Comment on Illegitimate Succession: Vestigial Discrimination in Wyoming’s Rules of Intestate Descent
Although the first child is free, any person who becomes the biological parent of a second nonmarital child within the state of Mississippi is guilty of a misdemeanor punishable by a $250.00 fine and up to ninety days imprisonment. Indeed, until the state amended its “crimes against public morals and decency” in 2004, Mississippi required its state health department to report the names and addresses of every person “listed on birth certificates of illegitimate children” to every district attorney in the state. In Tennessee, county officials may indenture nonmarital children into servitude if it “satisfactorily” appears their mother “disregards their moral and mental culture, and either keeps or lives in a house of ill fame.” So long as it seems it would better the child’s condition, Tennessee counties can “bind out illegitimate children,” as apprentices even if the mother otherwise provides her children with sufficient clothing and food.
Notwithstanding these rather extreme exceptions, modern statutory schemes generally disfavor laws that create legal distinctions based on the marital status of a person’s parents, especially laws that deny rights to nonmarital children or perpetuate the stigma associated with the legal status of “illegitimacy.” This sentiment, however, represents a substantial evolution in social views that effected changes to important areas of law. Although Wyoming law reflects some of the legislative trends related to the rights of nonmarital children, the state’s laws of intestate succession continue to distinguish between marital and nonmarital children. Wyoming Statute § 2-4-102, entitled “Rule of descent; illegitimate person,” provides the “rule of descent of all property, real and personal, of any illegitimate person dying intestate” in Wyoming. Under this provision, nonmarital children are categorically precluded from distributing property to their fathers through intestate succession, even after the father establishes paternity by judicial determination.
Part II of this Comment begins with a brief history of the treatment of nonmarital children in state intestacy laws and in Wyoming’s rules of intestate descent. Part II follows with an overview of United States Supreme Court jurisprudence concerning discrimination against nonmarital children in state inheritance laws. Part II concludes with an examination of how most state legislatures have responded to these Supreme Court decisions by eliminating statutory distinctions between marital and nonmarital children, including the stigmatizing classification of “illegitimacy.” Finally, Part III challenges the propriety of Wyoming Statute § 2-4-102 in light of surrounding provisions, equal protection concerns, and current social models. Although Wyoming has eliminated the legal distinction from most of its statutes, the Wyoming State Legislature finds itself decades behind legislative and societal trends with respect to its laws of intestate succession. Accordingly, Part III argues that Wyoming should repeal § 2-4-102, which continues to label nonmarital children as “illegitimate,” both in title and in substance.