852.05 Status of child born to unmarried parents for purposes of intestate succession.

(1) A child born to unmarried parents, or the child's issue, is treated in the same manner as a child, or the issue of a child, born to married parents with respect to intestate succession from and through the child's mother, and from and through the child's father if any of the following applies:

(a) The father has been adjudicated to be the father in a paternity proceeding under ch. 767 or by final order or judgment of a court of competent jurisdiction in another state.

(b) The father has admitted in open court that he is the father.

(c) The father has acknowledged himself to be the father in writing signed by him.

(2) Property of a child born to unmarried parents passes in accordance with s. 852.01 except that the father or the father's kindred can inherit only if the father has been adjudicated to be the father in a paternity proceeding under ch. 767 or by final order or judgment of a court of competent jurisdiction in another state or has been determined to be the father under s. 767.805 or a substantially similar law of another state.

(3)

(a) This section does not apply to a child who becomes a marital child by the subsequent marriage of the child's parents under s. 767.803.

(b) The status of a child born to unmarried parents who is legally adopted is governed by s. 854.20.

(4) Section 895.01 (1) applies to paternity proceedings under ch. 767.

History: 1979 c. 32 s. 92 (2); 1979 c. 352; 1981 c. 391; 1983 a. 447; 1993 a. 486; 1997 a. 188, 191; 2005 a. 216; 2005 a. 443 s. 265.

Although a paternity proceeding may not be maintained posthumously, sub. (1) does not deny equal protection or due process to posthumous nonmarital children. In re Estate of Blumreich, 84 Wis. 2d 545, 267 N.W.2d 870 (1978).

The court properly looked to extrinsic evidence to determine whether a signed letter constituted a reasonably clear and certain acknowledgment of paternity. C. R. v. American Standard Ins. Co. 113 Wis. 2d 12, 334 N.W.2d 121 (Ct. App. 1983).

One claiming to be a nonmarital child under sub. (1) must first prove that status and overcome any presumption of paternity in effect. In Matter of Estate of Schneider, 150 Wis. 2d 286, 441 N.W.2d 335 (Ct. App. 1989).

Section 893.88, limiting only an action for the establishment of paternity, does not preclude a motion for the purpose of determining paternity in a probate proceeding. DiBenedetto v. Jaskolski, 2003 WI App 70, 261 Wis. 2d 723, 661 N.W.2d 869, 01-2189.