The opinion
ALMA WILSON,
Justice, dissenting:
I concur in the views expressed in Justice Kauger’s dissent. I write separately to express my view that 84 O.S.1981, § 215 does not require a postmortem paternity proceeding. As the majority opinion states, § 215 provides four methods for proving the right to inherit from a father by a child bom out of wedlock. In interpreting the third method for proving the right to inherit in § 215(c), the Court today holds that paternity of the child born out of wedlock must be proved by clear and convincing evidence; and, that the elements specified in § 215(c) — “... (c) the father publicly acknowledged such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock ...” — must be proven by a preponderance of the evidence. This holding superimposes an additional, special burden upon the child born out of wedlock to produce clear and convincing evidence of paternity.
The clear legislative purpose of § 215 is to specify the requisites of paternity for purposes of inheritance by a child bom out of wedlock. Under § 215, paternity is grounded in the acts of the deceased wherein, during his lifetime, he verbally acknowledged the child as his and he assumed duties attendant to parenthood. The clear legislative intent of § 215(c) is to allow a child born out of wedlock to inherit from his/her father even though, during the lifetime of the father, paternity was not judicially determined nor acknowledged in writing, the father did not marry the mother, and, the father did not formally legitimate the child. Section 215(c) declares that a child born out of wedlock has a right of inheritance from a person who has publicly acknowledged the child as his child and has treated the child as his child. The elements of § 215(c) are the elements of paternity for purposes of inheritance. These elements must be proved by a preponderance of the evidence. The trial court order in this case is clearly contrary to law and should be reversed. Accordingly, I respectfully dissent and join in the dissent by Justice Kauger.
I am authorized to state that KAUGER, J. joins in this dissent.