Abandoning Parents Under Intestacy: Where We are, Where We Need to Go

Abstract:     
American children are increasingly being raised in single parent homes, often below or near the poverty line. One consequence is that the issues of child welfare and child support receive significant media and legal attention, and beneficial changes in the legal landscape have occurred. Away from the highly visible and immediate problems of child welfare and child support are less celebrated legal issues, that often graphically underscore the systemic nature of the law's difficulty in dealing with questions of parental irresponsibility. One such example involves the overly of a parent who has abandoned a child, with the disposition of property at that child's death.

In the vast majority of jurisdictions the intestate rules treat an abandoning parent as an equal heir with the non-abandoning parent. Equity requires a different result. Moreover in those jurisdictions where the wrongful death statute applies a dependency standard for distribution, the abandoning parent generally does not share equally in the distribution of wrongful death proceeds, even though that parent would share equally in an intestate distribution. Consistency, as well as equity, requires that an abandoning parent not participate in the property distribution.

This Article will first review the statutory rules governing the distribution of property of an intestate decedent and the distribution of proceeds under wrongful death statutes. Three solutions to the inequity of an abandoning parent as legal heir will be presented. The first solution is a matter of statutory interpretation of parent as heir. The second considers a common law theory that has ancient Roman law origins. The third involves the application of existing statutes.

Keywords: intestacy, abandoned children

JEL Classifications: K11

Accepted Paper Series