concurring:
I join in Judge PAIR’S opinion for the court. I write separately, however, to highlight a concern.
I agree that if a judicial or other formal proceeding were required, before the alleged father dies, to show that paternity “has been established,” D.C.Code § 19-316 (1981), many proper claimants would be denied their rightful inheritances. But I am concerned that the “preponderance of evidence” standard in D.C.Code § 16-909 (1981) may be low enough to invite baseless claims.1 Thus, the trial court may have a difficult task in consistently applying the District’s standard with the certitude required for a just result.
I would add my own understanding that, for a claimant to show by a preponderance of evidence that paternity “has been established,” he or she will have to demonstrate that the deceased, during his lifetime, openly, notoriously, and unambiguously acknowledged the child as his own. Absent a formal, pre-death determination of paternity, I see no room for a claimant to prevail solely on the basis of circumstantial evidence that does not include the deceased’s unequivocal acknowledgment of paternity.
. Compare New York EPTL § 4-1.2(a)(2)(C) (McKinney 1981), quoted in Estate of Kenny, 114 Misc.2d 203, 204, 450 N.Y.S.2d 1003, 1004 (Sur. 1982) (distributive status conferred on non-marital child if “paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own”).