Maryland Estates and Trusts Article sets forth the rule regarding illegitimate children. Essentially, a child born to parents who have not participated in a marriage ceremony shall be considered a child of the mother. To be considered a child of his or her father, one of the following circumstances must be established: (i) a judicial determination in a paternity suit, (ii) the father has acknowledged himself in writing to be the father, (iii) the father has “openly and notoriously” recognized the child to be his child, or (iv) the father has subsequently married the mother and acknowledged himself orally or in writing to be the father. Md. Code Ann., Est. & Trusts § 1-208(b). The first method of determining paternity (judicial determination) may be accomplished even after the putative father’s death. Taxiera v. Malkus, 320 Md. 471, 578 A.2d 761 (1990). If there is a situation where paternity has not been determined absolutely and the father has died, it may be prudent for a child wishing to claim paternity of the decedent to seek a court order to preserve DNA evidence for a subsequent paternity action.
Section 3-107 of the Estates and Trusts Article states that a child of the decedent who is conceived before death of the decedent but born afterwards shall inherit as if he had been born during the lifetime of the decedent. See, e.g., Harris v. Brinkley, 33 Md. App. 508, 514, 365 A.2d 304 (1976). Under the common law tradition, there was a rebuttable presumption that the normal of period of gestation was 280 days (10 lunar months). If a child claims conception before 280 days of the birth, the burden would be on the child.
An adopted child’s right to inherit from his or her natural parent has evolved over time. In Hall v. Vallandingham, 75 Md. App 187, 540 A.2d 1162 (1988), the court held that the adoption terminated the child’s right to inherit through the natural parent. Here, Mr. Vallandingham died and was survived by his widow and their four children. Four years later, the widow remarried a man who adopted the children. Some time later, Mr. Vallandingham’s brother died childless, unmarried and intestate. His sole heirs were his surviving brothers and sisters and the children of the brothers and sisters who had predeceased him. The Orphans’ Court for St. Mary’s County transmitted the issue to the Court of Special Appeals for determination. The court held that the adopted children were not entitled to inherit from the natural uncle because they had been adopted – thereby terminating all of their rights to the natural parents. This is the rule under § 1-207 pertaining to adopted children:
“An adopted child shall be treated as a natural child of his adopting parent or parents. On adoption, a child no longer shall be considered a child or either natural parent, except that upon adoption by the spouse of a natural parent, the child shall still be considered the child of that natural parent.”
The Uniform Probate Code states that the adoption of a child by the spouse of a natural parent has no effect on the right of the child or descendant of the child to inherit from or through the other natural parent. See Unif. Probate Code § 2-119. Similarly, in Maccallum v. Seymour, 165 Vt. 452, 686 A.2d. 935 (1996), Vermont held that the denial of an adopted person’s right to inherit through the adopted parents or ancestors was unconstitutional as a denial of equal protection.