WILLS & ESTATES – Illegitimates claim to father’s property barred by SOL: Combs v. Mullins (COA 9/18/2009)

Combs v. Mullins
2008-CA-000776 9/18/09 2009 WL 2971636 DR pending

Opinion by Judge Moore; Judge Lambert concurred; Judge VanMeter dissented by separate opinion. The Court affirmed an order of the circuit court dismissing appellant’s claim for an interest in property filed over thirty years after his father’s death.

Appellant argued that Pendleton v. Pendleton, 560 S.W.2d 538 (Ky. 1977) (Pendleton II), holding KRS 391.090 (prohibiting an illegitimate child from inheriting from his father) unconstitutional, did not have a retroactive effect on the devolution of a title and that establishing a firm date for the application of retroactivity resulted in a violation of his federal equal protection rights and unjustifiably stripped him of his right to inherit from his father. The Court held that it was bound by the holding in Turner v. v. Perry County Coal Corp., 242 S.W.3d 658 (Ky. App. 2007), and Pendleton II, as the Court had considered whether to overrule Turner but the majority had refused to do so. Therefore, because the father died intestate in 1975, before the Pendleton II decision was rendered, title to the property properly passed to the legitimate children on that date and appellant did not inherit an interest in the property. Thus, the trial court properly dismissed the complaint.

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