Estate Planning for your Family in the Era of Online DNA Testing

 

This guest post is courtesy of Amanda Ash, Regent Law 3L:

          “Discovering your family history is a journey, and we’re here to guide you,” boasts DNA testing service Ancestry.com. Throughout history and literature, stories of long-lost heirs have captivated audiences. Today, with the rise of online DNA testing, these plots are increasing playing out in real life. A recent Wall Street Journal article highlighted how newly discovered relatives are disrupting long-settled estate and inheritance plans.   

          If you are handling an estate—or planning one—it’s important to understand how biology interacts with state law. In many jurisdictions, including Virginia, biology alone is rarely enough to substantiate an inheritance claim. Instead, inheritance depends on the law of the state where the decedent lived, the wording of any will, legally recognized relationships in effect at death, and strict timing requirements.

          Under Virginia law, when a decedent leaves a will, it controls the disposition of the estate. Vague terms like “child,” “descendent,” “issue,” and “issue of my body” create ambiguity that may open the door to claim by a relative unknown at the time of drafting. A best practice when drafting a will is to refer to heirs by full legal name and update the will when family circumstances change.

          If there is no will, the laws of intestate succession apply, and courts look to legally established relationships. Virginia law includes procedures for establishing paternity for children born out of marriage, requiring clear and convincing evidence. Such evidence may include the parent’s acknowledgement of the child or expert genetic testing weighed alongside other factors. Virginia also requires that claims of succession be filed within one year of the decedent’s death. In short, a previously unknown relative may be able to establish a claim, but many legal requirements must align for the claim to succeed.

Of special note when considering DNA results:

·        Adopted children have no inheritance rights from a biological parent because adoption severs the legal parent-child relationship (except in stepparent adoptions, where the birth parent remains a legal parent).

·        Children conceived with donated sperm are generally barred by contract from asserting inheritance claims through the donor.

·        Children whose parent’s rights were terminated may still inherit from the parent, but the parent cannot inherit from the child.

 

          In short, the best protection against unwanted surprises to your estate plan: draft a clear, specific will and update it as your circumstances evolve. Doing so ensures that your intentions are honored—even in a world where DNA testing continues to uncover unexpected branches on a family tree.