Inheritance Rights of Non-Marital children: Estate of Herman J. Russell

Inheritance Rights of Non-Marital children: Estate of Herman J. Russell

In the current information age, more information can often lead to more problems.  With advances in science, namely ancestry searches, Queens estate lawyers are seeing more and more cases involving children of parents who turn out not to be the parents.  This new science creates a virtual rabbit hole of legal and emotional questions for heirs who may or may not actually be heirs.  So what does the NY estate law dictate when your father turns out not to be your father? For example, what happens to your right to inherit from a NY estate when it is learned that the person who raised you, the person you have known your entire life is not your biological father? In fact this paradox has recently raised so many moral and legal issues for Queens estate lawyers, that the NY estate law itself was completely revised.  In 2010 the NYS Legislature specifically addressed the issue of inheritance rights of non-marital children while preserving both the ethical and progressive values of fairness within our society that we hold sacred.  

As a Queens estate lawyer with two decades of experience litigating these NY estate issues I can tell you that this vast area of NY estate law governing inheritance rights of non-marital children can be both deceptive and conflicted.   So what happens if you discover the person you have known your entire life as your father is someone other than your biological father, can you still inherit from his estate?  Prior to the 2010 change of the NY estate law inheritance rights of non-marital children was governed by EPTL 4-1.2.  This statute previously provided that an illegitimate child, as they were formerly referred to under NY estate law but is no longer an acceptable legal term, could only inherit from a father if both “the father openly and notoriously acknowledged the child as his own” AND“paternity has been established by clear and convincing evidence”.   In other words, even if you were found to be the biological child of your deceased father, unless your father openly acknowledged you as his child throughout his lifetime you still could not inherit from his NY estate.  In fact, prior to 2010 the NY estate law was so archaic, it required the non-marital child to first make a showing of open and notorious acknowledgment before any further evidence could even be introduced.  

Luckily, for Queens estate lawyers and their clients, the NY estate law was significantly revised to encompass and broaden the means by which non-marital children could asserts their inheritance rights.  As a Queens estate lawyer, I am now able to prove paternity on behalf of non-marital heirs by establishing either that the decedent openly acknowledged their  non-marital child during their lifetime OR by other prescribed means as stated within the NY estate law.  Additionally, the NY estate law held that in establishing open and notorious acknowledgment of paternity, the decedent need not disclose paternity to all of his relatives and friends, only some.  As such, the updated NY estate law affords Queens estate lawyers several paths to establish inheritance rights on behalf of non-marital children.  

Estate of Herman Russell

When Herman J. Russell died on November 15, 2014, he left behind one of the biggest legacies in Atlanta history.  Born into extreme poverty during the great depression Herman J. Russell became one of the most prominent real estate developers in the entire south despite restrictive Jim Crow Laws on African American investment. Herman’s company develops, constructs and manages buildings, schools, colleges, railway stations, museums and sports complexes in the Atlanta area.  In fact, it is estimated that Herman J. Russell’s fortune was between $50 million and $100 million dollars.  Russell’s vast resources and accomplishments were also accompanied by an impeccable reputation for integrity within the region. 

In 1983 it was a shock when 24 year old Joyce Darby received a call from her mother telling her Richard, the man she knew from birth as her father, the man who worked two jobs to raise her and put her through college was not her biological father.  Like anyone else would, Joyce then asked her mother who her biological father was? Her mother informed Joyce that she was the non-marital daughter of none other than Herman J. Russell.  The product of a chance encounter in 1958 between two neighbors visiting family at a local hospital. That evening Herman offered Joyce’s mother a ride home and one thing lead to another.  After notifying Herman of her pregnancy, her mother allegedly told Joyce that Herman J. Russell gave her a fifty dollar bill, rebuffing any further contact.

Initially, after the shock subsided, Joyce decided to reach out to Herman J. Russell, her biological father, with a letter explaining who she was and invited him to contact her.  However after making several attempts without any response Joyce gave up on her desire to connect with her biological father.  After the death of her mother, Joyce once again revisited her desire to know more about her father and her three half siblings.  So in 2015 Joyce again reached out to Herman J. Russell once again only to learn about his recent passing.  Still curious about her half siblings she decided to contact them anyway.  Almost immediately Joyce was met with suspicion and resistance and asked to take a blood test.  Seeing how Herman J. Russell did not acknowledge his paternity of Joyce during his lifetime, refusing to even reply to her letters, it would be impossible for Joyce to assert any inheritance rights through open and notorious means.  So Joyce decided to appease her newfound family by taking a blood test.  As luck would have it Joyce established her paternity with Herman J. Russel testing a perfect match.  

For Joyce, a self-made accountant by profession, this estate matter had less to do with inheritance and more to do with closure.  Joyce initially reached out to Russell out of curiosity and just like her mother was denied her recognition as Russell’s non-marital child.  I suspect  Joyce was hoping Russell’s children would finally acknowledge her as part of their family.  Instead, Russell’s children offered Joyce a settlement to go away.  Unfortunately for Joyce, Herman J. Russell had already transferred the majority of his  wealth to distributees during his lifetime with elaborately designed trusts to circumvent the estate tax.   Additionally, Russell left behind an attorney drafted will excluding all but his three marital children.  

However, had Herman J. Russell not had a will and died intestate, Joyce would be able to inherit a full portion of his estate under the NY estate law as a non-marital child. Conversely, even if Joyce was not the biological daughter of Herman J. Russell, had he openly and notoriously acknowledged her as his child throughout his lifetime, which he did not, Joyce could have inherited from Russell’s estate as well.

Should you or a loved one wish to speak with a NYC estate lawyer about asserting their right to inherit from a NY estate, feel free to call us at (718) 261-2444 to speak with an experienced Queens estate lawyer for a free consultation.  Our offices have been successfully probating NY estates and drafting wills for New Yorkers in the Counties of New York, Queens, Nassau, Suffolk, Bronx, Richmond, Westchester, Orange, Rockland and Dutchess for years.  

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