Heirs And Omissions – Part III

Adopted Children

Inheritance by and from adopted children is governed by §2-4 of the Probate Act. The section is long and very technical. You need to review it thoroughly and apply it to your particular facts. There are four different time periods set out in the statute. It is important to determine when the instrument in question was drawn and when the decedent died in order to determine which time periods and rules apply. The section contains a number of provisions which protect a fiduciary in dealing with adopted children, so long as the fiduciary acts in good faith and without actual knowledge of contrary facts or circumstances.

General rules of inheritance under §2-4 can be stated, but they are subject to numerous exceptions. An adopted child is generally an heir of the adopting parents and all persons related to the adopting parents. Similarly, the adopting parents are generally heirs of the adopted child. The adopted child is generally not an heir of a natural parent. Natural parents and their relatives are normally not heirs of an adopted child except for property that that child received from the natural parents or the natural parents’ kindred.

Posthumous Children

A posthumous child is one who is born after the death of his father or mother. A posthumous child shares in a decedent’s estate as if he or she had been born during the decedent’s lifetime. [Probate Act §2-3]

Illegitimate Children

Inheritance by and from illegitimate children is governed by §2-2 of the Probate Act. This Section is also very long and technical and must be thoroughly reviewed for its specifics. The statements set forth below provide only a simplified overview of the relevant provisions.

Historically, the State of Illinois made a distinction between mothers and fathers of illegitimate children. At one time, illegitimates could only inherit through their mothers and not their fathers. In 1977, the United States Supreme Court struck down that distinction as a violation of the Equal Protection Clause. However, inheritance from illegitimate children was not addressed in that decision. In 1996, the Illinois Supreme Court decided Estate of Hicks. The Court thoroughly analyzed the statutes, rules, and procedures relating to equal protection and struck down the provisions of then §2-2 that distinguished between the rights of fathers and mothers to inherit from their illegitimate children.

As a result of Hicks, the legislature amended §2-2. The amended section starts out by defining an “eligible parent.” That concept is based on the actual relationship between parent and child and financial support of the child by the parent. The statute then sets forth the rules of inheritance in circumstances where there are two, one, or no “eligible parents” of an illegitimate child. The statute allows offsets against inheritance for arrearages in support and provides other remedies against parents who did not “support” their children.

Finally, the section addresses presumptions and the proof required to establish paternity of illegitimate children. The Hicks decision suggested that the legislature might set stricter proof requirements for proving such paternity. The legislature took the Court’s suggestion and established the burden of proof as clear and convincing (as well as setting forth other requirements). Once paternity is established, inheritance rights follow automatically.

Parent Neglecting Child

In 1994, the legislature added §2-6.5 to the Probate Act. That section is similar to the “eligible parent” provisions for illegitimates, but the section applies to all children. The Court can investigate the financial support by a parent for a child and the “non-financial” aspects of support. The Court can reduce sums that would otherwise pass to a neglectful parent in order to recoup support that should have been paid. If the neglect is severe enough, the Court can prevent the neglectful parent from receiving anything from the child other than as a surviving joint tenant or via a similar non-Probate transfer. If you encounter such a situation, you should refer to the specific provisions of the statute.

Person Causing Death Of Decedent

§2-6 of the Probate Act states that “[a] person who intentionally and unjustifiably causes the death of another shall not receive any property, benefit, or interest by reason of the death [in any manner as enumerated in the statute].” A person convicted of first or second degree murder is conclusively presumed to have caused the death. However, criminal prosecution is not necessary. There can actually be a civil murder trial in Probate Court where the burden of proof is the preponderance of the evidence. If the ruling of the Court meets the requirements of the statute, that person is barred from taking anything from the decedent, and the property passes as if the person had predeceased the decedent.


Armed with the information from these three articles, I make this wish for you: May all your heirs be known, and may all omissions be avoided!

© 2000 by Cary A. Lind, all rights reserved