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No. 3-00-0724

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE McDADE delivered the opinion of the court:

FACTS

Christina and Randy began living together in August of 1997. Shortly thereafter, the two moved to the State of Virginia. Theycontinued to live together and maintain a conjugal relationship. In October of 1997, Christina became pregnant. The couple thenreturned to the State of Illinois, where they awaited the birthof their child.

Following their return to Illinois, Christina and Randycontinued to live together, but never married. They receivedemotional support from their respective families, participated insocial events as a couple, and held out to their families andfriends that Randy was the father of Christina's baby. Alsoduring that time period, neither Christina's nor Randy's familydisputed Randy's paternity of the developing fetus.

On May 26, 1998, when Christina was approximately eightmonths pregnant, she was involved in a head-on automobilecollision. Her injuries were fatal, and she was pronounced deadat 7:33 a.m. A caesarean section was performed at 11:20 a.m.,and a stillborn child was delivered. Although the child waspronounced dead at 11:20 a.m., Randy christened her Madison RaePoole and took photographs with her at the hospital.

The Clausen family allegedly acknowledged Randy as thebiological father of Madison. They invited him to participate inthe selection of the baby's name (which included his surname) andagreed to listing Randy as the father on the fetal deathcertificate issued by the medical examiner. In addition, theobituary for Madison identified Randy as a survivor.

Debra filed a petition with the Putnam County circuit courtfor letters of administration for the estate of Madison on orabout September 9, 1998. She had apparently been negotiating asettlement regarding the wrongful death of Madison, although shedoes not appear to have filed an action. Debra attached anaffidavit of heirship to the petition, stating that she and JohnClausen were the maternal grandparents of Madison and that theywere the only persons entitled to administer her estate. Randyasserts that he was unaware at that time of any negotiationsregarding Madison's wrongful death or of the petition filed byDebra.

On October 1, 1998, the circuit court of Putnam Countyentered an order appointing Debra administrator and directingthat letters of administration be issued to her for Madison'sestate. On November 8, 1999, Debra filed a petition for an orderallowing her to execute settlement documents and to distribute toheirs at law. According to the petition, Country Companies hadagreed to pay $70,000 (minus expenses) to Madison's estate. Debra was seeking to have the settlement approved by the courtand to distribute the settlement funds to John, herself, andMadison's two maternal aunts.

Randy received notice of the hearing on the petition filedby Debra. He responded by filing an affidavit of parentage, inwhich he explained his relationship with Christina and thecircumstances of Madison's conception. Randy also filed apetition requesting revocation of Debra's letters ofadministration based on the fact that he, as Madison's biologicalfather, had priority.

Debra filed an objection to Randy's petition to revoke herletters of administration. In her objection, she stated, inessence, that Randy was not an "eligible parent" under thestatute governing inheritance from an illegitimate child. Inaddition, Debra alleged that the Illinois Parentage Act of 1984(750 ILCS 45/1 et. seq. (West 1998)) contained the exclusivemethod of establishing paternity and that Randy could notestablish paternity pursuant to that Act.

Eventually, Randy filed a second amended petition. (Theoriginal and first amended petitions were dismissed by the trialcourt due to insufficiency of the pleadings.) In the secondamended petition, Randy contended that, if he were not aneligible parent, Christina could not be an eligible parent underthat statute either. Therefore, the proceeds of Madison's estatewould have to be distributed as though both parents hadpredeceased her. This petition was again denied, and Randy fileda motion to reconsider on July 6, 2000. The motion forreconsideration was denied, and Randy appeals.

ISSUES

In his appeal, Randy has asked this court to determine: (1)whether the trial court erred in deciding that the father of anillegitimate, stillborn child has no interest, standing, orpriority to request the removal of an administrator from theestate of his biological child; and (2) whether the statutegoverning inheritance from an illegitimate child isunconstitutional because it treats biological fathers ofillegitimate children differently than biological mothers ofthose same children and, therefore, the trial court erred infinding that the biological father of an illegitimate child, assole surviving heir, is not entitled to recover for the wrongfuldeath of his child. Review of the trial court's order involvesthe construction of statutes, and therefore, the standard ofreview for this court is de novo. Woods v. Cole, 181 Ill. 2d512, 516 (1998).

ANALYSIS

Randy argues that the trial court erred in determining thathe had no interest, standing, or priority to request the removalof Debra as administrator of Madison's estate. He claims that hehas both status and priority as Madison's biological father andnearest kin. Debra has countered by arguing that, since Randy isnot an "eligible parent" under the statute governing inheritancefrom an illegitimate child, he similarly lacks the status to bean administrator of the estate. Both of these issues assume theexistence of an estate.⁽¹⁾

Rights of the Father of an Illegitimate, Stillborn Child

Randy argues that the trial court erred in determining thathe had no interest, standing, or priority to request the removalof Debra as administrator of Madison's estate in this case. First, Randy argues that he has a statutory priority in thegranting of letters of administration under section 9--3 of theProbate Act of 1975 (755 ILCS 5/9--3(West 1998)), which providesin pertinent part:

"Persons entitled to preference inobtaining letters. The following persons areentitled to preference in the following orderin obtaining the issuance of letters ofadministration***:

* * *

(e) The parents or any person nominatedby them.

* * *

(g) The nearest kindred or any personnominated by them.

By the plain language of this statute, it would appear thata biological parent (subsection e) would have a preference over agrandparent (subsection g) for letters of administration. Theoriginal question before the trial court was whether Randy shouldhave had priority over Debra for letters of administration of theestate of Madison. Based on the unambiguous statutory language,it certainly appears that Randy's petition for revocation of theletters of administration should have been granted.

However, Debra has argued that Randy is not an eligibleparent under a different section of the Probate Act which governsinheritance from illegitimate children. Therefore, she contendshe lacks standing to object to her appointment as administratorbecause he is not a parent as that term is used in the statute. She cites no authority for her personal conclusion that becausethe biological father of an illegitimate child cannot inherit, heis also precluded from serving as administrator.

Section 2--2 of the Probate Act of 1975 (755 ILCS 5/2--2(West 1998)) is the statute governing inheritance fromillegitimate children, and it provides as follows:

"Illegitimates. The intestate real andpersonal estate of a resident decedent whowas illegitimate at the time of death and theintestate real estate in this State of anonresident decedent who was illegitimate atthe time of death, after all just claimsagainst his estate are fully paid, descendsand shall be distributed as provided insection 2--1, subject to section 2--6.5 ofthis Act, if both parents are eligibleparents. As used in this section, 'eligibleparent' means a parent of the decedent who,during the decedent's lifetime, acknowledgedthe decedent as the parent's child,established a parental relationship with thedecedent, and supported the decedent as theparent's child.***

If neither parent is an eligible parent,the intestate real and personal estate of aresident decedent who was illegitimate at thetime of death and the intestate real estatein this State of a non-resident decedent whowas illegitimate at the time of death, afterall just claims against his or her estate arefully paid, descends and shall be distributedas provided in section 2--1, but the parentsof the decedent shall be treated as havingpredeceased the decedent." (Emphasis added)755 ILCS 5/2--2(West 1998).

Debra argues that under the plain language of thisprovision, Randy is not an eligible parent because Madison, thedecedent, did not have a lifetime so Randy could not acknowledgethe decedent as his child, establish a parental relationship withthe child, or support the decedent as his child during itslifetime. Although the statute requires a "lifetime" of thechild for the establishment of eligibility by both parents, Debrainsists that Christina could inherit from the estate of Madisonbecause a biological mother is naturally the mother of the unbornfetus and therefore satisfies the statutory requirements. Shemust, of necessity, be arguing that Madison had a "lifetime" inutero.

We note first that the language limits the definition of"eligible parent" to the particular section of the Act. We alsobelieve that Debra's analysis is flawed under the plain languageof the statute.

We start with the fact that the legislature specificallyredrafted the statute (see the next part of this opinion) to makeit gender neutral. By statutory design, if the mother canqualify as an eligible parent, a biological father could alsoqualify, despite the fact that he is not married to the mother. Certainly, the biological father could acknowledge the fetus ashis child during the term of the pregnancy. In addition, hecould establish a relationship with the child's mother andsupport the child by supporting the mother.

In this case, it appears that Randy could qualify as aneligible parent. He resided with Christina before and throughoutthe pregnancy, including moving with her to another state. Heprovided support (financial and emotional) to her and, throughher, to the unborn child, and he held himself out as the fatherof the child. Randy did everything possible to act as a parentto the unborn child. Any analysis which results in finding,based on these facts, that Christina was an eligible parent andRandy was not would necessarily lead to the conclusion that thestatute is gender biased, which is something the legislaturespecifically redrafted it to avoid.

Debra has also argued that Randy was only a potentialfather because Madison had not yet been born at the time of herdeath. Therefore, he did not have the requisite parentalrelationship to give him priority under the statute, because hehad no right to impede the exercise of the mother's choice toterminate the pregnancy prior to birth. Debra cited Roe v. Wade,410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), and Coe v.County of Cook, 162 F.3d 491 (7^th Cir. 1998), in support of herargument. Those cases dealt with the issue of abortion and areeasily distinguished from this litigation. Neither Roe nor Coedealt with the rights of a biological father to inherit from aviable fetus.

More pertinent to the issues in this appeal, in Seef v.Sutkus, 145 Ill. 2d 336, 583 N.E.2d 510 (1991), the IllinoisSupreme Court held that under the Wrongful Death Act, an unbornfetus was recognized as a person to the extent that a rebuttablepresumption for loss of society existed for the parents of astillborn child. The court recognized that Illinois law hasacknowledged that pecuniary losses encompass loss-of-societydamages for many facets of family relationships. The court,citing Chrisafogeorgis v. Brandenberg, 55 Ill. 2d 368, 304 N.E.2d88 (1973), found that the Wrongful Death Act gave parents theright to maintain an action for damages for the negligentlycaused death of a viable fetus. The court did not make anydistinction in either case between married and unmarried parents.

No such action was filed by any party in this case. However, by a fair reading of Seef and Chrisafogeorgis, abiological father of an illegitimate viable fetus would have aredressible claim as a result of the wrongful death of thatfetus. In this case, Christina was involved in a head-oncollision that was not, based on the information before thiscourt, any fault of her own. Therefore, Randy could have broughta Wrongful Death Act claim for the death of Madison in this case. We note for the record that we have found no case law which givessuch a right of action to grandparents such as Debra and JohnClausen.

If Randy had a legitimate wrongful death claim, it wouldappear that he, rather than the grandmother, would have priorityfor letters of administration for any estate created by advancingthat claim. The legitimacy of any such claim would, however, bedependent upon his ability to prove that he was the biologicalfather of Madison. Randy indicated in his brief that he couldprove paternity, but it does not appear that an evidentiaryhearing was held on this matter--perhaps because paternity hasnot been challenged. Therefore, the case must be remanded to thetrial court for an evidentiary hearing limited to determiningwhether Randy is Madison's biological father. If he is, theletters of administration should properly issue to him and not toDebra. Because the "fund" derives from a settlement of anonlitigated claim and not from a judgment, we make no finding asto its appropriate distribution.

Section 2--2 is Gender Neutral and Constitutional

Randy argued that section 2--2 of the Probate Act of 1975(755 ILCS 5/2--2 (West 1998)) is unconstitutional because ittreats biological fathers differently than biological mothers. Although we have already touched on this issue in arriving at ourdecision on the earlier question, we have decided, in theinterest of judicial economy, to address it in greater depth toprovide some direction with regard to who would be eligible toinherit from Madison's "estate."

An earlier version of section 2--2 of the Probate Act of1975 (755 ILCS 5/2--2 (West 1998)), providing that a biologicalfather of an illegitimate child could not inherit, was reviewedby the Illinois Supreme Court in In re Estate of Hicks, 174 Ill.2d 433, 675 N.E.2d 89 (1996). In Hicks, the court held that thestatute allowing only the mother and the mother's descendents toinherit from an illegitimate intestate who dies without asurviving spouse discriminated on the basis of gender andresulted in a denial of equal protection under the stateconstitution. Hicks, 174 Ill. 2d 433, 675 N.E.2d 89 (1996).

As a result of the Hicks decision, the Illinois legislatureamended the statute to the current form quoted above. From thelegislative history surrounding that revision, it is clear thatthe legislature was attempting to create a statute that wasgender neutral.

On its face, the statute seems to have succeeded inachieving gender neutrality. However, it does not appear to beapplicable to the situation presented before this court. Certainly, the statute clearly governs situations where theillegitimate child has actually been born and lived for a periodof time. We have been unable to locate any statutory or commonlaw governing inheritance from a viable fetus that is stillborn,nor have the parties cited any such authority. Therefore, we arereduced to construing this statute as if it covered the situationpresented.

In this case, it seems clear that neither parent can meetthe criterion of "during the decedent's lifetime." However, abiological father could acknowledge the viable fetus as his own,establish a relationship with it, and support the fetus throughhis support of the mother. Conceptually, if the biologicalfather has done these things, he would be as eligible as themother to inherit from an illegitimate viable fetus.

As we have previously discussed, Randy appears to meet theother criteria. He resided with Christina in both Illinois andVirginia before and during the pregnancy, he provided support(financial and emotional) to her, and he held himself out as thefather of the child. Indeed, both of them did. In addition, thematernal grandparents allegedly did not dispute his paternityprior to the accident. Randy was present when Madison wasstillborn, he helped name her, he was present when she waschristened, and he is identified as the biological father on thefetal death certificate. All of these facts reasonably lead tothe conclusion that Randy did indeed do everything he could toestablish a relationship with Madison. If the statute applied atall in this case, we believe it would apply equally to Randy andChristina. We do not find the statute to be unconstitutional onthe grounds of gender bias.

CONCLUSION

Based on the foregoing, the trial court erred in denying Randy's second amended petition to revoke the letters ofadministration. Therefore, the trial court's decision isreversed, and the case is remanded for a hearing with regard towhether Randy was the biological father of Madison. Once thatdetermination is made, the court can then make a rulingconsistent with this order regarding who is entitled to be issuedthe letters of administration for Madison's "estate" and todetermine the distribution of the settlement funds.

Reversed and remanded.

BRESLIN, J., concurs. HOLDRIDGE, J., specially concurs.

JUSTICE HOLDRIDGE, specially concurring:

I concur in the conclusion reached by the majority.⁽²⁾

1. Based on the briefs, it appears that Country Companiesissued a settlement check payable to the estate of Madison RaePoole as a result of settlement negotiations with Debra, withouta claim actually having been filed. The parties, at the requestof the court, filed supplemental briefs on the issue of a viablefetus's ability to have an estate. They argued that an estatefor Madison was created under the Wrongful Death Act (740 ILCS180/1 et. seq. (West 2000)) (Wrongful Death Act).

The Wrongful Death Act allows for the creation of an estateon behalf of a deceased person after an action has been filed,and either a settlement or judgment has been reached. In thiscase, we have neither a deceased person nor an action filed.

This court is familiar with the case law which allows aparent to file a cause of action for the wrongful death of aviable fetus (which is discussed later in this opinion). In suchcases, an estate may conceivably be necessary for purposes ofdistributing the money awarded under such a cause of action. However, we are not aware of any statutory or common law whicheither authorizes such a wrongful death action by a grandparentor allows for the creation of an estate for a viable fetus todistribute money paid as a result of negotiations regarding sucha claim. Therefore, no estate can be said to have been created byaction of law.

Nonetheless, it appears that, as a result of just suchnegotiations, a check has been issued payable to the estate ofMadison Rae Poole. Therefore, we are faced, as a practicalmatter, with the issues raised by the parties regarding who isentitled to administer the estate and who is entitled to share inits distribution.

2. The issue of a viable fetus's ability to have an estatewas never before this court. The majority, over my dissent,issued an order requesting the parties brief the issue. It wasmy position that this court did not need to address the issue inorder to rule upon the issues preserved for appeal. My positionhas not changed. Were the issue properly before this court, Ibelieve a strong argument could be made that the Wrongful DeathAct, 740 ILCS 180/1 et. seq (West 2001), necessarily includes aviable fetus as a person for whom an estate may be established.