Avoiding Exhumation

Jun 03, 2014

OUTCOME: Settlement

I represented a family in a probate litigation case involving an illegitimate child. The illegitimate child was actually in his late 50's and it was there was a good chance that the illegitimate child ... was the decedent's biological child. The decedent had held the child out as a child enough that if he was a biological child, it was quite possible that he would be treated as a child under the Will. The wife of decedent and two legitimate children were my clients. There was no Will and therefore intestacy would allocate the estate 50% to wife and 50% to the decedent's children. It was a large estate so roughly 1/3rd of that 50% would have been a large amount. The illegitimate child proposed exhuming the decedent to do a dna test. The decedent passed over a year prior so the idea of digging up their husband/father was horrifying to my clients. After several depositions, many discovery requests, and a few motions, the other side agreed to attempt to mediate the case. A date for exhumation was on the calendar for shortly after the mediation so the stakes were high to get the case settled. We were able to come to terms at mediation after about 7 hours and settled the case that day. Neither side was totally happy, as is usually the case when a case settles, but i think both sides were happy that there would be no exhumation. This was one of my first cases and I have been representing the family ever since.