Can non-marital children inherit from NY estates and how?

As a NY estate lawyer with over two decades of NY estate litigation experience, some of the most complex and emotionally charged cases we handle involve asserting the inheritance rights of non-marital children. So what are the inheritance rights of non-marital children under the NY estate law?  

Normally when someone dies without a NY will, also known as intestacy, the person’s NY estate goes to their next of kin.  Ordinarily, if their next of kin are marital issue, children of a marriage, their children are quickly recognized by courts as the legitimate and rightful heirs of the decedent.  However, if children of the deceased were born outside the marriage, also known as non-marital, the children often bear a heavy burden of establishing their inheritance rights within the NY estate law by clear and convincing evidence.  As an area of interest, if a child’s parents were unmarried at the time of the child’s birth, but who later married one another, that child is also considered a marital child despite being born out of wedlock.  

Why is the marital status of a child’s parents important in determining inheritance claims?  While marital children benefit from something called the marital presumption of legitimacy, non-marital children do not.  The marital presumption of validity has the legal effect you would expect it to.  In the eyes of the NY estate law any child born within a marriage is presumed to be the offspring of their wedded parents. However, unlike marital children, non-marital children receive no such presumption.

Having successfully litigated several recent sizable NY estates on behalf of non-marital children, we as NY estate lawyers have come to master and fully understand the legal requirements necessary for courts to acknowledge paternity under the NY estate law.  Perhaps the biggest misconception non-marital children have regarding their right to inherit pursuant to NY estate law is in regards to their birth certificates.  Just because their alleged father’s name appears on their birth certificate these claimants wrongfully assume they will be deemed the paternal child of the decedent. This is not so.  For non-marital children to establish their standing after April 28, 2010, EPTL 4-1.2 as amended in 2010 of the NY estate law it states, among other things, that a non-maritalchild may inherit from his or her father and paternal kindred, if paternity was established during the decedent’s lifetime or “paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, OR (ii) evidence that the father openly and notoriously acknowledged the child as his own.  

Clear and convincing evidence within the context of this right to inherit as a non-marital child under the NY estate law requires overwhelming evidence of paternity and is one of the highest burdens to meet in all of law for a NY estate lawyer.  The NY estate law also includes a rigid quantum of proof included in the EPTL 4-1.2 before permitting a non-marital child to inherit from his or her father including:

(A) an order of filiation made during the father’s lifetime; or

(B) the father signed an instrument acknowledging paternity which also complied with the other requirements under EPTL 4-1.2(2)(B); OR

 (C) a blood genetic marker test and other evidence established paternity by clear and convincing evidence.

EPTL 4-1.2 also provided that the existence of an agreement, court order, obligating the father to support a non-marital child did not qualify the child to inherit from the father in the absence of an order of filiation or acknowledgement of paternity as prescribed above.

However, if the alleged non-marital child cannot meet any of the above-mentioned burdens of proof, the alleged child may in theory establish paternity by way of open and notorious acknowledgment of paternity. In these cases, while there is no requirement that the putative father disclose paternity to all his friends and relatives an acknowledgment of paternity in the community in which the child lives is sufficient, in theory.

Unfortunately for NY estate lawyers, while the NY estate law theoretically provides for open & notorious acknowledgement of paternity, courts are extremely reluctant to permit alleged non-marital children to inherit by way of open and notorious acknowledgement.  Even in cases where a strong presumption of paternity by way of open and notorious evidence exists, NY Courts have still demanded clear and convincing evidence by way of some other means usually requiring genetic marker testing, otherwise known as DNA evidence.  In Matter of Lewis, NYLJ (Surr. Crt. Brx. Cty. 2016), where three children, one marital and two non-marital, were disputing each other’s right to inherit from their father’s NY estate the court ordered genetic marker testing to move forward for each of the three children before acknowledging paternity despite the existence of overwhelming evidence of open and notorious acknowledgement of paternity.  In fact, even in instances where there is no DNA material of the decedent available for testing purposes, the court has ordered that each alleged child’s genetic material be tested against any and all siblings of the decedent.

The courts tact in many of these NY non-marital inheritance estate cases not only creates roadblocks for this class of claimants to assert their inheritance rights under the NY estate law as it is written and their NY estate lawyers but is also completely contrary to the spirit of this law’s 2010 revision.  More specifically, in 2010 EPTL 4-1.2 of the NY estate law, was specifically altered to allow claimants to choose their own path to assert their inheritance rights utilizing either evidence of open & notorious acknowledgement of paternity or some other evidence if they wished.  Unfortunately, since this statute’s 2010 revision, caselaw has been spotty as courts continue to ignore evidence of open and notorious acknowledgment of paternity electing instead for the more expeditious path of genetic marker testing. This is very unfortunate, as we as NY estate lawyers believe the statute was amended to reinforce the inheritance rights of non-marital children to take as distributees where paternity was openly and notoriously acknowledged by the decedent but where biological relations may be questionable.  After all, is it not a travesty of justice to question the paternity of someone who was born outside of wedlock but who was raised and acknowledged to be the decedent’s child their entire life despite the existing possibility of not being biological? 

As such, in light of the NYS legislature’s 2010 revision to the NY estate law, non-marital children should be able to assert their rights to inherit as distributees if open and notorious acknowledgment was established during the decedent’s lifetime and should not be subjected to the indignity of DNA testing unless they so choose.

In each of our NY estates involving the assertion of inheritance rights on behalf of non-marital claimants, we chose to establish paternity by way of open and notorious means.  Unarguably, open and notorious acknowledgment is the most difficult path for a NY estate lawyer to pursue in these matters by design.  While courts prefer to take a very pragmatic approach to these contested matters opting to order genetic marker testing, that is not always in the spirit of the law.  Since the NY estate law’s 2010  revision, the NY estate law now allows for a NY estate lawyer to establish paternity by way of clear and convincing evidence of paternity either through DNA evidence or some other evidence of paternity as prescribed by law OR by open and notorious acknowledgment.     

While the NY estate law has come a long way towards the acceptance and inclusion of non-marital children and their inheritance rights since the days when they were stigmatized as “illegitimate” there is still much work to be done.  Hopefully, if NY estate lawyers like ourselves keep fighting for the rights of non-marital children this area of law will eventually better align itself with the legislative intent of the NY estate law as it was revised in 2010 to mean. Our firm has been and will continue to be instrumental in creating a body of caselaw to enhance the rights of alleged non-marital children fighting for their inheritance rights under the NY estate law as it was intended. 

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 estate lawyer at The Law Offices of Jason W. Stern & Associates, at (718) 261-2444 for a free consultation.  Our NY estate lawyers have more than 60 years of combined NY estate law experience handling these often treacherous NY estate cases for heirs in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Richmond, Orange, and Dutchess.

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