Paternity may be established a number of ways — through marriage, genetic testing, adoption. Paternity issues may color a will’s administration decades after a probate is filed.

Georgian Waldo DeLoache died in 1959. According to his will, the residue of Waldo DeLaoche’s estate was left in trust for his son, Mickey DeLoache. Mr. DeLoache’s will specified that if Mickey died childless, the estate was to be divided in half — 50% to his nieces and nephews; 50% to establish a charitable trust fund.

Mickey DeLoache and his first wife, Mary Brooke, underwent fertility treatment unsuccessfully; they had no children upon their divorce. Mickey’s second marriage, to Martha Whitehead in 1970, was also childless despite fertility treatment.

However, during Mickey’s third marriage — in which he remarried Martha Whitehead — a son, John, was born. John was born in April of 1983 following Mickey’s and Martha’s re-marriage in September of 1982. Martha had been pregnant when she re-married Mickey. John’s biological father was Charles Powers.

At the end of 1983, Martha learned that she was again pregnant. She and Mickey divorced in April 1984; in July,Martha married Charles Powers. In September 1984, Martha gave birth to her second son, Russell.

Mickey and Martha fought over visits and the boys’ last names. Mickey filed an action to compel Martha to use DeLoache as the boys’ last name and to clarify his visitation rights in New York in 1987. In 1990, the New York court found that the Mickey was John’s and Russell’s legal father, that Martha and Charles Powers were equitably estopped from challenging Mickey’s paternity, and ordered that the boys should be known as DeLoache-Powers. No determination of John’s nor Russell’s biological paternity was made in New York.

In 1992, Mickey died. The executrix of Waldo DeLoache’s will, Helen Blanchard, filed an action to determine what persons were to inherit. Ms. Blanchard and the DeLoache-Powers’ boys argued that as Mickey’s legal children, John and Russell were the only residual legatees. They claimed that Georgia law in 1959 recognized the inheritance rights of non-biological children, and that Georgia must accept the New York finding of Mickey’s paternity due to the Constitutional doctrine of full faith and credit. Although the Georgia District Court ruled in favor of the boys’ inheritance, the Eleventh Circuit reversed the ruling. (Blanchard v. DeLoache-Powers, 03/29/02)

The 11th Circuit reasoned that Georgia in 1959 recognized children as either biological or adopted; John and Russell had neither relationship to Mickey. Thus, it determined that the Georgia District Court mistakenly created a new legal definition for children that did not exist in 1959. The Circuit Court further opined that, since biological paternity was not determined in New York, that court’s ruling paternity ruling could not be given full faith and credit.