Lowell v. Kowalski

• Decision Date: 14 May 1980
• Citation: 405 N.E.2d 135,380 Mass. 663
• Parties: Allyson Marie LOWELL 1 v. Sandra J. KOWALSKI, Administratrix. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 135

405 N.E.2d 135

380 Mass. 663

Allyson Marie LOWELL ¹ v. Sandra J. KOWALSKI, Administratrix. ²

Supreme Judicial Court of Massachusetts, Worcester.

Argued April 9, 1980.

Decided May 14, 1980.

David A. Wojcik, Ware, for plaintiff.

Allen Rubin, Worcester, for defendant.

Francis X. Bellotti, Atty. Gen., Linda-Marie Irvin, Asst. Atty. Gen., for the Attorney General, amicus curiae.

HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

WILKINS, Justice.

This action was commenced in a Probate Court seeking a declaratory judgment that the plaintiff Allyson Marie Lowell is the daughter of Francis R. Kowalski (Kowalski) and is entitled to share in the distribution of the assets of Kowalski's estate. Kowalski died shortly before the plaintiff's birth.

The judge found that Kowalski was the father of the plaintiff, that her parents never were married to each other, and that Kowalski had never been adjudicated to be her father under G.L. c. 273, § 12. The parties stipulated that Kowalski had acknowledged orally and in writing that he was the plaintiff's father. The judge ruled that under G.L. c. 190, § 7, the plaintiff was not entitled to inherit from her intestate father, and that § 7 did not deny the plaintiff's constitutional right to equal protection of the laws under art. 1 of the Declaration of Rights of the Constitution of the Commonwealth or under the Fourteenth Amendment to the United States Constitution. We transferred the plaintiff's appeal here on our own motion and now reverse that judgment.

The statutory right of an illegitimate child to inherit from his or her natural father differs from the statutory right of such a child to inherit from his or her mother. Under G.L. c. 190, § 5, ³ an illegitimate child is an heir of his or her mother and may inherit from and through her in the same manner as a legitimate child. On the other hand, under G.L. c. 190, § 7, ⁴ an illegitimate child may be treated as the legitimate child of his or her natural father, and thus inherit from him, only if the parents have intermarried and if the father either has acknowledged the child as his or has been adjudged to be the child's father in a proceeding under G.L. c. 273.

The administratrix of the father's estate, the Attorney General in his amicus brief, and the judge below have proposed a construction of § 7 that would eliminate the requirement of intermarriage of the parents as a precondition to inheritance from the natural father in the case of an adjudication of paternity. They read § 7 as allowing inheritance if there were either (a) parental intermarriage and acknowledgment, or (b) an adjudication of paternity. Their reading of § 7 does violence to the plain words of the statute. Relying on their illogical construction of § 7, the advocates of the statute argue that this court could hold, consistent with decisions of the United States Supreme Court, that § 7 does not violate the equal protection requirements of the Fourteenth Amendment. ⁵

In two recent decisions, the United States Supreme Court has addressed the right of an illegitimate child to inherit from his or her natural father. The Supreme Court, by a five-to-four vote, held invalid, on equal protection grounds, an Illinois statute that limited an illegitimate's right to inherit from her natural father to a situation in which the natural parents had intermarried and the father had acknowledged the child as his. Trimble v. Gordon, 430 U.S. 762, 771, 97 S.Ct. 1459, 1465, 52 L.Ed.2d 31 (1977). Conversely, that Court, again by a five-to-four vote, upheld a New York statute that limited an illegitimate child's right to inherit from her natural father to instances in which there had been a judicial determination of paternity. Lalli v. Lalli, 439 U.S. 259, 275-276, 99 S.Ct. 518, 528, 58 L.Ed.2d 503 (1978). ⁶

From these decisions, the argument is made that § 7, construed to allow inheritance when there has been a determination of paternity regardless of intermarriage, is constitutional. We need not resolve this question because (1) the plain words of § 7 do not support that interpretation, and (2) the requirements of the Equal Rights Amendment (ERA) to the Massachusetts Constitution are more stringent than the Fourteenth Amendment equal protection requirements. ⁷ We add that, if we were to consider § 7 on Federal equal protection grounds, we would expect that intermarriage as a precondition of parental acknowledgment would be unconstitutional under the reasoning of the Trimble case (see Lalli v. Lalli, supra at 266-268, 99 S.Ct. at 524-25) and that acknowledgment of paternity alone might be an acceptable condition under the Lalli case (id. at 272 n. 8, 99 S.Ct. at 526 n. 8). However, to accept a result that is constitutional just because it happens to coincide with the fact patterns of cases that have reached the Supreme Court might not be the fair and appropriate way to interpret § 7. A better solution would be to save such portions of § 7 as are constitutional or to fashion a new common law rule in the face of the unconstitutionality of § 7. Because of the controlling importance of the Massachusetts ERA, we turn to our primary consideration, whether the statutes concerning the inheritance rights of illegitimate children violate the State Constitution.

A statutory classification based on sex is subject to strict judicial scrutiny under the State ERA and will be upheld only if a compelling interest justifies the classification and if the impact of the classification is limited as narrowly as possible consistent with its proper purpose. Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, --- Mass. ---, --- ^a, 393 N.E.2d 284 (1979). Opinion of the Justices, 374 Mass. ---, --- ^b, 371 N.E.2d 426 (1977). Commonwealth v. King, 374 Mass. 5, --- - --- ^c, 372 N.E.2d 196 (1977). We conclude that the State does have a compelling interest in distinguishing the right of an illegitimate child to inherit from his or her natural father from the right of such a child to inherit from his or her natural mother, but that the statutory pattern is not properly confined to the fulfillment of that interest. Accord Trimble v. Gordon, supra 430 U.S. at 770-773, 97 S.Ct. at 1465-66. Cf. Succession of Brown, 379 So.2d 1172, 1177 (La.App.1980) (statute held invalid under State ERA that prohibits discrimination on the basis of birth).

Clearly, to differentiate between an illegitimate child's right to inherit it from his or her natural mother (under § 5) and that child's right to inherit from his or her natural father (under § 7) is to establish a classification based on sex. Cf. Caban v. Mohammed, 441 U.S. 380, 388, 99 S.Ct. 1760, 1766, 60 L.Ed.2d 297 (1979) (statute allowing unwed mother, but not unwed father, to block adoption of natural child created a sex-based classification that violated the equal protection clause of Fourteenth Amendment). Illegitimate children are included among the heirs of their mothers in all instances but are included among the heirs of their fathers only in limited circumstances.

When a person is adversely affected by the consequences of a statutory classification based on sex, that person may have standing to raise a constitutional challenge to that classification. The plaintiff in this case is asserting more than an adverse financial impact; she is litigating the issue of her status in the community. Such a "plaintiff's interest is not simply economic. (The p)laintiff has a separate, identifiable interest in not being treated by her government as a second-class person." Eskra v. Morton, 524 F.2d 9, 12-13 (7th Cir. 1975) (Stevens, J.). Thus, we hold that this plaintiff has standing to challenge the sex-based classification in § 7. Cf. Truax v. Raich, 239 U.S. 33, 38-39, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915) (allowing an alien to challenge a statute prohibiting his employer from retaining more than a certain proportion of alien employees).

We do not regard the statutory discrimination as being directed solely against natural fathers so that only they, and not their illegitimate children, properly may contest it. This is not just a case of a person asserting the constitutional rights of a third party. ⁷ The plaintiff is challenging the discriminatory impact of a sex-based classification which offers to an illegitimate child different and reduced prospects of inheritance from his or her father than from his or her mother. On the facts before us, this classification denies the plaintiff any right to inherit from her natural father, whereas, if the deceased parent had been female, the plaintiff would have inherited from her natural mother.

We consider then whether there is any compelling State interest in support of distinguishing between the right of an illegitimate child to inherit from his or her natural father and such child's right to inherit from his or her natural mother. The statutes extending rights of inheritance to illegitimate children were enacted to give rights to illegitimate children that they did not have at the common law. At common law an illegitimate child could inherit from no one. Vallin v. Bondesson, 346 Mass. 748, 750, 198 N.E.2d 191 (1964). If an illegitimate child's status as an heir could be ascertained with equal ease as to each natural parent, no statutory distinction between the two situations would be needed or could be justified. There is a difference, however, between establishing paternity and establishing maternity. See Lalli v. Lalli, 439 U.S. 259, 268-271, 99 S.Ct. 518, 524-26, 58 L.Ed.2d 503 (1977). A distinction between rights to inherit from a natural father and rights to inherit from a natural mother may properly be based on the greater difficulty of proving paternity than of proving maternity.

In Commonwealth v. MacKenzie, 368 Mass. 613, 334 N.E.2d 613 (1975), a case that involved a proceeding to establish the defendant's paternity, we concluded that a statutory distinction between...