The Nebraska Supreme Court holds that a child can inherit from a parent under the state’s intestacy rules even though the parent’s rights were terminated. In re Estate of McCormick (Neb. No. S-23-726, October 31, 2024).
Brent McCormick died unmarried and intestate. He had one biological child, Beth Roberts, with his paternity established by adjudication. However, his parental rights had been terminated. His daughter was never adopted by another parent.
Mr. McCormick’s sister-in-law, Tracy McCormick, petitioned for formal probate and requested to be the personal representative of his estate. Her petition excluded Ms. Roberts, only listing Mr. McCormick’s father, mother, and brother as the known heirs and interested parties.
Following an objection from Ms. Roberts, the County Court determined that Ms. Roberts could inherit from her biological father’s estate. It noted that she had not been adopted, so she was not barred from inheriting under case law. The court also found that while Nebraska law prohibits a parent from inheriting from a child after a termination of parental rights, it does not bar the child from inheriting from the parent.
On appeal, the Nebraska Supreme Court considers whether a biological child can inherit under the intestacy statutes from a parent whose rights were terminated.
Under the Nebraska Probate Code, when an intestate person is unmarried, the estate goes to their issue. The issue is all lineal descendants of all generations, including children of the decedent. The Code states that an individual born out of wedlock is a child of the father when established by adjudication. Since the district court adjudicated Ms. Roberts to be the daughter of Mr. McCormick, they have a parent-child relationship for intestate succession.
The highest court of Nebraska next focuses on the effect of the termination of parental rights.
Although Nebraska Statute Section 30-2309 states that the parent cannot inherit after a termination of rights, it is silent on whether the child can still inherit from the parent.
Section 43-293 provides that a termination of parental rights does two things. First, it divests the parent and juvenile of all legal rights, privileges, duties, and obligations with respect to each other. Second, it deprives the parent of the right to inherit from the child. If the first provision encompassed inheritance rights, then the second provision would be unnecessary. The legislature’s inclusion of the second provision shows that it intended to allow children to inherit from their biological parents following a termination of parental rights.
Even though the termination statutes do not state outright that a child retains the right to inherit, the omission sufficiently evinces its intent. The omission is enough even when another statute, Section 43-106.01, explicitly preserves a child’s inheritance rights in the context of the relinquishment of parental rights.
Ms. Roberts may inherit from her father as his issue under Nebraska’s intestacy rules. The Nebraska Supreme Court affirms the lower court’s order.
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