In deciding the legitimacy of your offspring, it helps to define what you mean. Often times we throw around different legal terms without defining them, and this causes untold headache for people in family court cases. For the purposes of this article, we will make a difference between legal marriage (that certified by governing authority) and de facto marriage (any permanent sexual relationship between two members of the opposite sex). Legitimacy means that the government grants you tax deductions for having children under a government sanctioned marriage license.

An annulled marriage is one that the state government does not consider to have been legal or valid. This could be because the witnesses were not present, or it was performed by a none valid representative. The consequences may be a forfeiture of government tax benefits for the couple and their offspring. However, both parties can still be considered to have entered into de facto marriage if they have committed to each other and have been living together. In the legal tradition, the process of officiating marriages with a government license is relatively new. It dawned once the government got so large that certain demographics wanted it to cater to their particular interest group.

What should an individual do if they find themselves in this situation? Make sure that you know the difference between the official recognition of your marriage, and de facto personal acceptance of your marriage. The government only officiates legal marriages because they want to have financial influence over their citizen’s lives. Thomas Jefferson was once purported to have said, “A government big enough to give you everything you want, is strong enough to take everything you have.” The emotional validity of the marriage between you and your partner is not impacted by the government’s opinion about it. The same goes for your children. In contesting for the legal benefits that are given to officially approved marriages, recall that most marriages were common law until quite recently.

It is only of late that governments have taken to extending their fingers into the private pie of civil unions. This is a legitimate piece of historical evidence you can use to remind the court of the impropriety of the state mandating which of your children is valid or not in a taxation sense. You can also cite the 10th Amendment of the United States Constitution in your court case, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” If the government does not have official reason to decide the legal status of your children, then it is likely that the power to decide their legitimacy rests with you and your spouse.

Need more information? Speak to our NY matrimonial lawyers.

An annulment has no effect on the legitimacy of a child, born from a union. Children are legitimate, or illegitimate, based on their DNA and blood. The legitimacy of a child isn’t based on whether a marriage is annulled or not. Most of the time when an annulment is given, the children from the marriage are still considered legitimate.

In order for a child to be considered illegitimate, you need to be able to prove you aren’t the father/mother, of the child. If your spouse is able to prove that, by doing a DNA test – then the children may be illegitimate – in terms of child support, and child maintenance, payments.

If the spouse can prove the child wasn’t his, then the spouse may be able to avoid having to make any payments for the child. The marriage can be annulled, and the child will get no child support payments.

Would the Children Still Be His Heir If We Got an Annulment?

If you and your former husband get an annulment, it may have some effect on your estate plan as well as his. However, it doesn’t necessarily mean that your child will no longer be an heir or beneficiary. Let’s take a look at how property is passed down to help clarify estate planning after the end of a marriage.

Some Assets May Come With Beneficiary Designations

There are some assets that may allow a person to name a beneficiary regardless of the relationship between the two. Therefore, it may be possible for a child to be the beneficiary of an IRA account or money left in a 401k. It may also be possible for a child to inherit the cash value of a life insurance policy or a home that your former husband had a deed to.

A Trust May Be Created For the Child

If a former husband and your child had a good relationship, he may create a trust for that child. Like assets with beneficiary designations, assets passed down through a trust are not subject to probate. Therefore, it may be easy to transfer a baseball card collection, a coin collection or anything that your child had an attachment to without the threat of a legal challenge from other family members.

The Child May Also Be Kept in a Will

It is also possible that your child will still be part of your former husband’s will. However, the will needs to go through probate, which means it could be subject to a formal legal challenge. For instance, other children or other family members may try to claim that you coerced him to include your child even though there was no valid reason to after the annulment. While not all legal challenges are successful, the annulment could impact the child’s ability to be an heir to his estate.

Assets May Be Gifted Before Death

It is possible that assets are gifted to a child prior to your former husband’s death. This may be beneficial to him because it may lower his estate tax burden for other family members that he may be leaving behind. It may also help to improve his legacy prior to passing on. For the child, it may be beneficial because it becomes his or her property as soon as it is gifted. Therefore, it can’t be taken back or otherwise withheld from the child.

Once a marriage is dissolved, your estate plan needs may change. You may want to change beneficiary designations or rewrite your will to ensure that your former husband is no longer a part of it. However, you and your husband may still wish to leave assets to biological sons or daughters or any children who you or your husband considered to be your own.