Anticipating the Secret Scion in Estate Planning

Get proactive about your estate planning.

(Scott Rahn was recently featured on CSQ.com) — 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.

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…

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