(304) 523-2100 Huntington, WV

Recent Posts

View All Posts

Contact Today
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Jenkins Fenstermaker, PLLC

325 Eighth Street

Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

By Anna Melissa Price Of Jenkins Fenstermaker, PLLC on 07/16/2018
May a Child Inherit From a Parent in WV after Parental Rights Are Terminated?

In West Virginia (WV) as in many states, ownership of a decedent’s property often passes according to the terms in the decedent’s will. When the decedent did not leave a valid will, his or her property passes according to the law of intestate succession. In such cases, the property passes to the decedent’s child if there is no surviving spouse. But what happens if the decedent’s parental rights had been terminated? Can a child inherit from a parent in WV after the termination of parental rights? The West Virginia Supreme Court of Appeals recently answered that question in the negative.

How a Child May Inherit from a Parent in WV after Hall v. Hall

On May 11, 2018, the West Virginia Supreme Court of Appeals held in Hall v. Hall that a child may not inherit from a parent in WV where parental rights had previously been terminated and the parent died without a will. The court concluded that the termination of a father’s parental rights cut off the child’s right to inherit from the father who later died without a will. The court reached that conclusion by focusing on statutory definitions in the descent and distribution statutes. 

The Effect of Termination of Parental Rights in West Virginia

One legal consequence for children who are abused or neglected is that the parental rights of one or both parents may be terminated. The termination of parental rights may be voluntary, or it may be court-ordered. But the effect of termination of parental rights can be mixed.

When a court terminates parental rights, the affected parents essentially lose their rights to make decisions and spend time with the child although the court may require one or both parents to continue to pay child support. This is the case regardless of whether the termination was voluntary or involuntary. A continuing child support obligation of this nature terminates when the financial responsibility shifts to another, usually an adoptive parent.

Hall v. Hall and Whether a Child May Inherit from a Parent in WV by Intestate Succession after Termination of Parental Rights

In Hall v. Hall, the father voluntarily terminated his parental rights after he had been criminally charged with sexually abusing and neglecting his daughter. He later died in prison without a will. Because his parental rights had been terminated, the trial court distributed his estate to his parents, sister, and niece. 

The daughter filed suit, claiming she was the only living descendent and, therefore, the entirety of the estate should have passed directly to her under West Virginia’s intestate succession law. The trial court disagreed and granted summary judgment awarding the estate to the defendant parents, sister, and niece of the decedent. The decedent’s child appealed.

Why a Child May Not Inherit from a Parent in WV by Intestate Succession after Termination of Parental Rights

On appeal, the court turned to the laws on descent and distribution. The intestate succession statute, West Virginia Code § 42-1-3a, provides that where there is no surviving spouse, the decedent’s estate shall pass to his or her descendants by representation. West Virginia Code § 42-1-1(5) defines “descendant” to mean descendants of “all generations with the relationship of parent and child at each generation being determined by the definition of a child and parent contained in this code.” 

The appellate court construed “relationship of parent and child” in the definition of “descendant” to require the child to show the satisfaction of both “parent” and “child” somewhere in the West Virginia Code. 

The court found no relevant definition of “child” in the code that did not limit the term to a person under the age of majority. The court then turned to the definition of “parent” in West Virginia Code § 42-1-1(26), which is defined as one who would inherit from a child if the child died without a will. 

Applying these definitions to the facts in Hall, the court held that the father was not the child’s “parent” because his parental rights had been terminated. Because father did not qualify as a “parent” under West Virginia law, the child had not shown “a relationship of parent and child” as required by the intestate succession statute. Therefore, the court held that the child was not a “descendant” entitled to father’s estate under West Virginia Code § 42-1-3a. 

Implications of Hall on the Inheriting from an Intestate Parent in WV after Termination of Parental Rights

The steps of the court’s reasoning in Hall make sense, but the ultimate holding seems inconsistent with other treatment of a child following the termination of parental rights. 

As the dissent pointed out and the majority acknowledged, West Virginia law allows a court to order a parent whose parental rights have been terminated to continue to pay child support. In essence, then, a child may be entitled to child support but not to inherit from an intestate parent following the termination of parental rights.

This perceived inconsistency may initially appear to be unimportant because the facts in Hall seem like an esoteric case unlikely to recur. But the holding could affect the inheritance rights of biological children across West Virginia. The opioid epidemic is currently ravaging the state. As a result, thousands of children are displaced, and the government systems created to ensure their welfare are severely burdened. 

It is a tragic but common pattern that addicted parents who lose their children have little ability to control their addictions. As such, death by overdose is more likely after a parent’s parental rights have been terminated. Many children could be affected by this decision if the West Virginia Legislature fails to enact a statute that expressly gives children the right to inherit from intestate parents following the termination of parental rights. 

Do You Have Questions about How to Inherit from a Parent in WV after Termination of Parental Rights

For experienced and insightful legal advice on your wills, trusts, and estates needs, including whether a child may inherit from a parent in WV, call Anna M. Price at Jenkins Fenstermaker, PLLC. For more information or for a consultation, contact Anna using her online contact form or call her today at (304) 523-2100 or toll free at (866) 617-4736.