Whom are a person’s heirs? Heirs are those who inherit a decedent’s property if he or she dies without a will. The law has long established that a surviving spouse has a right to receive a share, and then children, or other lineal descendants, inherit. If there are no lineal descendants, then parents are heirs, then grandparents, siblings, nieces and nephews, and so forth.

In a world where there are multiple marriages, many children born to unmarried parents, in vitro fertilization, and unconventional living situations, how does one determine whom are a person’s heirs? Recent developments in technology, including DNA tests, are raising challenges to well-settled principals of the common law.

A Florida case, Doe v. Doe, decided by Florida’s 2nd District Court of Appeals in September 2009, was about this problem. The facts of Doe are uncomplicated. Chester Jr. and Eleanor, his wife, executed trusts which provided for a gift to their grandchildren. One of the grandchildren was Catherine, who was the daughter of Chester III (son of Chester Jr. and Eleanor) by virtue of his name appearing on her birth certificate and a court order entered in the domestic relations division following Chester III’s divorce from Catherine’s mother.

Chester Jr. and Eleanor never knew, but Chester III submitted samples from Catherine and himself to two separate laboratories for DNA testing. The test results from each of the two laboratories conclusively excluded Chester III as Catherine’s biological father. Eleanor, who survived Chester Jr., died six years after the results of the DNA tests became known to Chester III.

The trust contained this language: "For all purposes, hereunder, in determining whether any person is a child or descendant, only children and descendants by blood shall be included."

The trustee brought suit to exclude Catherine from the class of trust beneficiaries since the DNA test proved she was not a "descendant by blood." The question before the court was whether DNA test results should be allowed to prove that a child is not an heir?

After a long disquisition, the court said: "To put it in a nutshell, the trusts’ Article XVIII appears in legal instruments, not in a technical paper on genetics. The phrase "descendants by blood" is a legal term of art, not a scientific one. As a legitimate child of one of the settlors’ sons, Catherine qualifies as one of the settlors’ ‘descendants by blood.’"

What is meant by "legitimate" in this context? It has long been a presumption of the law of inheritance that a child born to a married couple is "legitimate" that is, it is the child of both parents. In the days when this presumption developed, DNA testing was not available. Also, a child acknowledged by the father has been presumed an heir.

Questions of the interpretation of wills and trusts always turn on the decedent’s intent. The presumption and interpretations imposed by law are aimed at discerning intent. In this case, what did Chester Jr. and Eleanor intend? Did they want Catherine to share in their estate? Apparently they did. Would they have wanted her to share if they knew their son Chester Jr. was not her biological father? Tough question. How can we know?

The Court closely examined the meaning of the term "descendants by blood" as it has been historically used in wills and trusts. Generally, such expressions were used as a term of art to exclude adopted persons as beneficiaries. Because the blood restriction came to be used long before genetic testing became available, the Court did not want to extend its meaning "to disqualify descendants who were not adopted and who would otherwise qualify as a beneficiary." Therefore, as a legitimate child of Chester III, Catherine qualifies as one of the descendants by blood of Chester Jr. and Eleanor.

Thus, the court held that the DNA evidence would not be used to remove Catherine as a beneficiary.

A different standard and view was applied to the converse case when the court included a child not born in wedlock, who claimed to be an "heir" of the decedent, even though he or she had not been acknowledged and there had been no adjudication of paternity.

We look for more developments in the law around these issues. Will the old common law approach be upheld when the DNA evidence is clear and convincing? What will this do to families?

If you are concerned about who will be considered to be your heirs and beneficiaries because of complex personal relationships, there is an easy solution: make a will. When you make a will you can specify who should be included and how their relation should be determined. Don’t leave it to chance, or years of litigation. Making a will that specifically addresses these issues is the way to make sure your intentions are followed.