As a NY probate lawyer with more than two decades of experience litigating NY estates I can tell you that inheritance rights of non-marital children can often be ambiguous. This is because while marital children enjoy the presumption of marital paternity, that their father is in fact their father, non-marital children do not. Therefore, individuals born of parents who were not married must first establish their standing as children, paternity, before their NY estate lawyer can assert their inheritance rights within NY estates as non-marital issue (children). To have standing the non-marital child must either be named within the decedent’s NY will or testamentary scheme in some manner, or either be acknowledged by the decedent as their non-marital child throughout their lifetime or come forward with clear and convincing evidence of same.
Naturally, asserting a claim to a NY estate is much easier when you are actually named in the instrument. As a named beneficiary of a NY estate you automatically have rights as a beneficiary, such as the right to bring an accounting proceeding. However for non-marital children whose parents pass without naming them in a NY will, or who pass without having executed a NY will at all, this proves more problematic for the non-marital offspring.
If someone passes away in the State of New York without a NY will their estate is known as an NY administration estate. Here, all distributees, next of kin are identified to the court and served notice within the NY estate. However, if some of the distributees are non-marital children, things can get murky especially if some of the other children are marital. Here, the non-marital child must establish standing, their entitlement to a portion of the NY estate administration. This is done with the help of a NY estate lawyer who must prove that the decedent acknowledged the child during his lifetime by open and notorious means. While there is no set definition within the NY estate law of open and notorious acknowledgement such evidence often includes but is not limited to the sharing of birthdays and holidays together, if the father is named on the birth certificate, if the father provided financial and emotional support, if the father sent birthday cards, raised the child, lived with the child for any length of time and most importantly by telling some people that this is his child. While the NY estate law does not require telling everyone you meet that this person is your non-marital child you do have to tell at least some people.
Additionally, just because a father did not live with their non-marital child does not mean he did not acknowledge the child by open and notorious means. In which case you would just have to show some other evidence of acknowledgment. As such none of these factors are mutually exclusive of the other. Oftentimes just because a father’s name appears or does not appear on a birth certificate, people think this is proof or lack thereof of paternity but that is a misconception. More often than not if a single mother gives birth in a hospital, a father’s name will not appear on the birth certificate at all. However that alone is not dispositive of paternity.
Luckily, the direction of the New York estate law defining the rights of non-marital children has been toward enhancing the ability of non-marital children to assert their inheritance rights as per Matter of Poldrugovaz, 50 AD3d 117. This has been demonstrated by the removal of the more archaic and offensive statutory terms for non-marital children in legislation, such as illegitimate, and by increasing the procedural avenues for them to pursue their rights. In fact the monumental Poldrugovaz case, lead the NY legislature to overhaul the entire NY estate law regarding the inheritance rights of non-marital children in 2010 widening their access to their NY inheritance as a class. As such, in addition to open and notorious there are several other legal paths available to non-marital children and their NY estate lawyers to prove paternity within the NY estate law.
Estate of B.B. King
B.B. King passed away on May 14, 2015 at the age of 89. King who was twice married had children with neither spouse. B.B. King, whose arguably considered the greatest blues artist in history, would consistently play more than 200 shows per year while touring each of the nation’s fifty states. When the singer penned the famous song, “when love comes to town” he was writing from experience as he met quite a number of women throughout his years touring. B.B. King’s estate is conservatively estimated to be valued at $8 million dollars including all of the late artist’s assets and royalties which continue to generate income for the estate.
Over the course of his lifetime B.B. King openly and notoriously acknowledged fifteen children from fifteen different non-marital relationships he maintained during decades of traveling and performing. Unfortunately King allegedly suffered from a medical condition resulting in low sperm count making the likelihood of paternity in any of these instances highly unlikely. That being said, despite a chaotic engagement schedule B.B. King’s children contend that he was always there for them, never missing a birthday or an important event. Each of King’s fifteen children describe their father, one of the greatest blues players to ever pick up a guitar, as a fun loving father figure who would love nothing more than to share holidays while spending quality time with his children and grandchildren. King’s fifteen children all describe their father as overly generous, paying for each of their college, schooling and needs.
In the end, B.B. King drafted a will, including each of his grandchildren and to a lesser extent his fifteen non-marital children as the beneficiaries of his estate. Legally speaking, absent a will, each of B.B. King’s fifteen non-marital children would still have been able to inherit from his estate by way of open and notorious acknowledgment as the artist never questioned paternity for each of his children. Despite being in all probability challenged in the fertility department, B.B. King was no less a father to each of his children, notwithstanding the fact he was never married to any of their mothers. As such, if a father of a non-marital child openly acknowledges that child as his own throughout his lifetime, why should anyone question paternity in their absence, or more importantly their right to inherit from their NY estate. Perhaps what the B.B. King estate illustrates is that parenting a child is less about giving birth to or fathering a child and more about being actively involved in another’s life as a mentor and caregiver.
If you are a non-marital child and have an estate issue it never hurts to ask the opinion of an experienced NY estate lawyer to see what NY inheritance rights you may have. Feel free to call the NYC probate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NY probate lawyers have more than 60 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.