As a NY estate lawyer the estate laws never cease to both intrigue and impress me. For instance, what happens when a testator draws up a will and has more children later on in life? Any child that you have after you execute a will is called an afterborn child.

While a parent in NYS is under no obligation to leave any part of his or her estate to his or her children, the law takes into consideration certain instances where that would be unfair. Keeping in mind your Last Will and Testament is exactly that, your last will and testament and embodies all of your wishes as to who will receive the bounty of your estate when you pass. But what does the NY estate law say about children who were not accounted for in a will because they had yet been born?

Well, thankfully the NY estate law takes a very pragmatic approach to this problem. According to EPTL 5-3.2, the body of estate law encompassing this issue, a child born after the execution of a will is entitled to take his share of the decedent’s estate even though he was not in the will. This is knows as the Unintentional Disinheritance Protection and serves an important function as a matter of good public policy. As such, if executes a will in 2000 and conceives son B in 2003, despite the fact B is not in his father’s will, B would still inherit as if he was. After all, how can someone disinherit a child who has not yet been born? The answer is you cannot.

What about adopted children who were born prior to the will’s execution?

To be afforded the afterborn protection under EPTL 5-3.2, one must in fact be afterborn. It was decided in the landmark case Matter of Gilmore, by the Surrogate’s Court County of Nassau and later affirmed by the Court of Appeals, that no child born prior to a will’s execution would qualify for this protection. In the Matter of Gilmore, the decedent executed a will in 1996 leaving everything to one son disinheriting his remaining 8 children. However in 2006, 10 years after the execution of the will, the decedent learned he was the father of two additional children who were born prior to the will’s execution date. This Court decided that despite the fact the decedent only learned of the existence of his two additional children after the will’s execution, neither of them qualified for Unintentional Disinheritance Protections as they were each born prior to the will’s execution.

As such, the Court denied each child’s petition to receive their portion of their biological father’s estate. However, if these two children were born after the execution of the decedent’s will in 1996, as a NY estate lawyer I would have been able to recover their share of their father’s estate.

While pursuant to EPTL 5-3.2, only afterborn children to a will’s execution will qualify for the Unintentional Disinheritance Protection there is one exception. If a child is born prior to a will’s execution that disinherits their interest in an estate, and later adopted, they will be entitled to their portion of the estate regardless of the will’s contents. The reasoning for this exception is twofold. First, under the law, a child is only deemed to become the child of the decedent on the date of adoption. As such, if a person is adopted after the date of execution of a will disinheriting their interest, it will be treated as if they were born on the date of adoption for inheritance purposes. Secondly, the adopted child is unlike the biological children of the decedent who were born prior to the will’s execution because their legal status never changed. These children born prior to the will’s execution were the decedent’s children from their date of birth and therefore fail to qualify under any such exception.

As you can see above, the NY estate law is a very interesting and complicated body of law. Despite all else the one constant I can recommend in estate law that never changes is to start planning your estate with an updated will. If you or a loved one would like to sit down with a NY probate lawyer to draft or update your will, call the Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444.

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