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The condition before the law, or the social status, of a child whose parents were not married to each other at the time of his or her birth.

The term nonmarital child is also used inter-changeably with illegitimate child.

English Common Law placed harsh penalties on an illegitimate child, denying the child inheritance and property rights. Modern law has given the nonmarital child more rights but still differentiates between the marital and nonmarital status. In addition, a rising level of out-of-wedlock births in the United States has drawn the attention of politicians and policy makers.

Common Law and Illegitimacy

A child was considered to be illegitimate at common law if the parents were not married to each other at the time of the child's birth even though the parents were married later.

There was a common-law presumption that a child born of a married woman was legitimate. This presumption was rebuttable, however, upon proof that her husband either was physically incapable of impregnating her or was absent at the time of conception. In addition, a child born of a marriage for which an Annulment was granted was considered illegitimate, since an annulled marriage is void retroactively from its beginning. Furthermore, if a man married a second time while still legally married to his first wife, a child born of the bigamous marriage was illegitimate.

Robert L. Johnson's Son? The Rights of Illegitimate Heirs

Robert L. Johnson is an important figure in blues music. Though he recorded only twenty-nine songs before his death in 1938, at age twenty-seven, Johnson's songs, voice, and guitar playing have influenced many great musicians, including Muddy Waters, Keith Richards, and Eric Clapton. The Mississippi bluesman's recordings became a commercial success in the late 1960s, and by 1990 his collected works were released on compact discs.

Johnson married twice. Both wives died before he did and left no children. In 1974 Johnson's half-sister, Carrie Thompson, sold the copyrights of his songs and photographs, asserting that she was entitled to his estate. Upon her death in 1983, her half-sister Annye Anderson inherited her purported rights to Johnson's work.

When Anderson finally probated Johnson's estate in 1991, Claud L. Johnson filed a claim stating that he was the illegitimate son of Johnson and the sole heir of the bluesman. Claud Johnson produced a Mississippi birth certificate from 1931 that lists R. L. Johnson as his father.

But for the U.S. Supreme Court's ruling in Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), Claud Johnson could not have made his claim. Until Trimble Mississippi prohibited illegitimate children from inheriting from their father.

Anderson argued that Claud Johnson's claim should be dismissed because he had waited too long to file it. A county court agreed with Anderson, but the Mississippi Supreme Court reversed the lower court's decision, ruling that the intent of state law was to give the same rights to illegitimate as to legitimate children (In re Estate of Johnson, 1996 WL 138615 [Miss.]). The supreme court sent the case back to the county court, which is to determine whether Claud Johnson is the son of Robert Johnson. If so, he is entitled to Robert Johnson's estate.

At common law an illegitimate child was a fillius nullius (child of no one) and had no parental inheritance rights. This deprivation was based in part on societal and religious beliefs concerning the sanctity of the marital relation-ship, as well as the legal principles that property rights were determined by blood relationships. The legal rights and duties of a person born of married parents could be ascertained more accurately than those of a child with an unknown or disputed father. Public policy in favor of maintaining solid family relationships contributed significantly to the preference for a legitimate child.

Modern Law

The harsher aspects of the common law dealing with an illegitimate child have been eliminated, primarily through the application of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. In Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 436 (1968), the Supreme Court ruled that a state statute (La. Civ. Code Ann. Art. 2315) that barred illegitimate children from recovering damages for the Wrongful Death of their mother, but allowed legitimate children to recover in similar circumstances, was invalid because it denied illegitimate children Equal Protection of the law.

The Supreme Court also enhanced the right of an illegitimate child to inherit property. Whereas most states had given legitimate and illegitimate children the same right to inherit property from the mother and her family, a number of states did not allow an illegitimate child to inherit property from the father in the absence of a specific provision in the father's will. In Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), the Supreme Court ruled such provisions in an Illinois statute invalid.

A majority of states now subscribe to the theory that a child born of any union that has the characteristics of a formal marriage relationship is entitled to legitimate status. This theory includes children born of marriages that fail owing to legal technicalities as well as children of void or Voidable marriages.

Some states still recognize the validity of Common-Law Marriage, which takes place when a man and woman cohabit for an extensive period, and hold themselves out to the public as being Husband and Wife even though they were never formally married. In such states children born of such arrangements are considered legitimate. Common-law marriages were a convenient mechanism in the nineteenth century for establishing property rights and legitimating children. Frontier society accepted the economic necessity for permitting such marriages because it was difficult for people on the frontier to obtain a formal marriage license; without common-law marriages, many children would have been declared illegitimate.

Legal Presumption of Legitimacy

The presumption of legitimacy is a strong legal presumption because public policy favors legitimacy to preserve stable family groupings. This presumption can be rebutted only if it can be clearly established that the child in question is illegitimate. A child born to a married couple is presumed to be their legitimate offspring in the absence of a clear demonstration that the husband could not possibly be the father.

Legitimation is the process whereby the status of a child is changed from illegitimate to legitimate. Some statutes provide that a child becomes legitimated upon an open Acknowledgment of Paternity by the alleged father. In some states an oral admission is sufficient, but in other states a written statement is required. A majority of states prescribe that an acknowledgment must be coupled with an act in order for the child to be declared legitimate. An adequate act in some states is the marriage of the child's natural parents. Once a child has been determined to be legitimate, he or she is entitled to the same rights and protections as any individual whose legitimacy has never been questioned.

Paternity Actions

A paternity suit, or affiliation proceeding, may be brought against a father by an unmarried mother. This civil action is intended not to legitimate the child but to obtain support for the child and often to obtain the payment of bills incident to the pregnancy. Ordinarily, the mother starts the civil lawsuit, but some states allow public authorities to bring a paternity action for the mother if she refuses to do so. If the mother is on Welfare, a paternity action is a vehicle for the local government agency to obtain financial assistance from the father.

A paternity action must start within the time prescribed by the Statute of Limitations,or the mother's right to establish the putative father's paternity and corresponding support obligation will be lost. The evidence needed to establish paternity includes the testimony of the mother, blood and DNA tests, and in some states photographs from which to determine similar facial characteristics of the alleged father and the child.

Legal Rights of Fathers

Whether a father acknowledges paternity or is adjudged to be the father in a paternity action, he has more custody rights today than at common law. At common law fathers were assumed to have little concern for the well-being of their illegitimate offspring. Historically, in most jurisdictions, if a child was illegitimate, the child could be adopted with only the consent of his or her natural mother.

This assumption, as embodied in a New York statute (N.Y. Domestic Relations Law § 111), was challenged in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979). The key issue was whether the consent of an unwed biological father had to be obtained before an Adoption could be finalized. The Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of Sex Discrimination.

Artificial Insemination

Legitimacy issues have arisen when a child is conceived by Artificial Insemination. This process involves impregnating a woman, without sexual intercourse, with the semen of a donor who might be her husband or another party. Some states adhere to traditional views and consider any child conceived in this manner to be illegitimate, regardless of whether the husband gave his consent to the procedure. Other courts declare that a child is legitimate if the husband consented. A child is most likely considered illegitimate when the mother was unmarried and was artificially inseminated by an unknown donor, and remains unmarried. In most cases of artificial insemination, the father has donated semen anonymously, and his identity is not known.

Current Trends

The rate of illegitimate births in the United States has risen sharply since the early 1970s. In the 1940s fewer than five percent of the total births were out of wedlock. By the early 2000s, according to statistics compiled by the Center for Health Statistics at the U.S. Health and Human Services Department, births to unmarried mothers accounted for nearly one-third of all U.S. births.

Further readings

Roberts, Patricia G. 1998. "Adopted and Nonmarital Children—Exploring the 1990 Uniform Probate Code's Intestacy and Class Gift Provisions." Real Property, Probate and Trust Journal 32 (winter): 539–70.

Sigle-Rushton, Wendy, and Sara McLanahan. 2002."The Living Arrangements of New Unmarried Mothers." Demography (August).

Terry-Humen, Elizabeth, Jennifer Manlove, and Kristen A. Moore. 2001. "Births Outside of Marriage: Perceptions vs. Reality." Child Trends Research Brief (April).


Child Custody; Child Support; DNA Evidence; Family Law; Parent and Child.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.


the state of being born of parents who are not legally married. Since 1987, most of the disadvantages of illegitimacy affecting inheritance have been removed so that illegitimate children may take property under a will or under the intestacy rules as if they were legitimate. Illegitimate children cannot, however, succeed to titles of honour. A similar situation in Scotland brought about similar reform.
Collins Dictionary of Law © W.J. Stewart, 2006
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