in this Code.
(24) “Issue” of an individual means descendant.
definition of “child” is limited to a person one step below the decedent, while “descendant” is a multi-generational classification that includes children, grandchildren, great-grandchildren, etc.
To inherit from a parent as his or her child, a person must establish a parent-child relationship. A child who is genetically related to the parent, who is legally adopted by the parent, or whose parent has indicated his consent to be a parent to a child conceived with reproductive technology, p. 51even if there is no genetic connection, can now establish such a parent-child relationship.
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UPC §2-103. Share of Heirs Other than Surviving Spouse.
Any part of the intestate estate not passing to a decedent’s surviving spouse under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:
(1) to the decedent’s descendants by representation; . . . [Emphasis added.]
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UPC §2-705. Class Gifts Construed to Accord with Intestate Succession; Exceptions.
(b) [Terms of Relationship.] A class gift [in a governing instrument] that uses a term of relationship to identify the class members [such as “my children” or “my descendants”] includes [those children or descendants determined] in accordance with the rules for intestate succession regarding parent-child relationships. [Emphasis added.]
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UPA §201. Establishment of Parent-Child Relationship.
(a) The mother-child relationship is established between a woman and a child by:
(1) the woman’s having given birth to the child; [or]
(2) an adjudication of the woman’s maternity; [or]
(3) adoption of the child by the woman[; or
(4) an adjudication confirming the woman as a parent of a child born to a gestational mother if the agreement was validated under [Article] 8 or is enforceable under other law].
(b) The father-child relationship is established between a man and a child by:
(1) an unrebutted presumption of the man’s paternity of the child under Section 204;
p. 53(2) an effective acknowledgment of paternity by the man under [Article] 3, unless the acknowledgment has been rescinded or successfully challenged;
(3) an adjudication of the man’s paternity;
(4) adoption of the child by the man; [or]
(5) the man’s having consented to assisted reproduction by a woman under [Article] 7 which resulted in the birth of the child[; or
(6) an adjudication confirming the man as a parent of a child born to a gestational mother if the agreement was validated under [Article] 8 or is enforceable under other law].
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UPA §204. Presumption of Paternity.
(a) A man is presumed to be the father of a child if:
(1) he and the mother of the child are married to each other and the child is born during the marriage;
(2) he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce[, or after a decree of separation];
(3) before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce[, or after a decree of separation]; . . .
(b) A presumption of paternity established under this section may be rebutted only by adjudication under [Article] 6.
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The UPC itself does not specify the manner by which a nonmarital child may establish eligibility to inherit. It simply states that there is no difference in status between a marital and a nonmarital child for purposes of inheritance from his genetic parents. UPC §2-117.
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The UPA provides that nonmarital children may establish the paternity of the man from whom they are trying to inherit by (i) statutory presumptions; (ii) voluntary acknowledgment; and (iii) court proceedings, i.e., an adjudication. Under UPA §631(1), once a man is presumed to be the child’s father, has acknowledged himself to be the father, or has been adjudicated the father, then paternity “may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.
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UPA §204. Presumption of Paternity.
(a) A man is presumed to be the father of a child if: . . .
(4) after the birth of the child, he and the mother of the child married each other in apparent compliance with law, whether or not the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child, and:
(A) the assertion is in a record filed with [state agency maintaining birth records];
(B) he agreed to be and is named as the child’s father on the child’s birth certificate; or
(C) he promised in a record to support the child as his own; or
(5) for the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own.
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UPC §2-118. Adoptee and Adoptee’s Adoptive Parent or Parents.
(a) [Parent-Child Relationship Between Adoptee and Adoptive Parent or Parents.] A parent-child relationship exists between an adoptee and the adoptee’s adoptive parent or parents.
UPC §2-119. Adoptee and Adoptee’s Genetic Parents.
(a)[Parent-Child Relationship Between Adoptee and Genetic Parents.] Except as otherwise provided in subsections (b) through (e), a parent-child relationship does not exist between an adoptee and the adoptee’s genetic parents.
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UPC §2-119. Adoptee and Adoptee’s Genetic Parents.
(b) [Stepchild Adopted by Stepparent.] A parent-child relationship exists between an individual who is adopted by the spouse of either genetic parent and:
(1) the genetic parent whose spouse adopted the individual; and
(2) the other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent.
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UPC §2-120. Child Conceived by Assisted Reproduction Other than Child Born to Gestational Carrier.
(a) [Definitions.] In this section:
(1) “Birth mother” means a woman . . . who gives birth to a child of assisted reproduction. The term is not limited to a woman who is the child’s genetic mother.
(2) “Child of assisted reproduction” means a child conceived by means of assisted reproduction. . . .
(3) “Third-party donor” means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include:
(A) a husband who provides sperm, or a wife who provides eggs, that are used for assisted reproduction by the wife;
(B) the birth mother of a child of assisted reproduction; or
(C) an individual who has been determined under subsection (e) or (f) to have a parent-child relationship with a child of assisted reproduction.
(b) [Third-Party Donor.] A parent-child relationship does not exist between a child of assisted reproduction and a third-party donor.
(c) [Parent-Child Relationship with Birth Mother.] A parent-child relationship exists between a child of assisted reproduction and the child’s birth mother.
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For married men, if there is a third-party sperm donor, the presumption that the husband of the birth mother is the father of the child still applies unless there is clear and convincing evidence to the contrary. UPC §2-120(h)(1). If the man is divorced from the birth mother before placement of the eggs, sperm, or embryo, he is not the father unless he consented to be the parent if the assisted reproduction occurred after the divorce. UPC §2-120(i). In cases of unmarried men, UPC §2-120(f) provides that a parent is a person (other than the birth mother) who consented to the ART with the intent to be the other parent of the child. Consent is established if that person (i) signed a “record” indicating consent to become a parent either before or after the child’s birth; (ii) functioned as a parent within two years of the child’s birth; (iii) intended to function as a parent within two years of the child’s birth but could not do so because of death, incapacity, or other circumstances; or (iv) with respect to a posthumously conceived child, there is clear and convincing evidence that the individual intended to be the parent. UPC §2-120(f).
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As UPA §204(a) provides, the law has traditionally presumed that a child who is conceived before his father’s death and who is born within 300 days of that death will be a child of that father for purposes of inheritance.
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UPC §2-104(a)(2) provides that a child who is in gestation at the time of the parent’s death and who survives 120 hours after birth is eligible to inherit from that parent
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UPC §2-120(k) was added in 2008 to broaden the definition of “in gestation” to include ART children in utero not later than 36 months or born not later than 45 months after the parent’s death.
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UPC §1-201(5) provides that foster children and stepchildren are generally not included in the term “child” for purposes of intestacy or construction of wills and trusts. A foster child is a child who is unrelated to either a husband or a wife but for whom they provide care, typically as the result of a formal placement by a state social services agency. A stepchild is a spouse’s child from a prior marriage or relationship who was not legally adopted by the stepparent.
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When a parent uses terms like “child” or “issue” as part of a class gift in a will or other governing instrument, like a trust, UPC §2-705(b) provides that the term shall be interpreted using the same rules used to interpret those terms in the intestacy statutes.
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The UPC defines “functioning like a parent” to mean that the individual behaved “toward a child in a manner consistent with being the child’s parent and performing functions that are customarily performed by a parent, including fulfilling parental responsibilities toward the child, recognizing or holding out the child as the individual’s child, materially participating in the child’s upbringing, and residing with the child in the same household as a regular member of that household.” UPC §2-115(4).
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UPC §2-114. Parent Barred from Inheriting in Certain Circumstances.
(a) A parent is barred from inheriting from or through a child of the parent if:
(1) the parent’s parental rights were terminated and the parent-child relationship was not judicially reestablished; or
(2) the child died before reaching [18] years of age and there is clear and convincing evidence that immediately before the child’s death the parental rights of the parent could have been terminated under law of this state other than this [code] on the basis of nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent toward the child.
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In those states, couples can enter into a common law marriage by (i) living together; (ii) holding themselves out as married; and (iii) with the mutual intent to be married.
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a] putative spouse is a person who cohabited with the decedent in the good-faith but mistaken belief that he or she was married to the decedent. The strongest evidence of a claimant’s good-faith belief that he or she was married to the decedent is proof that they participated in a marriage ceremony.
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