Through the Loophole: How Children of Unwed Parents Can Lose Inheritance Rights

Alice was just 13 when her dad, Rick, died. Though she lived in Asheville with her mom, Jen, and he had lived in Weaverville, she’d been close with him and had always felt lucky that her parents were so amiable when it came to co-parenting. Maybe it was because they’d never married and never had to go through all the rancor that divorce can cause. Not only did they consult each other in all decision-making, they made sure to split all costs of raising Alice. Her dad had even helped out a bit more when Jen got laid off and then when her new job paid so much less. Yes, Alice was lucky.

Until the car accident. And then, after the funeral, as Alice lay on her bed contemplating life without her Dad, her mom learned that he hadn’t left a will.

“It’ll be okay,” her mom told Alice later, and explained that she’d found a carbon copy of something called  an “Affidavit of Parentage for Child Born out of Wedlock”  in the folder where she kept their important papers, like Alice’s birth certificate.

“We couldn’t get your birth certificate without signing this,” Jen said, holding it up. “I remember being relieved that there was something that says for sure that Rick was your dad. He had to sign a certification saying that.” She read it aloud:

“I acknowledge that I am the natural father of the child named above. I understand that this Affidavit shall, when signed and sworn by both parents, have the same force and effect as a judgment of the court in establishing my paternity of the above-named child.”

“They told us at the hospital that this would be filed with the state,” Jen said. “So, even though there isn’t a will, it’ll all be okay.” As she and Alice hugged, they both believed this to be true.

But it wasn’t okay. Hidden in the fine print, on the back of the Affidavit, in small grey type was this:

The execution and filing of this Affidavit with the registrar does not affect inheritance rights unless it is also filed with the Clerk of Court in the county where the father or child resides.

Even when her lawyer pointed this line out to Jen, a few weeks later, it was hard to read and even harder to believe.

The execution and filing of this Affidavit with the registrar does not affect inheritance rights unless it is also filed with the Clerk of Court in the county where the father or child resides.

The lawyer’s face looked pained when she said, “I’ve checked, and it was never filed with the Clerk of Court. Not surprising, really. Most people just assume the state sends it on to the local county.”

“Well, yeah, I had no idea we had to do it ourselves,” Jen said. “The Affidavit says it ‘shall have the same force and effect as judgment of the court,’ – so, it’s as good as a court order, right?”

The lawyer sighed. “Right, except it doesn’t really have that effect. What it means is that Alice has NO inheritance rights.”

Jen was stunned as the lawyer explained that the affidavit did prove that Rick was Alice’s father and would be responsible for child support while he was alive. And that all of the other North Carolina statutes dealing with the support of minor children are premised on not letting a minor child fall through the cracks without any financially responsible adult.  Even after a parent’s parental rights are terminated, the parent remains responsible for support until the child is legally adopted so as to prevent a gap in financial support. “It’s a weird loophole in the North Carolina Statute,” the lawyer concluded.

After a long moment, Jen asked, “Should I go ahead and file it now? What if I die? I don’t have a will either.”

“No need to file it now,” the lawyer answered. “The state, for obvious reasons, considers the natural mother’s certification as essentially self-proving, so the child will be recognized as the mother’s lawful descendant, or heir, for inheritance rights. In other words, if you die, she does have inheritance rights. This problem occurs only with the death of an unwed father.”

Jen slumped in her seat, wondering how she and Alice were going to manage. “This is so unfair,” she said.

Here at Burt Langley PC, we think it’s unfair, too, but it is North Carolina law. We offer Alice’s story (a hypothetical scenario) as a cautionary tale for anyone who is a child of unwed parents or who is an unwed parent. It is likely that North Carolina Department of Health and Human Services form 1660, Affidavit of Parentage for Child Born Out of Wedlock, was signed and filed with the state at the time of birth, but unless someone personally filed it with the Clerk of Court where you (as the child or father) live, without a will, inheritance rights will be lost. Not filing the affidavit isn’t unusual. A recent search of the Buncombe County Clerk of Court’s records on filed Affidavits of Parentage revealed that no officials had recalled ever seeing this form filed, nor were any discovered in the appropriate record books – NONE.

This means, right here in Buncombe County, there are likely children of unwed parents who have NO inheritance rights should their father die without a will.

To prevent this situation, before a death triggers a tragic discovery similar to Alice’s, please seek legal advice immediately; or make sure that you, your father, or the father of your child executes a will. If this is beyond your control, make sure this affidavit is filed with the Clerk of Court, no matter how many years have passed since the birth, in the county where the father or child lives. Even if you were led to believe that it was filed, double-check!


April M. Burt is a transactional lawyer. Katherine Langley and Chad Anderson are trial lawyers. These Asheville-based attorneys focus their practice in the areas of business law, employment law, estate planning, and transactional law. They serve clients in the Western North Carolina communities located in Buncombe, Henderson, Haywood, Madison, and surrounding counties.


Burt Langley, PC | 149 S. Lexington Avenue | Asheville, NC 28801 | P: 828-367-7090 | F: 828-318-8899