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Inheritance rights of children born outside of marriage

View profile for William Mayston
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According to the Office for National Statistics, nearly as many children are now born to parents who are not married or in a registered civil partnership as to those who are. But do you have fewer rights where you are born outside of a legally recognised relationship, particularly when one of your parents dies? And what if you have been adopted or co-opted into a blended family? It is not uncommon for households to join forces without formalising the arrangement, so what are your inheritance rights in this scenario?

As William Mayston, civil litigation lawyer with Morlings in Maidstone, Kent explains:

‘Under English law, biological and legally adopted children are treated in the same way irrespective of their parents’ marital or civil partnership status. However, the same cannot be said for stepchildren and other minors living within a blended family setting.  Rights of inheritance are also dependent on whether the parent or parental figure who has died has left a will or if they have died without making a will, known as intestate.’  

If a parent or parental figure has died and you were surprised not to receive an inheritance, because of things that were said or the way that person looked after you during their lifetime, then you may wonder if everything is in order.  Seeking legal advice will help you to establish your rights and whether there is anything you can do to secure the inheritance you expected to receive.

Where there is a will

If you are the child of a parent or parental figure who has died with a valid will in place, then what you inherit will be determined by what the will says and the amount of money and property they left behind. For example, if a will made by your biological, adoptive or stepfather stipulates that everything should be split fifty-fifty between you and your mother, then that is what should happen. The amount you each receive will depend on how much is available once any debts, liabilities and inheritance tax charges have been settled. 

Where there is a will, but you are not mentioned

Where a will exists, but it fails to provide for you, then it may be possible for you to appeal this and to request that the terms of the will are varied in order to provide what can fairly be said to be ‘reasonable’ maintenance. It may also be possible for you to seek a variation where provision has been made, but the amount left to you is inadequate for your needs – for example where you have a disability that requires a certain level of financial support.   

You would need to make an application under the Inheritance (Provision for Family and Dependants) Act 1975, and would be eligible to do this if you are:

  • the biological child of the person who has died;
  • the adopted child of the person who has died;
  • a stepchild of the person who has died;
  • someone treated as a child of the family; or
  • someone who, immediately before death, was being financially maintained by the person who has died. 

Where you wish to make a claim based on a biological relationship and paternity is disputed by other family members, then it may be necessary for you to take a DNA test.

Normally, an application under the Inheritance Act must be made within six months of the date on which the grant of representation was issued i.e. the date on which permission was given by the probate court for the affairs of the person who has died to be administered. But note, sometimes it is possible for this deadline to be extended, so it is always worth taking legal advice to see if a claim may be possible.

Where you believe that you have been deliberately excluded from a will, for example as a result of pressure applied by other family members or even as a result of a will having been forged, then it may be possible for you to challenge the validity of the will and get it overturned.  

Where there is no will

If you are the child of a parent or parental figure who has died without making a will, then your right to receive an inheritance will be governed by the rules of intestacy. How these apply will depend on the circumstances. An eligible child includes a biological and legally adopted child, but not a stepchild or any other person treated as a child of the family.

Where you believe that the rules of intestacy fail to make adequate provision for you, it may again be possible for an application for variation to be made under the Inheritance Act. Alternatively, if everyone else entitled to inherit under the rules agrees, it may be possible for a voluntary variation to be effected by entering into a deed of variation or a deed of family arrangement. However, this must be done within two years of the date of death.

How our dispute resolution lawyers can help

Raising concerns about the provisions of a will, or the fairness of the intestacy rules, at a time when everyone is grieving can be hard. But by being upfront about how you feel from the outset, you can greatly increase the chances of matters being resolved amicably and without any hard feelings. We know this from our experience in dealing with families who are trying to grapple with an inheritance dispute, and where we have an excellent track record in achieving settlement, typically though negotiation or mediation or via the instigation of legal proceedings in those rare cases where this proves to be necessary.

The experienced lawyers in our inheritance disputes team can tell you quickly whether you have a right to share in your late parent’s estate, and how much your share should be worth. They can also then help you to secure what is rightfully yours in the most appropriate way.

Further information

To find out more about a potential inheritance dispute, please call William Mayston on 01622 673081 or via email at William.Mayston@morlings.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

For further information please call to speak to one of our experts on 01622 673081