HB1944: Succession; determination of parent-child relationship in determining rights to property.

HOUSE BILL NO. 1944
Offered January 14, 2009
Prefiled January 13, 2009
A BILL to amend and reenact 64.1-5.1 of the Code of Virginia, relating to succession; child born out of wedlock.
Patron-- Peace

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1. That 64.1-5.1 of the Code of Virginia is amended and reenacted as follows:

64.1-5.1. Meaning of child and related terms.

If, for purposes of this title or for determining rights in and to property pursuant to any deed, will, trust or other instrument, a relationship of parent and child must be established to determine succession or a taking by, through or from a person:

1. An adopted person is the child of an adopting parent and not of the biological parents, except that adoption of a child by the spouse of a biological parent has no effect on the relationship between the child and either biological parent.

2. The parentage of a child resulting from assisted conception shall be determined as provided in Chapter 9 ( 20-156 et seq.) of Title 20.

3. In cases not covered by subdivision 1 or 2 hereof, a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

a. The biological parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage was prohibited by law, deemed null or void or dissolved by a court; or

b. The paternity is established by clear and convincing evidence, including scientifically reliable genetic testing, as set forth in 64.1-5.2; however, paternity establishment pursuant to this subdivision b shall be ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.

4. No claim of succession based upon the relationship between a child born out of wedlock and a deceased parent of such child shall be recognized in the settlement of any decedent's estate for purposes of this title or for determining rights in and to property pursuant to any deed, will, trust, or other instrument, unless an affidavit by such child or by someone acting for such child alleging such parenthood has been filed within one year of the date of the death of such parent in the clerk's office of the circuit court of the jurisdiction wherein the property affected by such claim is located and an action seeking adjudication of parenthood is filed in an appropriate circuit court within said time. However, such one-year period shall run notwithstanding the minority of such child. The limitation period of the preceding sentence shall not apply in those cases where the relationship between the child born out of wedlock and the parent in question is (i) established by a birth record prepared upon information given by or at the request of such parent; or (ii) by admission by such parent of parenthood before any court or in writing under oath; or (iii) by a previously concluded proceeding to determine parentage pursuant to the provisions of former 20-61.1 or Chapter 3.1 ( 20-49.1 et seq.) of Title 20.

5. Unless otherwise specifically provided therein, an order terminating residual parental rights under 16.1-283 shall terminate the rights of the parent to take from or through the child in question but the order shall not otherwise affect the rights of the child, the child's kindred, or the parent's kindred to take from or through the parent or the rights of the parent's kindred to take from or through the child.