COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 600
(By Senator Plymale)
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[Originating in the Committee on the Judiciary;
reported March 3, 1999.]
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A BILL to amend and reenact section five, article one, chapter
forty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to recognizing the
right of a child born out of wedlock to inherit from his or
her mother and father; and means of establishing paternity.
Be it enacted by the Legislature of West Virginia:
That section five, article one, chapter forty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 1. DESCENT.
§42-1-5. From whom children born out of wedlock inherit.
(a) Bastards Children born out of wedlock shall be capable
of inheriting and transmitting inheritance on the part of their
mother as if lawfully begotten and father.
(b) Prior to the death of the father, paternity shall be established by:
(1) Acknowledgment that he is the child's father; or
(2) Adjudication on the merits pursuant to the provisions of
section four, article six, chapter forty-eight-a of this code.
(c) After the death of the father, paternity shall be
established if, after a hearing on the merits, the court shall
find, by clear and convincing evidence that the man is the father
of the child. The civil action shall be filed in the circuit
court of the county where the administration of the decedent's
estate has been filed or could be filed:
(1) Within six months of the date of the final order of the
county commission admitting the decedent's will to probate or
commencing intestate administration of the estate; or
(2) If none of the above apply, within six months from the
date of decedent's death.
(d) Any putative child who at the time of the decedent's
death is under the age of eighteen years, a convict or a mentally
incapacitated person may file such civil action within six months
after he or she becomes of age or the disability ceases.
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(NOTE: The purpose of this bill is to remove the pejorative
term "bastard", and recognize the entitlement of a child born out
of wedlock to inherit from the father as well as the mother.
This codifies present case law on the issue and refers to the
code section that the courts have relied upon to establish
paternity, §48A-5A-1 et seq. This standard of proof is
maintained for cases of paternity arising after the death of the
father, but in the interest in finality of estates, limitation on when and where such actions can be instituted have been included
for claims against estates.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)