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St. Mary's Law Journal

Publisher

St. Mary's University School of Law

Abstract

Throughout Texas history the legal status of illegitimacy has prevented an illegitimate child from enjoying the right of parental support guaranteed to a legitimate child. The United States Supreme Court’s decision in Gomez v. Perez rendered unconstitutional the denial of an illegitimate child’s right to parental support on the basis of his illegitimacy. In response to Gomez, the Texas Legislature enacted Chapter 13 of the Texas Family Code (TFC) which provides for voluntary legitimation of an illegitimate child by the father. Section 13.01 gave an illegitimate child, whose natural father did not voluntarily acknowledge paternity, procedure to establish the parent-child relationship. However, several issues arose from section 13.01 such as retroactive application, applicability and tolling of the statute of limitations, and the rights accorded to an illegitimate child by a successful section 13.01 suit. These and other paternity issues remain unanswered despite the efforts of several courts of civil appeals to resolve them. Texas paternity legislation should secure equal treatment for both legitimate and illegitimate children. Texas can ensure equal treatment by granting an illegitimate child, who establishes paternity, all the statutory rights accorded a legitimate child by section 12.04 of the TFC. Further, adopting the Uniform Parentage Act would alleviate the problems arising from section 13.01 since the Act provides for tolling the statute of limitations, and equal treatment of illegitimate children. The right of an illegitimate child to inherit through his father also needs statutory clarification in Texas. Uncertainty arises from the amended section 42 of the Texas Probate Code which fails to state the effect of involuntary legitimation on the illegitimate child’s right to inherit through his natural father. To alleviate this doubt, proposed legislation should state an illegitimate child who established paternity shall inherit from his natural father as if a legitimate child.

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