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Children “Legally Recognized” in New York Fail to Inherit in Georgia

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APRIL 15, 2002 VOLUME 9, NUMBER 42
Paternity may be established a number of ways — through marriage, genetic testing, adoption. Paternity issues may color a will’s administration decades after a probate is filed.

Georgian Waldo DeLoache died in 1959. According to his will, the residue of Waldo DeLaoche’s estate was left in trust for his son, Mickey DeLoache. Mr. DeLoache’s will specified that if Mickey died childless, the estate was to be divided in half — 50% to his nieces and nephews; 50% to establish a charitable trust fund.

Mickey DeLoache and his first wife, Mary Brooke, underwent fertility treatment unsuccessfully; they had no children upon their divorce. Mickey’s second marriage, to Martha Whitehead in 1970, was also childless despite fertility treatment.

However, during Mickey’s third marriage — in which he remarried Martha Whitehead — a son, John, was born. John was born in April of 1983 following Mickey’s and Martha’s re-marriage in September of 1982. Martha had been pregnant when she re-married Mickey. John’s biological father was Charles Powers.

At the end of 1983, Martha learned that she was again pregnant. She and Mickey divorced in April 1984; in July,Martha married Charles Powers. In September 1984, Martha gave birth to her second son, Russell.

Mickey and Martha fought over visits and the boys’ last names. Mickey filed an action to compel Martha to use DeLoache as the boys’ last name and to clarify his visitation rights in New York in 1987. In 1990, the New York court found that the Mickey was John’s and Russell’s legal father, that Martha and Charles Powers were equitably estopped from challenging Mickey’s paternity, and ordered that the boys should be known as DeLoache-Powers. No determination of John’s nor Russell’s biological paternity was made in New York.

In 1992, Mickey died. The executrix of Waldo DeLoache’s will, Helen Blanchard, filed an action to determine what persons were to inherit. Ms. Blanchard and the DeLoache-Powers’ boys argued that as Mickey’s legal children, John and Russell were the only residual legatees. They claimed that Georgia law in 1959 recognized the inheritance rights of non-biological children, and that Georgia must accept the New York finding of Mickey’s paternity due to the Constitutional doctrine of full faith and credit. Although the Georgia District Court ruled in favor of the boys’ inheritance, the Eleventh Circuit reversed the ruling. (Blanchard v. DeLoache-Powers, 03/29/02)

The 11th Circuit reasoned that Georgia in 1959 recognized children as either biological or adopted; John and Russell had neither relationship to Mickey. Thus, it determined that the Georgia District Court mistakenly created a new legal definition for children that did not exist in 1959. The Circuit Court further opined that, since biological paternity was not determined in New York, that court’s ruling paternity ruling could not be given full faith and credit.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.