30-2309. Meaning of child and related terms.

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person,

(1) an adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.

(2) in cases not covered by (1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

(i) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(ii) the paternity is established by an adjudication before the death of the father or is established thereafter by strict, clear and convincing proof. The open cohabitation of the mother and alleged father during the period of conception shall be admissible as evidence of paternity. The paternity established under this subparagraph (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.

Source

Annotations

Although subdivision (2) of this section applies specifically to children born out of wedlock, it applies a fortiori to children born in wedlock. This subdivision does not give illegitimate children rights of inheritance superior to those of legitimate children. Divorce proceeding may constitute a final adjudication of paternity within the meaning of subdivision (2) of this section. In re Estate of Trew, 244 Neb. 490, 507 N.W.2d 478 (1993).

A twice-adopted child may not inherit under the rules of intestacy from his first adoptive parent who has consented to the subsequent adoption and relinquished all rights of a parent in relation to that child. In re Estate of Luckey, Bailey v. Luckey, 206 Neb. 53, 291 N.W.2d 235 (1980).

Conflicting evidence of paternity does not prevent a trial court from determining heirs under subsection (2) of this section by clear and convincing evidence because the trial court deserves deference in weighing the credibility of the witnesses and deciding what evidence to believe. In re Estate of Brionez, 8 Neb. App. 913, 603 N.W.2d 688 (2000).

This section does not impose a written notice requirement on an objector. In re Estate of Brionez, 8 Neb. App. 913, 603 N.W.2d 688 (2000).

Under this section and the Nebraska Probate Code, an adopted child is an individual entitled to take as a child, and therefore an adopted child is included as a lineal descendant of its adoptive parent under the statutory definition of "issue." In re Estate of Hannan, 2 Neb. App. 636, 513 N.W.2d 339 (1994).