Michigan Court of Appeals Holds Out-of-Wedlock Children Not Heirs Under EPIC

On July 31st, 2014, the Michigan Court of Appeals held in a probate case that certain children born out of wedlock are not considered heirs under Michigan's Estates and Protected Interests Code (EPIC).  

In In re Casey Estate, Docket No. 314209, the Michigan Court of Appeals addressed the legal question of whether certain children born out of wedlock as the result of an extramarital affair may be considered heirs or interested persons under Michigan law.

The Court first recited the facts of the case.

This is an inheritance dispute between the natural children of Everett and Mary Alice Casey, Kathryn and Kirk Casey, and Renee and Bruce Keene, who claim to be the offspring of Everett and their mother’s (Corinne Keene) adulterous affair in the 1960’s. Both Everett and Corinne were separately married during their alleged affair. In these consolidated appeals, appellants, Renee and Bruce Keene, appeal as of right the order granting summary disposition in favor of appellee, Kathryn Casey. Ms. Casey filed three separate motions for summary disposition below and argued: (1) neither Renee nor Bruce were interested persons or heirs of the decedent; (2) the decedent’s 1997 will is valid and unrevoked; and (3) the decedent did not gift the contents of the safe located at his company’s office to Bruce before his death. Renee and Bruce challenge the probate court’s determination that they are not interested persons or heirs of the decedent. Bruce also challenges the probate court’s determination that decedent did not gift the contents of his safe to him. We affirm.

The decedent, Everett Casey, and his wife Mary Alice, who predeceased him, had two marital children, Kathryn and Kirk Casey. During the latter part of decedent’s lifetime, Bruce worked for the decedent’s company, Precision Standard Inc. (PSI). In July 1997, the decedent executed a will and trust, naming in his trust Kathryn and Kirk as his only children. After the decedent’s death on March 24, 2012, Kathryn filed a petition for probate and sought to admit the decedent’s 1997 will to probate. Renee and Bruce filed demands for notice and objections to the petitions for probate, and claimed that the decedent was their biological father. Renee and Bruce alleged that the decedent and their mother, Corinne Keene, had an extramarital affair while she was married to Robert Keene, the man listed as Bruce’s and Renee’s father on their birth certificates. Robert Keene died in 1996, and Renee and Bruce did not seek to establish the decedent’s paternity until the present action.

The probate court issued a thorough written opinion and order granting Kathryn’s motions for summary disposition on the grounds that (1) Renee and Bruce were not interested persons, (2) the 1997 will was valid and unrevoked, and (3) no genuine issue of material fact existed that the decedent did not gift the contents of the safe to Bruce. The decedent’s 1997 will was admitted to probate and the court ordered an evidentiary hearing as to the amount of money in the decedent’s safe at the time of his death.

With respect to the interested person determination, the probate court ruled that MCL 700.2114(1)(b)(v) was inapplicable because the plain language of the statute requires an initial finding that Renee and Bruce were either born out of wedlock, or born or conceived during the marriage but were not the issue of the marriage before the court could make a natural parent determination under MCL 700.2114(1)(b)(v). The court reasoned that because Corinne and Robert Keene were married when Bruce and Renee were born, Robert Keene is the presumed father and [']there has been no determination that the children were not an issue of the marriage,['] and thus, Renee and Bruce were not interested persons.

The Court's analysis of whether the out-of-wedlock children were heirs or interested persons followed.

At the time of the decedent’s death in 2012, the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq. was in effect, and accordingly governs the question before us. See In re Adolphson Estate, 403 Mich 590, 593; 271 NW2d 511 (1978) ([']Determinations of heirs are to be governed by statutes in effect at the time of death, and an adoption statute in effect at the time of death is controlling.[']). That statute defines [']interested person['] – the category of people entitled to notice of probate proceedings – to include a child or heir, among others. MCL 700.1105(c). Because Renee and Bruce claim to be interested persons as the biological children of the decedent, the parties focused their attention on MCL 700.2114, which sets forth the framework for establishing the parent child relationship for purposes of intestate succession. That section provides in relevant part:

(1) Except as provided in subsections (2), (3), and (4), for purposes of intestate succession by, through, or from an individual, an individual is the child of his or her natural parents, regardless of their marital status. The parent and child relationship may be established in any of the following manners:

(a) If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession. A child conceived by a married woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. If a man and a woman participated in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage may be void, the child is presumed to be their child for purposes of intestate succession.

(b) If a child is born out of wedlock or if a child is born or conceived during a marriage but is not the issue of that marriage, a man is considered to be the child’s natural father for purposes of intestate succession if any of the following occur:


(v) Regardless of the child’s age or whether or not the alleged father has died, the court with jurisdiction over probate proceedings relating to the decedent’s estate determines that the man is the child’s father, using the standards and procedures established under the paternity act, 1956 PA 205, MCL 722.711 to 722.730.


(5) Only the individual presumed to be the natural parent of a child under subsection (1)(a) may disprove a presumption that is relevant to that parent and child relationship, and this exclusive right to disprove the presumption terminates on the death of the presumed parent. [MCL 700.2114 (emphasis added).]

As a preliminary matter, we recognize that the statute clearly provides that, for purposes of intestate succession, a child is to take from his or her natural parent, [']regardless of their marital status.['] MCL 700.2114(1). The statutory language also could not more clearly establish that the parents of children born during a marriage are presumed to be the natural parents of those children. MCL 700.2114(1)(a). The statute then provides that the parent child relation with the alleged natural parent can be established in a number of ways. Relevant to this case, the statute provides that (1) [']if['] a child is born or conceived during a marriage but is not issue of that marriage, then (2) the court can determine whether the alleged father is the child’s natural one under the procedures of the paternity act. MCL 700.2114(1)(b)(v). In other words, [']if['] a person can establish that he was born or conceived during a marriage but is not issue of that marriage (and therefore has disclaimed that the presumed natural father is not the natural father), the court can then proceed to the next step of DNA testing under the paternity act to determine whether the alleged father (here the decedent) is the natural parent of Renee and Bruce.

The Legislature’s use of the word [']if['] at the start of the subsection and the relevant clause is critical. The Random House Webster’s College Dictionary (2001) offers several definitions of [']if,['] the more pertinent being: [']1. in case that; granting or supposing that; on condition that[.]['] See Hottmann v Hottmann, 226 Mich App 171, 178; 572 NW2d 259 (1997) (a dictionary definition is appropriately used to construe undefined statutory language according to common and approved usage). Thus, the use of [']if['] in the first and second clauses of MCL 700.2114(1)(b) sets forth the alternative conditions upon which the rest of that subsection is premised. Absent satisfaction of one of those conditions, the remainder of subsection 2114(1)(b) does not come into play.

Under these provisions, a presumption exists that Bruce and Renee are the children of Corinne and Robert Keene, as they were married when Bruce and Renee were conceived (a fact established by their birth certificates). MCL 700.2114(1)(a). Because of that undisputed fact, Renee and Bruce established that they were born during a marriage. But what of the proof that they were not issue of that marriage? Bruce and Renee claim that DNA evidence purportedly showing that they are the biological children of the decedent accomplishes that task.

However, the plain language of MCL 700.2114(5) provides the exclusive means by which the presumption of natural parenthood set forth in MCL 700.2114(1)(a) may be overcome, and specifies that the only person holding the right to challenge the presumption is the presumptive natural parent, and the right to attempt to overcome the presumption ends when the presumed parent is deceased. Here, that person is Robert Keene. However, since Robert Keene has already died, the exclusive right to disprove the presumption that Renee and Bruce are his natural children has terminated. Accordingly, Renee and Bruce do not satisfy the express criteria of MCL 700.2114(1)(b). To hold otherwise would effectively allow an additional method to rebut the presumption of paternity provided in subsection 2114(5) and render the relevant portion of subsection 2114(1)(b) superfluous. That we cannot do. Turpening Estate, 258 Mich App at 465.

Before moving on, we make two additional points. First, appellants’ reliance upon In re Daniels Estate, 301 Mich App 450, 453-454; 837 NW2d 1 (2013), is of no moment. In that case our Court ruled that MCL 700.2114(1)(b) did not first require an underlying finding that a child is the biological child of the decedent before MCL 700.2114(1)(b)(i) through (vi) come into play. Id. at 459. That argument is not being made here. Moreover, the child in that case was undisputedly born out of wedlock. Id. at 452. Accordingly, one of the conditions of MCL 700.2114(1)(b) was satisfied before the Court proceeded to analyze MCL 700.2114(1)(b)(i) through (vi). In contrast, because Renee and Bruce cannot rebut the presumption of natural parentage of Robert Keene, we can proceed no further under subsection 2114(1)(b). Our holding is fully consistent with Daniels, and just as importantly, the statute.

Second, we reject Bruce and Renee’s assertion that the subsection of the statute allowing for testing under the paternity act (MCL 700.2114(b)(v)) to determine who the natural parent is would have no meaning if there was an initial requirement to show (under MCL 700.2114(b)) that the child was born out of wedlock (which presumably is accomplished by DNA testing as it is under the paternity act). What that argument glosses over is the different purposes of each showing. It is one thing to prove that a child’s presumed parent is not the natural parent; it is a wholly separate thing to prove that another person is the child’s natural parent. These are separate issues, and our reading of the statute is that the Legislature has conditioned proof of the former as being required before a child can proceed to proof of the latter.