The short answer to this question is, thank goodness, ‘yes’. We explain why below, as the question throws up more issues than you might think.
What does “illegitimate child” mean?
Although the term “illegitimate” is seen by many as an outdated term, there is a need to clarify how this status can impact rules regarding inheritance.
An “illegitimate child” means a child who is born to parents who are not legally married or who have entered into a civil partnership.
A “legitimate child” is a child born to parents who are married or who have entered into a civil partnership.
A “legitimated child” is a child who is born to parents who are not married or civilly partnered at the time of the birth but who subsequently marry/enter into a civil partnership.
Presumption of legitimacy
There is a presumption that a child born to a woman is the child of her husband or civil partner.
What happens if a parent dies without leaving a will?
If a parent dies without leaving a will then their assets will pass under the intestacy rules.
In very general terms, the intestacy rules provide that the deceased estate, up to a limit, will pass to any surviving spouse or civil partner.
If the estate is valued in excess of £322,000 then half of any remaining estate above that limit would then pass to the deceased’s children.
If there is no living spouse or civil partner at the time of the deceased’s death, then the entire estate is divided equally between the deceased’s children.
For the purposes of the intestacy rules, there is no distinction between legitimate and illegitimate children under the provisions of the Family Law Reform Act 1987. Illegitimate children can inherit in circumstances where their parent does not prepare a will.
However, the key difference for ‘legitimate’ children is that their parents are married or civilly partnered, and as such, a surviving spouse or civil partner will take precedence before the child takes their share.
An unmarried surviving parent will not automatically inherit unless a will has been made, and so the estate, under the intestacy rules, would pass straight to the child.
Making a will is crucial for unmarried partners, whether parents or not. See our article on the inheritance rights of unmarried couples.
What happens if the parent leaves a will?
A parent can leave a will specifically stating that their child shall inherit. If the will specifies that the estate is left to the deceased’s “children” then, subject to any contrary intention, references to an individual’s children will include their illegitimate children.
What happens if the deceased has prepared a will that excludes an illegitimate child?
If a parent has prepared a will excluding illegitimate children, then under the Inheritance Act the child can challenge the estate and make a claim for additional financial provision to be made available for them. As there is no distinction between legitimate and illegitimate children under the Inheritance Act, illegitimate children are eligible claimants to bring a claim if they have been specifically excluded from a will.
Conclusion
If you wish to claim for financial provision it is essential that you act without delay, as specific limitation issues can arise in relation to inheritance disputes. With the appropriate legal strategy, advice and expert input, there are good options available to parties to enable them to avoid court proceedings and deal with matters by consent.
