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Do Biological Children Have Rights to Inheritance in Wisconsin?

Attorney Thomas B. Burton answers the following question on his popular series titled Real Attorney Reacts regarding estate planning: "Do Biological Children Have Rights to Inheritance in Wisconsin?"

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Welcome back to Real Attorney Reacts. I'm Attorney Thomas Burton and this is the series where we look at real reader questions that have been submitted and then I analyze them under Wisconsin law.

So today we have another question submitted to The Moneyist columnist. The title is "I do not trust my half siblings. My biological father, 87, lives in my hometown. Do I have rights to an inheritance from him?"

So let's get right into it here.

"I recently found out my biological father is a man whom I grew up around in my hometown. His children saw the connection as well and have and I have been contacted by them. He is still alive but he is 87 and his wife has no idea about this. The oldest son recently told him about me but I do not trust my new half siblings. Do I have rights to inheritance from this man? What should I do?" Signed - The other son.

So as a reminder, The Moneyist columnist takes these questions each month and then answers them in written form and what I do is look at them, be the ones I find instructive for estate planning purposes and many have to do with estate planning and legal issues and then I analyze them for you here, under Wisconsin law.

So the columnist says, "Dear other son, what you decide to do next depends on what you want. Getting to know him and proving he is your father could also go hand in hand. Would you like to have a relationship with this man and get to know him? Is it important for you to know where you came from and the circumstances surrounding your birth and find out whether your biological father knew of your existence?"

So that's, it's a good question, what do you want out of this? Do you want to get to know the person or are you just thinking about the inheritance?

"These are questions that may keep you awake at night or at least leave you wondering about the kind of man your father is rather than or indeed in addition to his net worth. Why allow other people to come between you and your biological father? You are only an outsider as long as you act like one, time unfortunately is not on your side. Non-marital biological children are entitled to inheritance as long as they are not expressly disinherited in their parents will but they must first prove that they are direct beneficiaries either through DNA evidence, birth certificates and or openly and notoriously acknowledge paternity. This can also be done via text message, photographs and testimony from friends". This is what the columnist is telling him. Regina Kiperman of RK Law in a state law firm in New York says, a non-marital child can inherit from their father, if the father during his lifetime, acknowledge paternity by signing a document which meets certain requirements set forth in social services law or if there's been a court-ordered determination fraternity during the father's lifetime. So that's New York law, she's sighting there and this person didn't say where they live but they're referencing New York, so maybe they know he lives in New York. I'm not sure. Sometimes they say where they live but this one, I don't believe this says the other son, okay, other ways of establishing paternity as outlined by Kiperman include paternity has been established by clear and convincing evidence such as genetic marker, a DNA test for example or evidence that the father openly and notoriously acknowledge the child as his own, for example, obtain a letter from one of the father's friends that confirmed that the father declared the person to be his daughter. Given the often short statute of limitations for contesting wills, it pays to be proactive. The law firm Antonelli & Antonelli had a client who filed objections to his sister's administration petition because she failed to include him in the will and formally notify him of her application. In that case, the father had claimed his non-marital son as a dependent on his tax returns.

So The Moneyist says, "I hope you find the answers in satisfaction you seek. There may, for instance, be lifelong sibling relationships waiting for you in addition to an inheritance. If they have reached out to of their own accord, it seems unlikely, they are set on thwarting a relationship with your biological father or indeed, any inheritance that could come from acknowledging such a relationship".

So he did a good job laying out the factors in general. I pulled up Wisconsin statute 852.05 - status of a child born to unmarried parents for purposes of intestate succession. So let's run through it real quick here - "A child born to unmarried parents or the child's issue", 'issue' meaning their children, "is treated in the same manner as a child or the issue of a child born to married parents with respect to intestate succession from and through the child's mother and from and through the child's father, if any of the following applies". So that's saying they're treated the same, a biological child is treated the same as a child from a marriage provided any of the following applies -

A. the father has been adjudicated to be the father in a paternity proceeding under chapter 767 or by final order or judgment of a court of competent jurisdiction in another state. B. the father has admitted an open court that he is the father. C. the father has acknowledged himself to be the father in writing signed by him.

So there's the three factors in Wisconsin, if you have it in writing, signed by the father, he's acknowledged it in open court or adjudicated in a paternity proceeding under chapter 767, then a child of that father would have the same rights as a child born in a marriage with respect to intestate succession. So intestate succession as a reminder is just what happens under the law, if you have no will or trust in place. So if you die without a will or trust then it would pass to your next living relatives under intestate succession and that's determined here. So a father could still create a will that doesn't acknowledge a biological child or cuts them out of the estate plan or I would suggest creating a trust, if you have a child that you don't want to leave in your estate plan because you can keep a trust private after death, where the will becomes public following your death and that heir would likely still be entitled to notice under the probate statute.

But in terms of getting that acknowledgement, the statute 852.05 lays out the three ways to prove paternity. Then sub 2 says, property of a child born to unmarried parents passes in accordance with 852.01, except that the father or father's kindred can inherit only if the father has been adjudicated to be the father in a paternity proceeding under chapter 767 or by final order or judgment of a court of competent jurisdiction, in another state or has been determined to be the father, under chapter 767.804 or 767.805 or substantially similar law of another state.

Excuse me, so that would be if it's the child's property, can it go to a biological father, sort of the reverse and it's a similar method there of proving paternity.

Sub three, this section does not apply to a child who becomes a marital child by the subsequent marriage of the child's parents under 767.803.

Sub B, the status of a child born to unmarried parent who is legally adopted is governed by 854.20 and in Wisconsin, a legally adopted child generally has the same rights to inheritance as a biological child but you can check out 854.20 for more about that and then finally Sub 4, section 895.01 Sub 1, applies to paternity proceedings under chapter 767.

Then under the statute is the case law, that's developed since adoption, for example, here it says, one claiming to be a non-marital child under Sub one must first prove that status and overcome any presumption of paternity in effect. In matter of a state of Schneider 150 west 2d 286 circuit court, court of appeals 1989.

So that was a case revolving the statute and in Wisconsin, we list them, it's helpful under the statutes that have developed courts seeking to interpret that statute since it was adopted by the legislature.

Just as a reminder, to inherit as a biological child of outside of a marriage, it's either A. the father has been adjudicated to be the father in a paternity proceeding under chapter 767 or by final order of a court of competent jurisdiction in another state, B. the father has admitted an open court that he is the father or C. the father has acknowledged himself to be the father in writing signed by him.

If you fall into that situation where you have a child with the father and you don't have any of that and you're concerned about what would happen to your child, if the father passed, I would recommend you try to get an acknowledgement of paternity, in one of those methods. The best option would be the father creates a will that explicitly includes your child or a trust that explicitly includes them or likely both but if you can't get that, then think about these other methods of getting the paternity proved before anything should happen to the father.

Now the rest of this column, as The Moneyist columnist points out is up to this child to decide, do they want to try to have a relationship with this 87-year-old man and that's not an answer, I can give you a legal answer too. But for my other viewers watching, I thought this question was particularly interesting having to do with the status of non, of a biological child that isn't of a marriage in Wisconsin and again check out 852.05 - status of a child born to unmarried parents for purposes of intestate succession, Google that, it'll take you right to the statute, you can read through exactly what we just discussed.

So thanks for watching. I hope this video has been helpful to you and if it has please consider giving it a LIKE so that others can see and benefit from this information as well.

Thanks for watching and we'll see you next time.

© 2022 Burton Law LLC. All Rights Reserved. Transcript and captions provided for ease of access for the hearing impaired. For questions about this topic, or to suggest a topic for a future blog post, please contact the office.


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