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Wills & Trusts – Intestate Succession – Paternity Proof

Two children born out of wedlock to a man who died without a will own a portion of his real estate and their partition suit not barred because they did not comply with Va. Code § 64.1-5.1(4) to prove within one year of the man’s death that he was their biological father, in this Virginia Supreme Court decision.

We hold the language of Code § 64.1-5.1(4) is plain and unambiguous. When a relationship of parent and child must be proved to determine succession, Code § 64.1-5.1(4) provides, with exceptions not relevant here, that a claim of succession by a child born out of wedlock will not be recognized in the settlement of any decedent’s estate unless an affidavit alleging parenthood is filed within one year of the date of the parent’s death, and an action requesting an adjudication of parenthood is filed within that same one-year period.

These statutory requirements, by their plain language, apply only to the settlement of a decedent’s estate and do not apply to the determination of heirs to, and the partition of, real property passing by intestate succession. Under Code § 64.1-1, the title to the man’s real property passed at the moment of his death to his widow and to his children, in their respective statutory shares. Although plaintiffs were required to establish in the present partition suit that they were the man’s “children” in order to prove their title to the property under Code § 64.1-1, plaintiffs were not bound by the requirements of Code § 64.1-5.1(4).
Contrary to the widow’s argument, our holding in Belton v. Crudup, 273 Va. 368 (2007), does not affect our conclusion here.

We hold the circuit court did not err in determining that plaintiffs established they are legal heirs of the man entitled to a share of the proceeds of sale of the subject real property.

Affirmed and remanded.

Jenkins v. Johnson (Keenan, J.) No. 071206, June 6, 2008; Fauquier County Cir.Ct. (Parker) Donald E. Coulter for appellants; Ann M. Callaway for appellees. VLW 008-6-065, 8 pp.

VLW 008-6-065

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