Document Type

Article

Publication Date

2012

Keywords

Legal status of children

Disciplines

Family Law

Abstract

The legal treatment of children of unmarried parents and stepchildren must be changed if they are not to be disadvantaged in comparison with children of married parents. With respect to the areas of law discussed in this Article, legal reform is necessary in a variety of situations in which legitimate children receive what is the functional equivalent of posthumous support-that is, inheritance in the absence of a will, social security survivors benefits, workers' compensation, and tort suits for wrongful death and loss of consortium. Cohabitants and stepchildren of both married and unmarried parents should be added to the persons listed as the natural objects of a decedent's bounty under state intestacy law after they have lived together for two years or the adult cohabitants have had a child in common. The Social Security Act should be amended so as to treat illegitimate children genuinely as equal to legitimate children, by not requiring proof of actual dependency at the time of the death of the insured if they had a right to support at that time. Stepchildren of both married and unmarried parents should also be eligible for social security benefits if they were minors and dependent upon the insured stepparent when he or she died. Under workers' compensation laws, wrongful death statutes, and in common law loss of consortium cases, awards should be available to cohabitants' children and stepchildren on the same terms as to children of married parents; in most cases, this will involve dependency at the time of death. In the absence of legal change in all these areas, children will continue to be punished for their parents' failure to marry.

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