Archive

• A Parent’s Right to Inherit Intestate from a Child

  This entry was contributed by Meredith Smith on June 12, 2016 at 4:01 pm and is filed under Estates.

  A. The Statute

  When a person dies without a will, the person dies intestate and the person’s property is distributed in accordance with the Intestate Succession Act (the “Act”) found in Chapter 29 of the North Carolina General Statutes.  The Act states that if a person dies intestate without a spouse or lineal descendants (meaning children, grandchildren, etc.), the person’s parents are entitled to take equal shares of the person’s estate if both parents are alive.  G.S. 29-2(4); G.S. 29-15(3).  If only one parent is alive, then that surviving parent takes the entirety of the intestate estate. G.S. 29-15(3).

  The parental right to inherit via intestate succession from a child is not an unqualified right. Under G.S. 31A-2, a parent who willfully abandons the care and maintenance of his or her child shall lose all rights to intestate succession in any part of the child’s estate. This bar includes any recovery from a wrongful death action because, pursuant to G.S. 28A-18-2(a), wrongful death proceeds are disposed of as provided in the Act, even though such assets pass outside of the estate.

  Although a parent may have willfully abandoned a child, the parent may still inherit from a child if the parent is able to show an exception to the bar applies.  The two exceptions listed in the statute are if the abandoning parent:

  1. Resumed care and maintenance at least one year prior to the death of the child and continued the same until the child’s death; or
  2. Was deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent has substantially complied with all orders of the court requiring contribution to the support of the child. G.S. 31A-2(1) and (2).

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• Legitimation versus Paternity: What’s the Difference?

  This entry was contributed by Sara DePasquale on March 23, 2016 at 9:59 am and is filed under Child Welfare Law.

  *This post was updated on 10/24/16 to add citations for district court jurisdiction of paternity actions

  Earlier this month, my colleague, Meredith Smith, posted about Intestate Succession Rights and Children Born Out of Wedlock. Her post was prompted by In re Estate of Williams, ___ N.C. App. ___ (March 1, 2016), which addressed the application of G.S. 29-19(b) when determining whether the decedent’s child was an heir entitled to intestate succession. What caught my attention in the opinion were excerpts from both the orders of the clerk and the superior court  that referred to the process of legitimating a child pursuant to G.S. 29-19(b)(1) and (3). However, G.S. 29-19(b) addresses paternity, not legitimation. Legitimation for purposes of intestate succession is addressed in G.S. 29-18 (father and mother) and G.S. 29-19(a) (mother). So what is the difference? Continue Reading

• Intestate Succession Rights and Children Born Out of Wedlock

  This entry was contributed by Meredith Smith on March 4, 2016 at 2:25 pm and is filed under Estates.

  A 21-year old unmarried man dies without a will. An application for letters of administration is filed with the clerk of superior court by his mother and father. The only persons identified on the application as entitled to share in the decedent’s estate are his mother and father. No spouse or child is listed. No property is listed on the preliminary inventory included in the application as property of the estate or property that may be added to the estate to pay claims. The only other property identified is a potential claim from wrongful death under G.S. 28A-18-2. Based upon the application and an oath/affirmation from both parents, the clerk of superior court enters an order authorizing the issuance of letters and issues letters of administration to the parents of the decedent.

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