NC Reforms Intestacy Laws for Children Born to Unwed Fathers
By Background
North Carolina has rather archaic laws regarding paternity and legitimization. In estate and probate matters, these issues arise when a father dies without a will (i.e., intestate) and leaves behind children born out of wedlock, where the father did not subsequently marry the mother or otherwise legitimate the child through the courts. In such cases, N.C.G.S. § 29-19(b) governs whether the child is considered an heir of the father and eligible to inherit via intestate succession.
This is significant for real estate attorneys and title searchers in determining who has title to real property owned by the intestate father. Not all biological children are intestate heirs under North Carolina law. In fact, the general rule is that children born out of wedlock, who are not subsequently legitimated, are not heirs and do not inherit from their father via intestate succession. However, there are three ways by which a child born out of wedlock can overcome this bar to inheritance, provided timely notice is given to the personal representative of the father’s estate.
- Court-Established Paternity: If paternity has been established in a paternity or child support action, court records are sufficient to allow the child to inherit.
- DNA Testing: If the father died before or within one year of the child’s birth, and DNA testing can establish paternity, this is also sufficient.
These first two methods remain unchanged.
- Acknowledgment of Paternity in Writing: Historically, the third method required the father to have acknowledged paternity during his and the child’s lifetime through a written, notarized instrument filed during the father’s lifetime with the clerk of superior court. In practice, this was often done through an affidavit of parentage, signed by both parents, typically to have the father listed on the child’s birth certificate.
However, most affidavits of parentage are not filed with the clerk of superior court, simply because unwed parents have no reason to consult an attorney or know this additional step is required. As a result, in families where paternity and child support actions are unnecessary, often in the case of happily unwed couples, children can suffer significant legal consequences if their father dies without a will. Once the father has died, it is too late to file the affidavit of parentage.
The Change Effective December 1, 2025
Fortunately, relief is on its way with House Bill 992. The bill was introduced on April 10, 2025, passed the House and Senate unanimously on June 26, 2025, and reached the governor’s desk on July 1, 2025. It was signed by the governor on July 9, 2025, and will apply to estates of decedents dying on or after December 1, 2025.
The change is simple but impactful. House Bill 992 removes the requirement that a written acknowledgment of paternity be filed with the clerk of superior court. Under N.C.G.S. § 130A-101(f), when a child is born to an unmarried mother, both parents may complete an affidavit of parentage to have the father’s name added to the birth certificate. While this affidavit is filed with the State Registrar, under current law, it does not affect inheritance rights unless also filed with the clerk of court per N.C.G.S. § 29-19(b)(2). Section 4 of House Bill 992 makes a conforming change to N.C.G.S. § 130A-101(f) by removing this additional filing requirement for inheritance purposes.
In short, for estates of decedents dying on or after December 1, 2025, if a father is listed on the child’s birth certificate, the child will be considered his heir and can inherit via intestate succession. While additional reform is likely needed to modernize North Carolina’s laws to conform with nontraditional family structures and prevailing ideas as to what it means to be a parent, this change addresses one of the most common injustices in our intestacy framework.
Lingering Nuance and Uncertainty
While this change will prevent many injustices for children born out of wedlock to intestate fathers, there remains nuance and uncertainty for real estate attorneys and title searchers. The heirs listed on the initial probate forms in the estate file may not be the heirs as finally determined. N.C.G.S. § 29-19(b) provides that, notwithstanding the three criteria to heirship for children born out of wedlock, no person shall be entitled to take unless the person has given written notice to the personal representative within six months after the date of the first publication or posting of the general notice to creditors. Accordingly, if an estate has been opened and is pending, title searchers should coordinate with the probate attorney or personal representative to confirm the heirs.
If cases where no personal representative qualifies and the intestate heirs attempt to sell real estate after two (2) years pursuant to N.C.G.S. § 28A‑17‑12(b), real estate attorneys may need to conduct their own due diligence as to the requirements of N.C.G.S. § 29-19(b). This scenario also begs the questions as to notice to the personal representative. Does a child born out of wedlock who meets one of the three criteria have rightful title to real property of the intestate father when no personal representative qualifies and, therefore, no notice is given? If no personal representative qualifies within two (2) years of the decedent’s death, all sales, leases or mortgages of real property by heirs are valid as to creditors and personal representatives of the decedent, but are such sales valid as to other intestate heirs? Perhaps the notice provision only applies to property of which the personal representative takes title and distributes, which would generally not include real property. Perhaps a customized indemnity agreement is needed for a real estate closing involving intestate heirs pursuant to N.C.G.S. § 28A‑17‑12(b). The answer may not be entirely settled or clear.
Whatever the solution may be, House Bill 992 offers a welcome and much-needed modification to the North Carolina Intestate Succession Act. Despite the needed and welcome change, intestate estates, especially involving unwed fathers, remain rife with nuance and potential title landmines of which real estate attorneys and title searchers should be aware.
Andrew M. Brower is a Board Certified Specialist in Estate Planning & Probate Law at Law Firm Carolinas, which has five offices and a statewide practice. For questions about estate planning and administration, wills and trusts, guardianships, or Medicaid/long-term care and asset protection, reach out to Andrew.