Illegitimate children, as the law classifies those born out of wedlock, have long faced barriers to full family membership. Limited inheritance has remained the most significant legal penalty for those born outside legally recognized families. For property‐conscious common lawyers, inheritance cemented domestic bonds by creating a common interest in preserving the family heritage and resources. Denying inheritance rights to illegitimates represented an attempt to discourage birth out of wedlock and promote the legitimate family. In recent years as the Supreme Court has become more involved in these issues, inheritance has continued to be the most serious legal penalty facing these star‐crossed children.
Like most family policies, until recently, illegitimacy fell under the jurisdiction of the states and was rooted in traditional English law. Labeled filius nullius, the child of no one, English law had denied illegitimates the rights derived from family membership. Where legitimate children had the right to the family name, could inherit property, and had a right to food and education, illegitimate children could not inherit from either parent or other relations and had no right to the family name or even the custody, guardianship, or support of either parent. Beginning with Thomas Jefferson's path‐breaking 1785 Virginia statute, American laws eased the penalties of illegitimacy by granting first mothers and then fathers some custody and guardianship rights as well as support responsibilities. Acting out of a child‐centered attempt to cease punishing children for parental mistakes and to protect taxpayers from supporting these children, such changes became widespread and altered the status of illegitimate children. But inheritance remained more limited than other changes and one of the most litigated questions in the law of illegitimacy. Illegitimate children gained the right to inherit from their biological mothers in most states, but state codes split on whether these children could share in the estates of their mother's other kin. Bars to claims on paternal estates remained in most jurisdictions. The resistance to inheritance rights produced a patchwork of contradictory codes and decisions that revealed a continuing fear that inheritance rights for illegitimates would undermine paternal property rights and the family itself.
The Supreme Court's involvement in these issues has echoed the state experience. Beginning with Stevenson's Heirs v. Sullivan (1820), in which the Court interpreted the pioneering Virginia statute to mean that children born out of wedlock could not inherit from their siblings and that mothers could not claim the estates of their illegitimate children, the justices have been reluctant to grant inheritance rights to illegitimates. Judicial reticence emerged most vividly after 1968. The court used the Equal Protection Clause to challenge the legal restrictions of illegitimacy in a series of path‐breaking cases such as Levy v. Louisiana (1968), which granted illegitimate children the right to recover for the wrongful death of their mother, and Stanley v. Illinois (1972), which extended new custody rights to the fathers of illegitimate children. In an era of rising concern about illegitimacy, these and other decisions labeled many of the legal penalties imposed on these children as unfair constitutional violations that undermined child welfare by limiting their claims for support. But in Labine v. Vincent (1971), the court refused to extend their challenge to inheritance. A 5‐to‐4 majority upheld the right of states to restrict inheritance rights and rebuffed claims that illegitimacy was a suspect classification and should not be used as a classifying device. Writing for the majority, Justice Hugo Black accepted the right of states to distinguish between legitimate and illegitimate children and to use inheritance penalties on those born out of wedlock to promote the legally recognized family.
Inheritance thus continues to be the outer limit of reform in the legal rights of illegitimate children. It reveals the continued policy appeal of this age‐old legal classification. The persistent restriction is one answer in the long‐running debate over whether American family laws should be used to promote individual rights or protect the legitimate family. Like state courts before it, the Supreme Court's recognition of the constitutionality of inheritance restrictions on children born out of wedlock represents a continuing determination that the interests of illegitimate children should be sacrificed to a majoritarian vision of the society's larger interests in protecting the family.
See also Family and Children; Property Rights.
Bibliography
- Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth Century America (1985)
— Michael Grossberg
