In Adkins v. McEldowney, 167 W. Va. 469, 280 S.E.2d 231 (1981), the Court observed: "Our Code, 42-1-5, restricts illegitimates' rights to a greater extent than the Illinois statute declared unconstitutional in Trimble, and so certainly the Supreme Court's rule forbids application of our statute." Id. at 471, 280 S.E.2d at 232-33.
The Adkins Court then applied the "doctrine of neutral extension," to permit children born out of wedlock to inherit from both mother and father. Id. at 469, 280 S.E.2d at 232, syl. pt. 2.
"Illegitimacy is a suspect classification entitled to strict scrutiny by our Constitution, art. III, § 17, and thus W.Va.Code, 42-1-5, as written, restricting inheritance by an illegitimate child to inheritance from his or her mother, is unconstitutionally discriminatory." Id. at 469, 280 S.E.2d at 231, syl. pt. 1.
In syllabus point three of Adkins, this Court explained:
Our legislature has manifested its intent to abrogate common law prohibitions against inheritance by . . .children born out of wedlock, and has given them rights of inheritance from and through their mothers. This, however, creates an impermissible discrimination that we, applying the doctrine of neutral extension, must remedy by requiring that Code, 42-1-5 be applied to permit . . . children born out of wedlock to inherit from both mother and father. 167 W. Va. at 470, 280 S.E.2d at 232, syl. pt. 3.
Recognizing the absence of any statutory guidelines for the determination of rights of a child born out of wedlock to inherit from his father, the Adkins Court suggested that "our legislature may want to provide a statutory scheme compatible with our holding today, outlining how illegitimate children may prove entitlement to inherit from their fathers. Until such time as it does, trial courts must evaluate each cause on a case-by-case basis." 167 W. Va. at 473, 280 S.E.2d at 233.