North Carolina’s Archaic Laws on “Legitimacy”

While many are fortunate enough to create a Last Will and Testament during their life dictating the disposition of their estates, many individuals pass away unexpectedly or simply lack the resources, knowledge, or motivation to create one prior to death.  These individuals are referred to as Intestates and, for individuals who pass away as residents of North Carolina, the disposition of their estates is dictated by the North Carolina Intestate Succession Act.  The North Carolina Intestate Succession Act (Chapter 29 of the North Carolina General Statutes) provides the scheme by which property passes from a person who dies without a Will i.e. an “Intestate.”  When an Intestate dies without a surviving spouse, the lineal descendants are the first potential takers of the estate under this statutory scheme. 

I often consult with a child of an Intestate about the process of opening an estate and related issues such as who has priority to serve as Administrator as well as who is entitled to inherit from the Intestate.  My routine begins with, “unfortunately, North Carolina law is very archaic on this issue.”  Specifically, the law is archaic with respect to succession by “children born out of wedlock” as outlined in N.C.G.S. § 29-19.  The statute provides that a child born out of wedlock is entitled to take from the child’s mother and other maternal kindred.  However, N.C.G.S. § 29-19(b) provides that a child born out of wedlock shall only take from their father under limited circumstances.  The statutory text is as follows:

  1. (1) Any person who has been finally adjudged to be the father of the child pursuant to the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through 49-16;
  2. (2) Any person who has acknowledged himself during his own lifetime and the child’s lifetime to be the father of the child in a written instrument executed or acknowledged before a certifying officer named in G.S. 52-10(b) and filed during his own lifetime and the child’s lifetime in the office of the clerk of superior court of the county where either he or the child resides.
  3. (3) A person who died prior to or within one year after the birth of the child and who can be established to have been the father of the child by DNA testing.

If one or more of these circumstances is met, the child born out of wedlock must provide written notice to the personal representative of the estate of the Intestate within 6 months of the first publication or posting of the general notice to creditors. 

Because of this outdated statute, I am forced to ask prospective clients who consult with me about administering the estate of their father who dies intestate whether their father was married to, or ever became married to, the child’s mother.  I am then forced to potentially break bad news that, if such is not the case, the child may not be entitled to inherit from their father regardless of what evidence they have that the Intestate was, in fact, their father.  The root of N.C.G.S. § 29-19(b) is based in North Carolina’s laws of legitimacy.  Essentially, North Carolina treats children born out of wedlock as “illegitimate” and outlines the process of legitimacy in Chapter 49 of the North Carolina General Statutes.  While referring to any person as “illegitimate” in 2023 seems out of place, archaic, intolerant, and patriarchal, this is the law in North Carolina.    

While the purpose of this blog is to explain the law as it is, I feel compelled to explain why the law is flawed and potentially unconstitutional.  I understand the policy of establishing paternity and it certainly has many important implications such as obligation to pay child support when such is not voluntary as well as intestate succession rights.  However, the mother’s marital status seems irrelevant.   I see as many or more instances in my practice where the paternity of a child born to a married couple is at issue.   But in North Carolina, if your mother is married, your mother’s husband is presumed to be your father even while, factually, we know this is not necessarily the case.  

To complicate matters, the statutory requirements are not always verified by attorneys or the Clerks of Court who oversee estate administration, so many intestate estates are administered based upon the children listed in the obituary or the fact that the Intestate is on the birth certificate of the child, neither of which are sufficient under the statute.  While the result may be good, it leaves these estates open to challenges and title issues.   

Now some may argue that the father should have complied with the statute or created a Last Will and Testament, but that is of little consolation to the adult child of an Intestate who has no recourse.  In many cases, an unmarried mother and father believe the birth certificate or an affidavit of parentage is sufficient.  The father has often voluntarily supported the child, the parents never marry and they are unaware of the need to take further action and file an acknowledgement of paternity pursuant to N.C.G.S. § 29-19(b)(2). The constitutional issue that arises is that everyone born to a married couple has two intestate chains while children of “unwed fathers” (I can hear John Prine playing in my head) only have one unless they were legitimated per the statute, or they were legally adopted by a second parent, neither of which is in their control.  In my opinion, this is an unconstitutional deprivation of property rights to the child of the Intestate. The adult child needs recourse to prove paternity or they are being deprived of property without due process of law.    

All of that aside, the law stands as it is until we can successfully lobby for legislative change, or a lawsuit successfully invalidates the statute. Until then, it is my effort and duty to inform the public, and especially unwed fathers, of the steps to avoid the bad outcomes this law creates and ensure their child or children inherit from their estate.  One of the simplest solutions for unwed fathers is to see an attorney about creating a Last Will and Testament.  The process is easier and more affordable than you may imagine.

Estate Planning & Admin