Joseph James Regalado received a fifteen million dollar settlement from the City of Chicago in 2000 and died intestate in 2004. Because he left no surviving spouse or issue, his estate is to be distributed to his surviving parents, brothers, sisters, and issue of his deceased brothers and sisters. Victor Regalado, Joseph’s brother, now appeals the Porter Superior Court’s determination on summary judgment that Paula Heffelfinger is Joseph’s half-sister. Joseph’s father married Paula’s mother in 2003, thirty-five years after Paula’s birth. When the marriage was annulled in 2005, Joseph’s father acknowledged Paula to be his biological child.
At issue is whether Indiana Code section 29-1-2-7(b), which governs the paternal inheritance to, through, and from a child born out of wedlock, applies to Paula such that she is an heir to Joseph’s estate. Specifically, subsection (b)(4) of the statute provides that a child born out of wedlock shall be treated as if the child’s father were married to the child’s mother at the time of the child’s birth if the putative father marries the mother of the child and acknowledges the child to be his own. We hold that a child must show she is a child born out of wedlock before Section 29-1-2-7 is applicable and that there is a genuine issue of material fact as to whether Paula is a child born out of wedlock. We also hold that Joseph’s father’s acknowledgment of Paula as his biological daughter in the Agreed Order of Annulment does not preclude Joseph’s father or any other heir from challenging his paternity of Paula. We thus conclude that the trial court erred in granting summary judgment in Paula’s favor. We reverse and remand.
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Paula’s summary judgment motion sought a determination of her legitimacy as an heir to Joseph’s estate as his half-sister. The burden of proof rests on Paula as a child who alleges that she is an illegitimate child entitled to inherit from or through her putative father. See Green v. Estate of Green, 724 N.E.2d 260, 264 (Ind. Ct. App. 2000). Paula contends she has met this burden by showing that Baltasar married her mother Carmen and acknowledged Paula as his biological child. Victor contends that such a showing is insufficient because she has not first shown that she is a child born out of wedlock.
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Under [Ind. Code § 29-1-2-7](b)(4), in order to inherit through the paternal side, a child born out of wedlock must show that the putative father married the mother of the child and acknowledged the child as his own. Thus, we determine whether Paula has met her burden of proving that she is entitled to inherit from Joseph’s estate under subsection (b)(4).
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Here, the designated evidence shows that Baltasar identified Paula as Joseph’s sister in his unsworn July 2003 Petition for Leave to Make Gifts in Guardianship and sworn October 2004 Petition for the Appointment of Administrator and for Supervised Administration. He also sent Paula a birthday card dated October 2003, which he signed, “YOUR DAD B.E.R.” And in Baltasar and Carmen’s November 2005 Agreed Order of Annulment, he acknowledged Paula as his biological daughter. We conclude that this designated evidence is sufficient to show that Baltasar acknowledged Paula as his biological daughter.
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. . . We [also] conclude that the plain language of Section 29-1-2-7 requires a child to show she is a child born out of wedlock.
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Paula has not designated evidence showing Carmen’s marital status at the time of Paula’s birth. As a result, she has not shown that she is a child born out of wedlock by virtue of the fact that her mother was unmarried at the time of her birth. This is not necessarily fatal to her claim of heirship, however. Because it is undisputed that Carmen and Baltasar were not married to each other when Paula was born, if Baltasar is Paula’s biological father, then Paula is a child born out of wedlock.
The designated evidence shows that Baltasar did not acknowledge Paula as his daughter until she was thirty-five years of age. Specifically, he identified Paula as Joseph’s sister in an unsworn July 2003 petition filed in Joseph’s guardianship and in a sworn October 2004 Petition for the Appointment of Administrator and for Supervised Administration of Joseph’s estate. Baltasar also sent a birthday card to Paula in October 2003, which he signed, “YOUR DAD B.E.R.,” and acknowledged Paula as his biological daughter in his and Carmen’s November 2005 Agreed Order of Annulment.
In addition to these acknowledgements, Paula designated a March 2007 Siblingship Report stating that Paula and [Joseph’s brother] Tony have a probability of relatedness of 98.1%. We conclude that the evidence designated is insufficient to prove as a matter of law that Baltasar is Paula’s biological father.
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We determine that there is a genuine issue of material fact as to whether Baltasar is Paula’s biological father and thus conclude that the trial court erred in granting summary judgment in Paula’s favor.
Reversed and remanded.
NAJAM, J., and BROWN, J., concur.