dissenting.
I respectfully dissent.
The provisions of IND.CODE § 29-1-2-7(b) have not been sufficiently complied with. This statute provides in part:
"(b) For the purpose of inheritance to, through and from an illegitimate child, such child shall be treated the same as if he were the legitimate child of his father, if but only if, (1) the paternity of such child has been established by law, during the father's lifetime; or (2) if the putative father marries the mother of the child and acknowledges the child to be his own." (Emphasis added.)
The majority concludes that the statutory requirements have been satisfied, and it implies that a more restrictive construction *443of the statute would render it unconstitutional.
A statute is presumed to be constitutional and is entitled to every reasonable presumption supporting its validity. Bunker v. National Gypsum Co., (1982) Ind., 441 N.E.2d 8; Johnson v. St. Vincent Hospital, Inc., (1980) Ind., 404 N.E.2d 585. The presumption of this statute's constitutionality is not challenged by those now contesting its validity, and this issue is therefore not before this Court.
Assuming this issue was properly raised, the United States Supreme Court has upheld the constitutionality of a similar statute, requiring that legitimacy be declared by court order during the lifetime of the father. Lalli v. Lalli, (1978) 489 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 508. The Lal Court specifically held that:
"[Flew statutory classifications are entirely free from the criticism that they sometimes produce inequitable results. Our inquiry under the Equal Protection Clause does not focus on the abstract 'fairness' of a state law, but on whether the statute's relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment. The Illinois statute in Trimble was constitutionally unacceptable because it effected a total statutory disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage of their parents. The reach of the statute was far in excess of its justifiable purposes. Section 4-1.2 does not share this defect. Imheritance is barred only where there has been a failure to secure evidence of paternity during the father's lifetime in the manner prescribed by the State: This is not a requirement that inevitably disqualifies an unnecessarily large number of children born out of wedlock." (Emphasis added.) 489 U.S. at 273, 99 S.Ct. at 527, 58 L.BEd.2d at 514.
There is no reason to now conclude that IND.CODE § 29-1-2-7(b) would not be similarly construed.
The statutory language at issue requires that paternity be established by law during the lifetime of the father. This statute is in derogation of the common law, and must be strictly construed. Reger v. Reger, (1961) 242 Ind. 302, 177 N.E.2d 901. This Court has construed the contested provision as follows:
"[It was the intent of the legislature by the use of the phrase, 'establish by law', in Item 1 of the above-quoted subsection (b) to mean that the paternity of such child must be first determined in a judicial proceeding brought for that purpose in a court of law having jurisdiction to determine such issue, during the lifetime of the putative father, in order for an illegitimate child to inherit from such father. Acknowledgement alone no matter how positive or often is not sufficient under our present law." Thacker et al. v. Butler, Admr., et al., (1962) 184 Ind. App. 876, at 882-383, 184 N.E.2d 894, at 897. See also Burnett v. Camden, (1970) 258 Ind. 854, 254 N.E.2d 199, app. dismissed, cert. den. 899 U.S. 901, 90 S.Ct. 2202, 26 LEd.2d 556.
The mere admission of paternity through the signing and submission of a tentative order does not establish paternity as a matter of law under the analysis in Thacker. Furthermore, the important state interest in safeguarding the accurate and orderly disposition of decedents' estates could easily be frustrated by allowing proof of paternity through anything short of a judicial declaration or court order during the lifetime of the father.
The majority also seems to suggest that it is unfair to construe IND.CODE § 29-1-2-7(b) more restrictively than the paternity provisions contained in the juvenile code, IND.CODE §§ 31-6-6.1-1 to 81-6-6.1-19. I disagree. As stated in the majority's footnote 2:
"*... IG 29-1-2-7 has been described as a statute of succession, rather than a statute of legitimation. A. , B. , v. C. , D. (1971), 150 Ind.App. 585, 277 N.E.2d 599, 604. Statutes of legitimation permit a full declaration of legitima*444cy for all purposes, while statutes of succession simply allow a child to inherit as if legitimate although remaining 'illegitimate in social status.' 277 N.E.2d at 604. From 1831 until 1954 there was an Indiana statute of legitimation. However, the 1958 revision of the probate code eliminated the legitimation statute and replaced it with what is now denominated as IC 29-1-2-7. See also Acts 1953, c. 112, Section 207, Section 2501. The juvenile code also contains a section on paternity. IC 81-6-6.1-1 to 81-6-6.1-19. It provides for a determination of paternity as the necessary precursor to orders concerning support, visitation and custody. IC
The paternity provisions contained in the probate and juvenile codes clearly serve different purposes and should not be construed with reference to one another. This Court has specifically held that:
"We do not view the Probate Code and the paternity statute as being in pori materia. While it is true they both deal with illegitimate children, and to that extent both deal with the same subject matter, the Probate Code, and § 6-207 in particular, deals with illegitimate children as heirs, while the paternity statute deals with them as minor wards of the state in need of the support of their natural fathers for their own well being and to prevent them from becoming dependent upon the community. Schultz v. Celebrezze, 267 F.Supp. 880, 881, 885 (N.D.Ind.1967) Hahn et al. v. Moore, 127 Ind.App. 149, 158, 169, 188 N.E.2d 900, 134 N.E.2d 705 (1956) (Transfer denied).
* * L # # *
[Statutes which provide for suits against putative fathers to obtain support, care and maintenance have nothing to do with inheritance rights. The obvious corollary is that statutes relating to proof of heirship and inheritance rights have nothing to do with suits against putative fathers to obtain support for illegitimate children." (Emphasis added.) Solomon v. Fenton, (1969) 144 Ind.App. 100, at 104-105, 244 N.E.2d 228, at 231.
The case at bar does not involve the question of whether a child is being deprived of support from his father, to which he is entitled under Title 81. Instead, it concerns the statutory devolution of $8,500 as a family allowance under IND.CODE § 29-1-4-1. It is not unfair to deny this award in light of the fact that minor children may seek support through a deceased father's social security entitlements by proving paternity within five months of the father's death.
Any alleged deficiencies in regard to this statute must be resolved by the Indiana Legislature.
The decision of the trial court should be reversed.