Illinois Probate Act 755 ILCS 5/2-2: Children Born out of Wedlock

A last will and testament is one of the most important estate planning documents. With a will the testator can leave clear instructions as to what is to happen with her (or his) estate upon her death. The testator can leave specific portions of her estate to relatives. She can also leave bequests to close friends and charitable organizations. In other words, the testator retains control over what happens to her property. In the absence of a will, the decedent has no control, and the distribution of a decedent’s estates can become complicated. In such a case the estate is distributed to the decedent’s heirs based on the rules of intestate succession. Included in these rules is what happens to a decedent’s property if the decedent is a child born out of wedlock. If you have questions about the fate of an estate because the decedent failed to make a will, discuss your concerns with an experienced Chicago intestate succession lawyer at the Law Offices of Stephen Bilkis & Associates. We are here to help.

When an individual pass away without leaving a will, the probate court will appoint an estate administrator who has the responsibility of collecting the decedent’s property and distributing it to the decedent’s heirs based on the intestacy rules in the Illinois Probate Act. In order words, instead of the decedent’s property going to relatives and friends of her choosing, it will go to relatives based on rules in the Probate Act.

As a skilled Chicago intestate succession lawyer will explain, if someone passes away without the will, that person’s surviving spouse would get the entire estate if the decedent did not have any children or descendants. If the decedent left children and a surviving spouse, then the spouse would get 50% of the estate and the children would get the other 50% in equal shares per stirpes. If the decedent left children, but no spouse, then the children would share equally in the estate.

In the absence of a surviving spouse, children, or descendants, then the Illinois Probate Act states that the estate would go to the decedent’s parents and siblings. However, as an intestate succession attorney in Chicago will explain, the situation becomes more complex if the decedent was born out of wedlock.

Sometimes when a child are born out of wedlock, one or both of the parents fails to take care of the child, provide financial support, or even acknowledge being the parent of the child. The Illinois Probate Act acknowledges that reality by providing special rules for when children are born out of wedlock so that in instances when the child predeceases a parent, a parent who never supported the child or acknowledged the child is not able to inherit the child’s estate.

Of course, if the decedent passed away leaving a surviving spouse, children, or grandchildren, they would be entitled to inherit first. However, the law provides that in the absence of a spouse, children, or grandchildren, parents and siblings are entitled to inherit. In the case of a child born out of wedlock, a parent must be deemed “eligible” to inherit. A parent would be deemed eligible to inherit only if:

• The parent acknowledged the child during the child’s lifetime
• The parent established a relationship with the child
• The parent supported the child

If the parent owed back child support, that parent may not be permitted to inherit, or may not be permitted to inherit a full portion of the child’s estate.

Furthermore, as an intestate succession attorney serving Chicago will explain, if neither parent is eligible to inherit, then under the child born out of wedlock provisions of the Illinois Probate Act, the estate administrator will treat the estate as if the in eligible parents of the decedent predeceased the decedent.

Intestacy can cause a variety of problems when it comes to distributing estate assets. The assets may end up going to people who the decedent would not have wanted to have them. They may be delays in distributing assets because the administrator has a difficult time finding heirs or because kinship must be proven. Estate litigation could develop because relatives are upset about how the estate is distributed. The best way to avoid these problems is to make a will and ensure that it is executed according to the requirements of Illinois law.

1. Descent and distribution: Illinois Probate Act, 755 ILCS 5/2-1
2. Posthumous child: Illinois Probate Act, 755 ILCS 5/2-3
3. Adopted child: Illinois Probate Act, 755 ILCS 5/2-4

Sec. 2-2. Children born out of wedlock. The intestate real and personal estate of a resident decedent who was a child born out of wedlock at the time of death and the intestate real estate in this State of a nonresident decedent who was a child born out of wedlock at the time of death, after all just claims against his estate are fully paid, descends and shall be distributed as provided in Section 2-1, subject to Section 2-6.5 of this Act, if both parents are eligible parents. As used in this Section, "eligible parent" means a parent of the decedent who, during the decedent's lifetime, acknowledged the decedent as the parent's child, established a parental relationship with the decedent, and supported the decedent as the parent's child. "Eligible parents" who are in arrears of in excess of one year's child support obligations shall not receive any property benefit or other interest of the decedent unless and until a court of competent jurisdiction makes a determination as to the effect on the deceased of the arrearage and allows a reduced benefit. In no event shall the reduction of the benefit or other interest be less than the amount of child support owed for the support of the decedent at the time of death. The court's considerations shall include but are not limited to the considerations in subsections (1) through (3) of Section 2-6.5 of this Act.

If neither parent is an eligible parent, the intestate real and personal estate of a resident decedent who was a child born out of wedlock at the time of death and the intestate real estate in this State of a nonresident decedent who was a child born out of wedlock at the time of death, after all just claims against his or her estate are fully paid, descends and shall be distributed as provided in Section 2-1, but the parents of the decedent shall be treated as having predeceased the decedent.

If only one parent is an eligible parent, the intestate real and personal estate of a resident decedent who was a child born out of wedlock at the time of death and the intestate real estate in this State of a nonresident decedent who was a child born out of wedlock at the time of death, after all just claims against his or her estate are fully paid, subject to Section 2-6.5 of this Act, descends and shall be distributed as follows:

(a) If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent's descendants per stirpes.

(b) If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent's descendants per stirpes.

(c) If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse.

(d) If there is no surviving spouse or descendant but the eligible parent or a descendant of the eligible parent of the decedent: the entire estate to the eligible parent and the eligible parent's descendants, allowing 1/2 to the eligible parent and 1/2 to the eligible parent's descendants per stirpes.

(e) If there is no surviving spouse, descendant, eligible parent, or descendant of the eligible parent of the decedent, but a grandparent on the eligible parent's side of the family or descendant of such grandparent of the decedent: the entire estate to the decedent's grandparents on the eligible parent's side of the family in equal parts, or to the survivor of them, or if there is none surviving, to their descendants per stirpes.

(f) If there is no surviving spouse, descendant, eligible parent, descendant of the eligible parent, grandparent on the eligible parent's side of the family, or descendant of such grandparent of the decedent: the entire estate to the decedent's great-grandparents on the eligible parent's side of the family in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes.

(g) If there is no surviving spouse, descendant, eligible parent, descendant of the eligible parent, grandparent on the eligible parent's side of the family, descendant of such grandparent, great-grandparent on the eligible parent's side of the family, or descendant of such great-grandparent of the decedent: the entire estate in equal parts to the nearest kindred of the eligible parent of the decedent in equal degree (computing by the rules of the civil law) and without representation.

(h) If there is no surviving spouse, descendant, or eligible parent of the decedent and no known kindred of the eligible parent of the decedent: the real estate escheats to the county in which it is located; the personal estate physically located within this State and the personal estate physically located or held outside this State which is the subject of ancillary administration within this State escheats to the county of which the decedent was a resident or, if the decedent was not a resident of this State, to the county in which it is located; all other personal property of the decedent of every class and character, wherever situate, or the proceeds thereof, shall escheat to this State and be delivered to the State Treasurer of this State pursuant to the Revised Uniform Unclaimed Property Act.

For purposes of inheritance, the changes made by this amendatory Act of 1998 apply to all decedents who die on or after the effective date of this amendatory Act of 1998. For the purpose of determining the property rights of any person under any instrument, the changes made by this amendatory Act of 1998 apply to all instruments executed on or after the effective date of this amendatory Act of 1998.

A child born out of wedlock is heir of his mother and of any maternal ancestor and of any person from whom his mother might have inherited, if living; and the descendants of a person who was a child born out of wedlock shall represent such person and take by descent any estate which the parent would have taken, if living. If a decedent has acknowledged paternity of a child born out of wedlock or if during his lifetime or after his death a decedent has been adjudged to be the father of a child born out of wedlock, that person is heir of his father and of any paternal ancestor and of any person from whom his father might have inherited, if living; and the descendants of a person who was a child born out of wedlock shall represent that person and take by descent any estate which the parent would have taken, if living. If during his lifetime the decedent was adjudged to be the father of a child born out of wedlock by a court of competent jurisdiction, an authenticated copy of the judgment is sufficient proof of the paternity; but in all other cases paternity must be proved by clear and convincing evidence. A person who was a child born out of wedlock whose parents intermarry and who is acknowledged by the father as the father's child is a lawful child of the father. After a child born out of wedlock is adopted, that person's relationship to his or her adopting and natural parents shall be governed by Section 2-4 of this Act. For purposes of inheritance, the changes made by this amendatory Act of 1997 apply to all decedents who die on or after January 1, 1998. For the purpose of determining the property rights of any person under any instrument, the changes made by this amendatory Act of 1997 apply to all instruments executed on or after January 1, 1998.

Complicated family relationships can make the issues associated with intestacy even more complicated. To ensure that your estate is distributed in accordance to your wishes, contact an experienced Chicago intestate succession lawyer. The experienced attorneys at the Law Offices of Stephen Bilkis & Associates have the skill, knowledge and resources to help whether your estate matter is related to your own estate or a loved one’s. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.