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The phrase “illegitimate heir” sounds old. It smells of courtrooms from another century. It carries shame. It carries exclusion. It also carries legal baggage. But in Canada, the law has changed. The label remains in history books. The legal consequences do not.
This piece explains how the law treats children born outside of marriage. It focuses on practical outcomes. It is aimed at readers in Alberta. It is written by Faber LLP. Our office is in Edmonton. Our website is FaberLLP.ca.
A short history, then the present
Once, being born outside marriage meant limited rights. The law said a child had to be “legitimate” to inherit. Courts and statutes enforced that. That has changed.
Over the last decades, statutes and case law removed many legal disabilities attached to birth status. The shift is clear across Canada. The modern law treats children by relationship and parentage. Not by the marital status of their parents.
Evidence, like acknowledgement and DNA, matters. So do statutes that set out who inherits when there is no will. The Wills and Succession Act, for example, is the main statute in Alberta that governs succession now. (open.alberta.ca)
What matters today
Here are the facts that actually change outcomes.
- Parentage Matters Courts look to parentage. If a person is a biological or legally recognized child of the deceased, that child has inheritance rights like any other child. Paternity can be established by acknowledgment, registration, or DNA. It can also be established through court processes.
- Wills Still Control If a parent writes a will, they can distribute their estate as they wish. A will can favor some children and not others. But omission is not always final. In many provinces, including Alberta, dependants who are left out may apply to the court for relief if the will does not reasonably provide for their maintenance and support. That includes biological children born outside marriage.
- Intestacy rules apply equally If someone dies without a will, provincial intestacy rules govern distribution. Those rules typically divide the estate among spouse and children, or among children if no spouse survives.
Children born outside marriage are heirs under these rules. They are treated the same as children born to married parents. Provincial consolidation of succession law has made this uniform in practice. (open.alberta.ca)
- Social and extra-legal factors do not erase rights Lack of relationship, residence in a different household, or long absence do not automatically revoke inheritance rights. Sometimes those facts affect equitable remedies or court decisions. But they do not strip legal status by themselves.
Common scenarios and how the law responds
- Scenario A: No will A father dies without a will. He has a spouse and two adult children from the marriage. He also has a child born outside marriage who was never acknowledged. The child seeks a share. The child can apply to establish parentage. If successful, the child is an heir under intestacy rules. The estate will be divided according to the Wills and Succession Act and related intestacy provisions. (open.alberta.ca)
- Scenario B: Will excludes a child A parent leaves a will that leaves everything to a spouse and nothing to one child. That child can apply to court, arguing the will fails to provide for their maintenance and support. Courts examine need, the size of the estate, the relationship, and moral obligations. The court can order variations to the will to provide for the dependant.
- Scenario C: Paternity uncertain DNA tests now make parentage much easier to prove. If the alleged child can show genetic evidence, and that evidence is accepted by the court, the legal link is strong. After parentage is proven, the same succession rules apply.
Why the shift matters
The legal change reflects social change. Family shapes are more varied now. The law follows. This matters for two reasons.
First, it protects children. The law’s aim is often pragmatic. It looks to who needs support. It looks to fairness. A child should not be punished for the marital choices of parents. Laws now favor the child’s right to support and inheritance.
Second, it changes estate planning. People must write clear wills. They must name dependants. They must be realistic about obligations. A will that leaves a child out entirely can spark litigation. Litigation is expensive. It also risks upsetting the testator’s intentions. Good estate planning reduces those risks.
Practical advice for Alberta residents
- If you are a parent Make a will. Say who your children are. Use clear language if you intend to exclude someone. Explain your reasons in a private letter. That letter is not binding. But it can help if a court weighs intentions.
- If you are a child born outside marriage Get documentation. Birth certificates, registration records, DNA where appropriate, and any acknowledgements from the parent all help. If you have been financially dependent on the parent, keep records. Legal help will guide you on proof and timing.
- If you are an executor Do not assume a simple family tree. Check the deceased’s records. Look for registrations, notes, or informal acknowledgements. Deal with claims promptly. Remember that intestacy rules may apply if a will is invalid or incomplete.
- If you are a lawyer advising clients Be clear on the provincial statute. In Alberta that is the Wills and Succession Act and related regulations. Counsel clients on the real risk of variation claims. Draft wills that address family realities.
A few myths, debunked
- Myth: “Children born outside marriage are illegitimate and cannot inherit.” Not true. Modern law treats them as heirs. Statutory reforms and case law have removed most inheritance disabilities. (alri.ualberta.ca)
- Myth: “If a child is not in the will they get nothing.” Not always. Dependants may seek relief. Intestacy rules may apply. The specifics depend on the circumstances.
- Myth: “Acknowledging a child is irrelevant.” Wrong. Acknowledgement can simplify matters. It can avoid litigation. It can make the process smoother.
Where to look for authoritative guidance
Two reliable starting points are helpful for Alberta readers. First, the Wills and Succession Act sets out the basic statutory framework governing wills and intestate succession in Alberta. It consolidates key topics like who inherits and how estates are administered. For an overview of that statute, the Alberta government’s consolidation is useful. (open.alberta.ca)
Second, historical and reform analyses are useful to understand the shift away from the concept of illegitimacy. The Alberta Law Reform Institute has written on the topic and provides context for legislative changes and policy choices. That paper shows how the law evolved and why the old categories were abolished. (alri.ualberta.ca)
Final thoughts
Labels matter in language. They do not matter in modern succession law. If you worry about inheritance or your rights, get legal advice early. Make a will. Name your dependants. Keep records. Courts will look at facts and statutes. They will not punish a child for the marital status of parents.
Estate planning is about more than tax. It is about fairness. It is about clarity. It is also about care. At Faber LLP in Edmonton we help clients plan estates that reflect their intentions and protect families. Visit FaberLLP.ca for more on our services and for contact details.
- References
- Wills and Succession Act, Alberta; consolidation and summary information published on Open.Alberta.ca. open.alberta.ca
- Alberta Law Reform Institute, report on Illegitimacy and succession law reforms. alri.ualberta.ca