Also known as: nonmarital children · non-marital child · non-marital children
Written by attorneys · grounded in primary & secondary sources — see below
A child whose parents are not married to each other. The status triggers constitutional protections for an established parental relationship and supplies default rules for class gifts and intestate succession that treat the child as a child of the genetic parent unless contrary intent appears.
Nalini Narula and her partner lived together and raised their son as a family unit. After the mother died, state officials removed the boy without notice or a hearing on the father's fitness. The father sued, claiming the automatic removal violated due process because his established custodial relationship with the nonmarital child received constitutional protection.
Neil Nair executed a will leaving a remainder to his children. He had never married the mother of his daughter Nadia Novak, yet he had functioned as her parent before his death. The court included Nadia in the class because the Restatement treats a nonmarital child as a child of the genetic parent when the gift is created by that parent.
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Norman Nash died leaving assets that his nonmarital son sought to claim through support proceedings. State law barred suits on behalf of nonmarital children after six years while allowing marital children to sue at any time. The court invalidated the limit under intermediate scrutiny because the state failed to show the cutoff substantially advanced any important interest in preventing stale claims.
Noreen Nguyen sought to inherit from her deceased father under state intestacy law. The statute conditioned a nonmarital child's share on a paternity adjudication entered during the father's life. The court upheld the requirement because it substantially related to the state's interest in orderly estate administration and reduced the risk of fraudulent claims after death.
Nicole Navarro's father died intestate. State law categorically excluded all nonmarital children from inheriting from their fathers. The court struck down the statute because the total bar was not substantially related to any important governmental interest and penalized the child for the parents' conduct.
Northern Manufacturing's founder died intestate. His nonmarital grandchildren claimed shares as his issue. The court held that the term issue includes both marital and nonmarital lineal descendants once consanguinity is established, allowing the grandchildren to inherit under the intestacy statute.
An unmarried father who has formed a family unit with his nonmarital child possesses a protected liberty interest in the relationship. The state may not remove the child without notice and an opportunity to be heard on the father's fitness.
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The nonmarital child is presumptively included as a child of the genetic parent unless the governing instrument or circumstances show a contrary intention by the transferor.
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A state may require formal establishment of paternity during the father's life if the rule is substantially related to the important interest in orderly estate administration and the prevention of fraudulent claims.
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No. A total exclusion of nonmarital children from inheriting from their fathers is not substantially related to any important governmental interest and violates equal protection.
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Classifications based on illegitimacy receive intermediate scrutiny and must be substantially related to an important governmental objective.
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…1409(a)(4) is thus paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children. Under this law, as one advocate explained to Congress in a 1932 plea for a sex-neutral citizenship law, "when it comes to the illegitimate child, which is a great burden, then the mother…