As a NY probate lawyer practicing in Forest Hills, NY one of the most frequent questions I am asked is what happens when we die without a will? Like almost all answers to complicated legal questions, it depends. To begin with, we should all have a NY will regardless of our economic stature or family tree. Not having a NY will is akin to being on a ship without a lifeboat.
What is a will?
Simply put a NY will is a document, preferably drafted by an experienced NY probate lawyer, disposing of your property at the end of your life. NY wills drafted and whose executions are supervised by NY probate lawyers are given a very strong presumption of validity. This means that wills not drafted by NY estate lawyers are highly susceptible to added judicial scrutiny and are often discarded as invalid.
What is intestacy?
Many people pass away without duly executed wills. This process is called intestacy. Rather than passing smoothly though the probate courts, these NY intestacy estates proceed through Administration and are often up for grabs. NY Administration proceedings are frequently longer and more complicated than their probate counterparts as the NY Surrogate’s Courts are charged with identifying all of the distributees and determining whose entitled to control of the NY Estate as Administrator. This portion of the Administration proceeding can often take years, requiring extensive litigation while competing interests fight for control over the estate within the Courts. Pursuant to the NY Estate Law, a spouse of the decedent would have priority for control over the Administration upon a showing that there was a valid marriage, usually proven with a certified certificate of marriage. If the decedent was not married at the time of their death, issue of the decedent, also known as children, have standing to become Administrator of the NY Estate.
What are the rights of non-marital children in NY estate cases?
Having extensive experience litigating NY estate cases, I can tell you one of the biggest questions in an Administration proceeding is often who are the decedent’s children? While it sounds like an easy enough question the Surrogate’s Courts in the State of New York have been wrestling with its legalities for centuries. To answer this question we have to look back in time one decade to the evolution of New York’s Estates Powers & Trusts Law also known as the EPTL. Historically, our society put great emphasis on the institution of marriage and the legitimacy of children within the marriage. In fact, our culture and The NY Estate Laws alike labeled individuals born out of wedlock to be “illegitimate” children, whose very existence was subject to scorn and disdain. Until 2010, our very own NY estate law delegitimized children born out of wedlock by imposing double standards on their inheritance rights for something that was outside their control. While nobody ever asked to be born out of wedlock, up until 2010 society and the courts both penalized and stigmatized these individuals.
Prior to 2010 the EPTL 4-1.2 enacted a two prong test whereby “illegitimate” children were forced to prove their legitimacy through both “clear and convincing evidence” usually in the form of genetic DNA testing and by “open and notorious” evidence as well. Previously, the Courts often required non-marital children to make a showing that their parent open and notoriously held them out as their child before ever looking at any other type of evidence. As such, if the decedent never openly acknowledged and accepted their non-marital child as their own while they were alive, it was nearly impossible to prove the child’s kinship through all other means. As a result, these “illegitimate” children were often penalized by both society and the courts who slammed the door on their rights.
However, in 2010 all of that changed when the NY Legislature came to the realization that perhaps society was taking a heavy handed approach with these children by punishing an entire class of people. That is when New York State changed EPTL 4-1.2 accordingly. Firstly, under the previous NY estate laws children born out of wedlock were labeled illegitimate. The term itself is derogatory and meant to impeach the credibility of these children and their rights. Secondly, if the decedent did not acknowledge the child as his own, despite overwhelming evidence to contrary, the “illegitimate” child could never fulfill both prongs of the test and prove his standing as an heir by clear and convincing evidence and open and notorious acknowledgment. This was hardly a fair and equitable result.
In 2010 the antiquated and unfair EPTL 4-1.2 was amended to require these alleged non-marital children of intestate estates within NY to show either “clear and convincing evidence” of kinship or evidence that the decedent held them out as their own child through “open and notorious” means. This was a huge step forward for the rights of children born out of wedlock in NY as they no longer had to meet the nearly impossible threshold of proving each prong but rather had the just and fair choice of proving their kinship through either prong. As such these non-marital children now have a much higher success rate in proving kinship and entitlement to their inheritance. Lastly, the NY estate law was revised and worded in a more equitable manner whereby the class is no longer referred to by the Courts as “illegitimate” but are now known as “non-marital” children which is what they are and have always been.
To appreciate The NY Estate Law’s progressive stance concerning the rights of non-marital children we have to look at California’s treatment of non-marital children under their estate law as illustrated in Matter of Britel. Amine Britel was an Olympic cyclist killed by a drunk driver while cycling in Orange County California in 2015. Britel was not married at the time of his death and did not leave a will disposing of his multi-million-dollar estate. As such Britel’s died intestate. When Britel’s sister petitioned The Surrogate’s Court to receive his estate, Jackie Stennett, a Harvard Business School Graduate objected to that petition. Jackie Stennett claimed that she in fact had a non-marital daughter with Britel in 2001 while attending Harvard together. Even Britel’s best friend conceded that Britel knew about his daughter but refused to accept her as his own. Britel was of Moroccan decent and non-marital children are not tolerated or well received within the Muslim culture. Unlike the current NY estate law which allows for claimants to prove kinship by multiple means, either by open and notorious or clear and convincing evidence, the California Estate Laws do not.
Unlike the NY kinship law, California only allows for non-marital children to successfully claim their heirship rights through open and notorious acknowledgement during the decedent’s lifetime. So if the decedent refused to acknowledge you as his own child, well you’re out of luck. And in how many instances does the father of a non-marital child ordinarily acknowledge the child as his own? For various reasons including but not limited to the stigma society has placed on the children borne out of wedlock as illustrated above not to mention the implications if the father is currently married himself, very few non-marital children are acknowledged by their paternal parents. As such, The California Court’s rejected Stennett’s arguments and dismissed her objections denying Britel’s non-marital daughter her rights to inherit his intestate estate.
Had Matter of Britel occurred in New York, Stennett’s daughter would have had an opportunity to prove her kinship through clear and convincing evidence such as DNA testing or letters from Britel to Stennet’s mother privately acknowledging his non-marital daughter as his own. Therefore, when Britel’s sister claimed her brother never acknowledged the daughter as his own, Britel’s sister’s lawyers would be estopped from making that argument.
Society has become more accepting of non-marital children understanding that children should never be punished under the law or by society for something that is outside their control. It is encouraging that the NY Estate Law has found a way to evolve with these precepts furthering our nation’s fundamental belief that all men (and women) were created equally. Unfortunately, not all communities have made peace with this reality as illustrated by California’s antiquated estate laws mentioned above.
If you or someone you love is the non-marital child of a decedent, you may have rights under the NY estate law. Feel free to call an experienced NY probate lawyer at The Law Offices of Jason W. Stern & Associates, at (718) 261-2444 for a free consultation. Our Queens estate lawyers have nearly 45 years of combined NY estate law experience handling these often treacherous NY kinship cases for non-marital children in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Richmond, Orange, Dutchess as well as in the State of New Jersey.