Wills & Heirs

Unexpected Heirs

The death of a loved one or close friend is a traumatic experience. But can become even more traumatic to a family when circumstances arise that are not addressed in the decedent’s will.

On December 20, 2006, a petition was filed in district court for the admission of a handwritten will of the decedent. The handwritten will named the decedent’s heirs to be his wife and two daughters.

Nearly a year later, a man filed for a share of the estate, claiming that he was an unintentionally-omitted child of the decedent, because he was a biological son. Following this allegation, DNA testing was conducted, with the test results determining he truly was the son of decedent. The court then declared the man to be a pretermitted heir and was entitled to his statutory share of the estate. For a variety of reasons, the final judgment of the probate court was appealed.

As part of this appeal, the court took the opportunity to discuss the history of how Oklahoma has handled children born out of wedlock since statehood. The first statute on the subject was passed by the territorial legislature in 1890 and affirmed by the legislature in 1910. It allowed for an “illegitimate” child to be an heir, if the father acknowledges himself to be the father and inherits in the same manner as if he had been born in wedlock. As to the mother, such a child in all cases was an heir of his mother.

In 1977, the Oklahoma legislature amended this statute. While a child born out of wedlock remained an heir, the determination of heirship by the father changed. A child would be in the same situation as if he had been born in wedlock if the father acknowledged him in writing, the father and mother subsequently married and the father acknowledged him or adopted him, the father publicly acknowledged him, with the consent of his wife and brought the child into his family or, lastly, the father was judicially determined to be the father.

In this decision, the court determined that The Uniform Parentage Act of 2006 applied to all parental determinations, even those in a probate action. Under this current act, all children, whether born to parents who are married or not are treated the same. Paternity testing can be used for all purposes to establish a parent-child relationship and that such testing includes the testing of deceased individuals.

This case reminds us that we need to include all of our children when drafting an effective will. It should not exclude those children who were born prior to a marriage or children who were given up for adoption.

Legal Strategy