The Old Illegitimacy: Legal Discrimination Against Nonmarital Children

Professor Nancy Polikoff is organizing a conference titled The New “Illegitimacy”: Revisiting Why Parentage Should Not Depend on Marriage, at American University, Washington College of Law, March 25-26.  Many of the speakers will be focusing on the law’s discrimination against children of same-sex couples whose parents are not married or in a civil union.   Some scholars believe that “illegitimacy-based discrimination has largely faded from the legal (and social) landscape” and that the children of same-sex couples are the only group that still experience discrimination on the basis of birth status.   In reality, however, children of married couples (both opposite and same-sex) continue to reap legal and societal privileges that are denied to their nonmarital counterparts (regardless of their parents’ sexual orientation).

For most of U.S. history, “illegitimate” children, as they were referred to historically (and even now by some courts), suffered significant legal and societal discrimination. They had no legal right to parental support, intestate succession, or government benefits available to marital children.  They were stigmatized as “bastards” and frequently denied access to social, professional, and civic organizations.  Lawmakers and society justified their abhorrent treatment of nonmarital children on the ground that it would deter men and women from having children out of wedlock.

Discrimination against nonmarital children has decreased significantly in the last 40 years as a result of numerous U.S. Supreme Court decisions striking down laws that discriminate on the basis of birth status.  The Uniform Parentage Act and most state statutes now provide that nonmarital children have the same legal rights as marital children.  Societal disapproval of nonmarital childbearing has also decreased as nonmarital births have become much more common.  The nonmarital birth rate increased from 5% in 1960 to 41% in 2008.

Despite these legal and demographic changes, the law and society continue to discriminate against nonmarital children.  For example, nonmarital children must establish paternity before they can inherit from the father’s intestate estate, while marital children are entitled to inherit by virtue of their status as marital children, even (in many states) when there is evidence that they are the progeny of the mother’s extramarital affair.  Immigration and citizenship laws also discriminate on the basis of birth status.   While a foreign-born marital child of a U.S. citizen father (who meets certain residency requirements) is automatically entitled to U.S. citizenship, a nonmarital child must show that the father agreed (in writing) to support him or her and acknowledged paternity under oath or obtained a filiation order before the child’s eighteenth birthday.

Furthermore, at least one state expressly discriminates against nonmarital children seeking support for college expenses. The Iowa Supreme Court has upheld a statute that authorizes courts to order divorced parents to contribute to their children’s college education but does not authorize courts to order the same from parents of nonmarital children.

In addition to these explicit distinctions between marital and nonmarital children, the law indirectly disadvantages the latter by signaling that nonmarital families are undesirable.   In a future post, I will discuss these messages and how they contribute to further stigmatization and disadvantaging of nonmarital children.

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9 Responses

  1. Fred says:

    This effort is just another attack on traditional families and marriage. The real answer is for children to be a product of marriage, pure and simple.
    Anything else is an abberation, should be discouraged, and has no standing in our legal/moral system.

    If not for the un-natural push for “gay marriage”, this would not even be an issue. Another example of unintended initial consequences of the gay rights movement.

  2. Dan Katzman says:

    Traditional marriage grew out of historic practices of treating women as property. The fact that it is failing in societies that allow women to have rights equal (well, almost equal) to men is a reflection of this.
    Our society has not come up with a legal structure to recognize this new reality. It isn’t a gay/straight issue. It isn’t a moral issue. It is an issue of a legal structure that lags societal changes.

  3. Rhadamanthus says:

    Of “non-marital” children, you wrote: “They had no legal right to parental support, intestate succession, or government benefits available to marital children.”

    Perhaps there’s a scrivener’s error in there? Even “non-marital” children always had claims on their mothers for support, succeeded to their mothers’ estates in intestacy, and were not merely entitled to poor relief, but actually QUALIFIED their mothers to obtain welfare payments (e.g., ADC/AFDC– which largely refused benefits to children of married mothers who had able-bodied husbands, on the theory that “the man in the house” would support the family). (Although the question has long been disputed, it seems quite likely that welfare programs encourage(d) non-marital childbearing.)

    As for claiming support from their fathers, “non-marital” children (or their guardians ad-litem) could sue for the same, and get it upon proof of parentage by a preponderance. With respect to support, the marriage of the parents did and still does act as a kind of stipulation by the husband (and wife) that children born to a married mother are the offspring of her husband. Absent such evidence (marriage) or an acknowledgment of paternity from the putative father, there really is no basis to presume fatherhood, so any rational legal system would require proof before compelling a man to support a child which he does not acknowledge.

    The situation is nearly the same with regard to inheritance. The baseline rule is that no one inherits from another except by bequest or by operation of law tied to evidence of a relationship which carries a presumption of succession. The law supposes each competent adult is aware of the rules, so that when they marry they intend to bequeath a certain portion of their estate to their spouse and children unless they expressly provide otherwise in a will.

    I’m curious to learn how you propose to deal with the question of evidence. If you were to abolish the legal distinctions between marital and “non-marital” children, would you then make all children sue their (supposed) fathers for support? Or if you think that would impose too great a burden (on all the litigants as well as on the courts), how would you handle things without reinventing the distinction between marital (or otherwise acknowledged) children and other children without also reinventing the “distinction” you find so invidious?

  4. Joe says:

    Fred, the change in family relationships occurred writ large, and in no way is limited to gay relationships. In fact, gay relationships fit in a much wide process of change, one that started to change long before the gay rights movement received much attention.

    Since children now and always were not only products of marriage, what to do? Harm the children to send a message to the parents? Is this “moral”?

    As to “traditional families,” that is a sort of mythical thing, even changing at any rate. Should we, as we once had, have little ground for divorce? Coverture? Criminalization of any couple not married who live together? What?

  5. Joe says:

    Apologize for the typos.

    The comment I responded to has a clear bias but rests on sentiments (such as one that ignores how much family life as a whole has changed, singling out one group as not being “traditional”) that color the debate as a whole.

    Putting aside differences on the morality of homosexuality and the like, this is problematic.

  6. Solangel says:


    Under the common law, a child born out of wedlock was filius nullius (the child of no one) and thus had no right to parental support. “[T]he harsh common law of no parental support for bastards persisted in the USA until well into the 20th century.” John Witte, Jr., Ishmael’s Bane: The Sin and Crime of Illegitimacy Reconsidered, 5 PUNISHMENT & SOC’Y: THE INT’L J. OF PENOLOGY 327, 334-35 (2003).

    As to your question regarding evidence of paternity, we can establish paternity pretty accurately with DNA evidence, but in most states, a genetic relationship between the child and the father is not sufficient for purposes of inheritance. The law requires more.

    I wouldn’t make marital children sue their fathers for support or require them to prove paternity through DNA evidence. However, I would extend the marital presumption of paternity to nonmarital children whose fathers have held them out as their own. These children would not be required to prove paternity and would be entitled to paternal support and inheritance, and all of other benefits available to marital children. If you are curious about the details of my proposal, you can read the article at

  7. Rhadamanthus says:

    It appears to me that your source (Witte) may have misstated the Common Law.

    Blackstone summarized the Common Law of illegitimacy, and noted that “The only duty of parents to their bastard children which the law recognizes, is that of maintenance, which may be directed by two justices, and enforced by distress and imprisonment.” (Students will recall that “distress” means judicially-authorized seizure of goods or money.)

    The bastard was indeed termed filius nullius or filius populi(!), he inherited nothing by right, but of course, he could inherit by bequest or devise.

    At any rate, the bastard was entitled by law to support (“maintenance”) from his parents (generally mother, since father might be absent and proof of parentage was more difficult in times past than now).

  8. Rhadamanthus says:

    Oh, and “justices” means JP’s or local magistrates, which is to say, local squires– no need to sue in Common Pleas. (To reduce the cost of “poor relief,” local bigwigs would generally try to enforce support obligations.)

    I am not aware of any American jurisdiction, before or after Independence, in which “non-marital” children were not entitled to parental support.

    You wrote “…whose fathers have held them out as their own.” Well, that’s “acknowledged,” isn’t it? If any such father simply does support his children (as many do now), the matter will never come to court. If he doesn’t, then someone will have to sue, and the question of proof (evidence) will be engaged. If you allow proof of marriage as evidence of paternity then you’ve got the “distinction” back, and if you don’t, then you’ve got the problem of DNA testing. (You really don’t want to rely on hearsay evidence of informal statements “holding [a child] out as [his] own.” If you didn’t require proper evidence, every “non-marital” child in the country would claim to descend from Vernon Jordan or Roger Altman.)

  9. Adoptee says:

    I am an ill illegitimate child from the 50’s. My birth mother gave me up for adoption at birth. Found out who my birth father is and of course he is denying he’s the father. Birth mother died in 80’s but father is still alive. It’s not right that birth father’s in the 50’s are not held accountable for their irresponsible actions & the child is penalized because of it!!! LAWS NEED TO BE CHANGED!!!! They hold birth father’s accountable in today’s society!!!