In re Estate of Murcury

In re Estate of Murcury  (2004-013); 177 Vt. 606; 868 A.2d 680

2004 VT 118

[Filed 13-Dec-2004]


                                 ENTRY ORDER
       
                                 2004 VT 118

                      SUPREME COURT DOCKET NO. 2004-013

                            SEPTEMBER TERM, 2004

  In re Estate of Alan B. Murcury     }   APPEALED FROM:
                                      }
                                      }
                                      }   Franklin Superior Court
                                      }          
                                          DOCKET NO. S458-02 Fc

                                          Trial Judge: Howard E. VanBenthuysen

       In the above-entitled cause, the Clerk will enter:

       ¶  1.     The question presented is whether a child born out of
  wedlock who seeks to inherit from a putative father is constitutionally
  entitled to establish paternity through genetic testing after the
  twenty-one year limitations period for the bringing of a parentage action
  has expired. We hold that the statutory limit offends neither the Vermont
  nor the United States Constitutions.  Accordingly, we affirm the superior
  court judgment.   

       ¶  2.     Decedent Alan B. Murcury died intestate on July 5, 2002. 
  One week later, petitioner  Robin Morris filed a petition in the Franklin
  Probate Court to open an intestate estate, alleging that he was decedent's
  son.  The probate court appointed petitioner's attorney as administrator of
  the estate.  Shortly thereafter, defendants Ann L. Newitt and Jane Murcury
  filed a motion for relief from judgment, alleging that they were decedent's
  sisters and that, to the best of their knowledge, decedent did not have any
  children.  Following a hearing, the court issued a written decision,
  granting the motion.  Although petitioner, then thirty-eight years old,
  introduced a birth certificate naming decedent as his father, the court
  noted that the information on the birth certificate came from petitioner's
  mother, who had never married decedent; that there was no evidence decedent
  had ever seen the birth certificate; that decedent had denied paternity in
  an Agreement and Release executed near the time of petitioner's birth; and
  that decedent had never openly acknowledged petitioner as  his child, or
  been adjudicated his father through a timely parentage action under 15
  V.S.A. § 302.(FN1)
   
       ¶  3.     Petitioner also requested an opportunity to obtain and
  present evidence of genetic testing of decedent's sisters to establish
  decedent's paternity.  The probate court ruled, however,  that 14 V.S.A. §
  553(b) provided the exclusive means of establishing paternity, and that the
  court was statutorily unauthorized to accept such evidence.  The statute
  provides, in pertinent part, that "[a]n illegitimate child shall inherit
  from or through his father as if born in lawful wedlock, under any of the
  following conditions: (1) The father has been declared the putative father
  of the child under 15 V.S.A. § 306; (2) The father has openly and
  notoriously claimed the child to be his own." In the absence of proof of
  either circumstance, the court concluded that petitioner had failed to
  establish a right to inherit as the nonmarital child of decedent.    

       ¶  4.        Petitioner appealed to the superior court on the question
  whether § 553 barred the introduction of genetic testing, and if so whether
  such a bar violated his constitutional rights. Petitioner subsequently
  filed two additional motions for genetic testing of decedent's sisters,
  which the court denied.  The parties then filed cross-motions for summary
  judgment.  In October 2003, the court issued a written decision, granting
  defendants' motion and denying petitioner's.  The court concluded that
  under § 553, proof that the decedent has either acknowledged paternity or
  been adjudicated the father through a timely action under 15 V.S.A. § 302,
  represent the exclusive means of establishing a nonmarital child's right to
  inherit, and that the statute violates neither the United States nor the
  Vermont Constitutions.  This appeal followed.  

       ¶  5.     Petitioner frames the issue on appeal as "[w]hether the
  preclusion of genetic testing evidence by 14 V.S.A. § 553(b) discriminates
  against illegitimate children in violation of" the United States and
  Vermont Constitutions. The actual issue is more limited, however, as the
  intestate-succession statute, § 553(b), plainly does not prohibit
  nonmarital children from obtaining court-ordered genetic testing to
  determine paternity.  Section 553(b)(1) provides that a child born out of
  wedlock may inherit from his or her father when there has been an
  adjudication of paternity under 15 V.S.A. § 306, and the paternity statute
  specifically authorizes the court to order "genetic testing for the
  determination of parentage." Id. §  304(a).  A parentage action may be
  commenced any time after birth but not later than three years after the
  child reaches the age of maturity, id. § 302(b), and may be brought by the
  child or on the child's behalf by a natural parent or a personal
  representative.  Thus, the effective window for the filing of a parentage
  action and motion for genetic testing by a nonmarital child is twenty-one
  years from the child's birth. Nothing in the statute, moreover, precludes
  the simultaneous filing of a timely probate petition and a posthumous
  parentage action, together with a motion for genetic testing of the
  deceased, where the putative father dies before the child has reached the
  statutory age limit. 

       ¶  6.     The more narrow question presented by this case, therefore,
  concerns the constitutionality of the statutory requirement that a
  nonmarital child who seeks to inherit from a putative father must establish
  paternity through a timely parentage action and motion for genetic testing
  before the child reaches the age of twenty-one.  Since petitioner was
  nearly thirty-eight years old when he filed the instant action, he is
  barred from establishing paternity unless - as he asserts - he is
  constitutionally entitled to a genetic determination of paternity beyond
  the statutory time limit.  In addressing this issue, we are guided by a
  line of United States Supreme Court decisions subjecting statutory
  classifications based on illegitimacy to a heightened level of scrutiny
  under the Fourteenth Amendment.  While not "suspect" or subject to the
  "most exacting scrutiny," Trimble v. Gordon, 430 U.S. 762, 767 (1977), such
  classifications must be "substantially related to permissible state
  interests."  Lalli v. Lalli, 439 U.S. 259, 265 (1978); see also Clark v.
  Jeter, 486 U.S. 456, 461 (1988) (classification based on marital status of
  child's parents must be "substantially related to an important governmental
  objective").  This has been characterized as "intermediate"  scrutiny under
  the categorical scheme utilized by the federal courts, see K. Hauser,
  Inheritance Rights for Extramarital Children: New Science Plus Old
  Intermediate Scrutiny Add Up to the Need for Change, 65 U. Cin. L. Rev.
  891, 909 (1997). 

       ¶  7.     The seminal Supreme Court decisions on the right of
  nonmarital children to inherit from their putative fathers are Trimble and
  Lalli.  Trimble invalidated an Illinois law that effected a complete
  disinheritance of children born out of wedlock who were not legitimated by
  the subsequent marriage of their parents.  Of the two interests advanced by
  the State, the Supreme Court held that the first - the promotion of
  "legitimate" family relationships - could not validly be accomplished by
  penalizing the children born of the relationship, and the second - the
  "orderly distribution of property at death" - could be accomplished by
  means short of a "complete exclusion."  Trimble, 430 U.S.  at 768, 771.  The
  Supreme Court was careful to point out, however, that problems of proving
  paternity "might justify a more demanding standard for illegitimate
  children claiming under their fathers' estates" than legitimate children,
  and acknowledged that the structuring of an "appropriate legal framework"
  for the "orderly distribution of property at death" was "a matter
  particularly within the competence of the individual States" and therefore
  entitled to "substantial deference."  Id. at 770-71. 

       ¶  8.     Just one year after Trimble, the high court was presented
  with just such a "legal framework."  The New York statute at issue in Lalli
  permitted nonmarital children to inherit from their fathers only if there
  had been an adjudication of paternity during the lifetime of the father.  A
  plurality of the Court upheld the scheme on the ground that it furthered a
  legitimate state interest in ensuring an accurate paternity determination
  in a judicial forum during the father's lifetime.  439 U.S.  at 271.  Four
  Justices dissented, arguing that the exclusion of a child - such as the
  plaintiff in Lalli - openly acknowledged by the decedent to be his own was
  unjustified by any state interest in the orderly distribution of estates. 
  Id. at 277-279 (Brennan, J., dissenting).  Two additional cases involving
  the rights of nonmarital children in a slightly different context are also
  of interest.  In Mills v. Habluetzel, 456 U.S. 91, 99-101 (1982), the
  Supreme Court invalidated a Texas statute providing that a paternity action
  by a nonmarital child for the purpose of obtaining child support must be
  brought within one year of the child's birth. The Court held that the
  one-year limit was unconstitutional in that it failed to provide a
  "reasonable opportunity for those with an interest in such children to
  assert claims on their behalf," and was not of sufficient length to further
  any state interest in avoiding "stale or fraudulent claims."  Id. at 99. 
  Pickett v. Brown, 462 U.S. 2, 18 (1983), decided the following year,
  invalidated on identical grounds a similar Tennessee statute imposing a
  two-year statute of limitations for paternity actions. 

       ¶  9.     Assessed in light of these decisions, Vermont's statutory
  scheme plainly meets federal constitutional standards.  Indeed, the means
  accorded nonmarital children to establish paternity in Vermont are broader
  than those provided under the New York statute upheld in Lalli in two ways:
  parentage actions may be commenced in some circumstances after the death of
  the putative father, and paternity may be independently established through
  proof that the father "openly and notoriously claimed the child to be his
  own." 14 V.S.A. § 553(b)(2).  This alternative means of proof was the  very
  method advocated by the Lalli dissenters as necessary to the New York
  statute's validity.  Petitioner argues, nevertheless, that the rationale on
  which the Court relied in Lalli  - ensuring accuracy by affording the
  putative father an opportunity to deny paternity in a judicial forum - does
  not apply to these additional methods.  This is correct, but irrelevant. 
  The state is obviously free to broaden the class of nonmarital children
  entitled to inherit where, as here, it has evidently determined that the
  State's interests in accuracy and fairness are adequately served.  As
  Justice Brennan observed, when a father has openly acknowledged a child to
  be his own, there is little "difficulty of proof [or] opportunity for fraud
  or error."  Lalli, 439 U.S.  at 279 (Brennan, J., dissenting) (internal
  quotation omitted).  Furthermore, the state's paramount interest in
  ensuring the support of a minor child by his or her natural parent amply
  supports a scheme that effectively permits a nonmarital child under the age
  of twenty-one to file a parentage action and probate petition upon the
  putative father's death, despite the difficult evidentiary issues
  (discussed more fully below) that may arise by suits instituted after a
  putative father's death.  See Mills, 456 U.S.  at 103 (O'Connor, J.,
  concurring) (state has strong interest in ensuring that natural fathers
  provide support for nonmarital children);  Lach v. Welch, 1997 WL 536330,
  at *7 (Conn. Super. Ct. 1997) (interest in providing financial support for
  minor child supported court's order granting nonmarital child's motion for
  exhumation of body of putative father for purpose of genetic testing). 
  Accordingly, there is no doubt that Vermont's statute passes muster under
  the federal constitution.(FN2)
        
       ¶  10.     Petitioner's principal argument is that advances in genetic
  testing have rendered obsolete any justification for a limit on the
  inheritance rights of nonmarital children based on an interest in
  preventing the bringing of stale or fraudulent claims.  Petitioner claims
  that genetic testing of the nonmarital child,  the putative father, or
  relatives of the father can establish to a statistical certainty the issue
  of paternity.  Thus, he asserts that the statutory time limit bears no
  "reasonable and just relation to the governmental purpose," as required by
  the Common Benefits Clause of the Vermont Constitution, and must be
  declared constitutionally invalid.  Baker v.State, 170 Vt. 194, 214, 744 A.2d 864, 879 (1999).  

       ¶  11.     In applying the Common Benefits Clause, we look to "that
  part of the community disadvantaged by the law," id. at 213, 744 A.2d  at
  878, "the significance of the benefits and protections" at issue, id. at
  214, 744 A.2d  at 879, whether the law promotes the government's objective,
  and whether it is significantly underinclusive or overinclusive.  Id. 
  Here, there is no doubt that the class of nonmarital children affected by
  the statute has long been subject to invidious discrimination, see Jeter,
  486 U.S.  at 461, and that intestate succession is a significant benefit. 
  See MacCallum v. Seymour's Administrator, 165 Vt. 452, 459, 686 A.2d 935,
  __ (1996) ("Although testators may make irrational and discriminatory
  choices in the distribution of their property, when the choice is made by
  the government, the obligation to afford all persons equal protection of
  the law arises.") (internal quotation omitted).  We also accept for
  purposes of decision petitioner's claims concerning the accuracy of current
  methods of genetic testing.  

       ¶  12.     We are not persuaded, however, that the statutory time
  limit fails, on balance, to promote reasonable and just governmental
  objectives.  The twenty-one year limit provides ample opportunity for a
  child or the child's representative to file a parentage action while
  simultaneously enhancing the likelihood that it will be brought during the
  putative father's lifetime.  We perceive several interests advanced by this
  policy, including the obvious one of ensuring the putative father's
  availability for genetic testing.  While the court may possess the
  authority to order genetic testing in a case where the putative father dies
  before expiration of the statutory limit by means of an order of
  disinterment if necessary, the State surely has a legitimate interest in
  seeing that such orders are not routinely required by establishing a
  statute of limitations that requires parentage actions while the putative
  father is likely to be alive.(FN3) "By tradition . . . the law does not
  favor removal or disturbance of a decedent's remains based upon a private
  right."  Camilli v. Immaculate Conception Cemetery, 583 A.2d 417, 418 (N.J.
  Super. Ct. Ch. Div. 1990).  The proper and orderly disposition of
  decedent's remains -  free from last-minute attempts to obtain a blood or
  tissue sample or subsequent applications to disinter the body - is a
  significant state interest served by the statute.
  
       ¶  13.     Petitioner claims that such unseemly expedients may be
  easily avoided through the testing of a decedent's relatives (petitioner
  here sought to test the decedent's two sisters), a procedure that 
  allegedly yields equally accurate test results.  Even assuming that
  petitioner's claim of accuracy is correct, and that a court could order the
  testing of decedent's relatives absent express legislative authority (FN4), 
  the argument overlooks two substantial countervailing interests.  First,
  compelled genetic testing of a decedent's living relative represents a
  substantial invasion of privacy. See William M. v. Superior Court, 275 Cal. Rptr. 103, 104 (Cal. Ct. App. 1991) ("given the substantial invasion of
  privacy occasioned by a compelled submission to" genetic tests, court
  construed statute authorizing genetic testing of mother, child and alleged
  father "as expressing a deliberate policy of limitation" precluding order
  requiring putative father's grandparents to submit to tests).  By requiring
  a paternity action and motion for genetic testing during the first
  twenty-one years of a child's life - when the putative father is more
  likely to be alive - the statute significantly limits the need to resort to
  such disfavored methods. 
  
       ¶  14.     Petitioner's argument also oversimplifies the potential
  evidentiary issues that might  arise in a parentage action. There may, for
  example, exist facts known only to the father that undermine the genetic
  test; he could claim that a brother with similar genetic markings is the
  true father; or that he was merely an anonymous sperm donor; or that his
  parental rights had been terminated years earlier in another jurisdiction. 
  Thus, even with advances in genetic testing it remains the case that the
  putative father's availability represents "a substantial factor
  contributing to the reliability of the fact-finding process."  Lalli, 439 U.S.  at 271 (internal quotations omitted).
        
       ¶  15.     Finally, by encouraging the identification of nonmarital
  children during the father's lifetime, the twenty-one year limit
  facilitates better informed estate planning (even in the absence of a will)
  and helps to avoid last-minute disputes and delays in estate administration
  - as this case aptly illustrates.  This objective is to be distinguished
  from the principle of "presumed intent" - the idea that intestate laws
  incorporate the rules of succession that a person would presumably wish for
  his or her property. See Trimble, 430 U.S.  at 775 n.16 (expressing "doubt"
  that state may constitutionally exclude nonmarital children from right to
  inherit based on theory of presumed intent); MacCallum, 165 Vt. at 458-59,
  686 A.2d  at 938 (rejecting presumed intent as basis for statutory exclusion
  of adopted children from right to inherit from collateral kin). Unlike
  Trimble, the statute at issue here does not effect a complete exclusion
  from inheritance rights based on an obsolete and discriminatory presumption
  that fathers prefer marital over nonmarital children.  It seeks, instead, a
  reasonably timely identification of nonmarital children who, once
  identified, may inherit equally with marital children under the statute. 
  By encouraging paternity adjudications during the putative father's
  lifetime, the twenty-one year limit furthers reasonable and just
  governmental objectives in a manner that does not unreasonably exclude
  persons outside its intended scope.  Accordingly, we discern no basis to
  invalidate the statute under the Common Benefits Clause, or to disturb the
  judgment of the trial court.

       Affirmed.                         

  BY THE COURT:


  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice
  
  _______________________________________
  Marilyn S. Skoglund, Associate Justice

  _______________________________________
  Paul L. Reiber, Associate Justice

  _______________________________________
  Frederic W. Allen, Chief Justice (Ret.),
  Specially Assigned


  ----------------------------------------------------------------------------
                                  Footnotes


FN1.  Section 302 provides, in its entirety, as follows:

         (a) An action to establish parentage in cases where parentage
       has not been previously determined either by an action under
       this subchapter or by adoption, may be brought by a child who
       has attained the age of majority; the personal representative
       of a minor child; a person alleged or alleging himself or
       herself to be the natural parent of a child or that person's
       personal representative if he or she is a minor, incompetent,
       or has died; or the office of child support when an
       assignment of the right to support is in effect pursuant to
       section 3902 of Title 33 or when a parent has applied for
       IV-D services.

         (b) An action to establish parentage may be brought at
       any time after birth, but shall not be brought later than
       three years after the child reaches the age of majority.

FN2.  Petitioner suggests in passing that the statute of limitations for
  bringing a parentage action is unconstitutionally truncated as applied to
  him, because 15 V.S.A. § 302(b) went into effect in 1984, when he was
  nineteen.  Petitioner overlooks the fact that the statutory predecessor to
  § 302(b), 15 V.S.A. § 331, enacted in 1967, generally authorized paternity
  actions against a putative father, and while it contained no specific
  limitations period, the general six-year statutory period would have
  applied.  See 1926-28 Op. Att'y Gen. 45 (opining that "proceedings in
  bastardy must be instituted within six years after the cause of action
  accrues").  Petitioner makes no effort to explain the failure to bring any
  action during this initial six-year period, or under the additional
  two-year period provided by the amended statute, or at any time during the
  next twenty years when his putative father was still alive and might have
  acknowledged paternity, or voluntarily submitted to genetic testing. 
  Accordingly, we discern no merit to the claim.    

FN3.  See In re Estate of Stowers, 678 So. 2d 660, 662 (Miss. 1996) (statute
  authorizing genetic testing of child, mother, or alleged father empowered
  court to order exhumation of decedent's body to determine whether he was
  father of nonmarital child seeking to inherit under intestacy statute);
  Batcheldor v. Boyd, 423 S.E.2d 810, 814 (N.C. Ct. App. 1992) (upholding
  order permitting exhumation of putative father's body to determine
  nonmarital child's right to inherit).