As a NY estate lawyer with two decades of experience practicing NY estate litigation estate issues of all types are bound to arise in nearly every case. These NY estate issues can range from the validity of the NY will itself to the planning that went into the will or if there is no will, who the heirs would be. One often overlooked NY estate law issue is what happens to the inheritance of children who were not alive at the time of the NY will’s execution, known as after-born children? Does the after-born child have inheritance rights under the NY estate law to inherit from their parent’s NY estate? The answer can be complicated.
Michael Crichton was one of the most accomplished writers in the world selling more than 200 million works worldwide. Many of Crichton’s works were adapted by Hollywood into blockbuster films such as Jurassic Park and Westworld. A Roslyn, NY native, Crichton had also earned an M.D. from Harvard Medical School before setting out as an author. As a best-selling author Crichton amassed a fortune in excess of $175 million dollars before his sudden death from throat cancer in 2008.
Having been married 5 times Crichton left behind wife Sherri and two children. Unfortunately at the time Michael Crichton updated his will in 2007, one year prior to his passing, Crichton only had one living child, a daughter from a previous marriage. With Crichton’s second child still in utero at the time of his 2007 Will’s execution, Crichton made no provision for any after-born child in his Will. However, luckily for the after-born child, Crichton did include his 20 year old daughter within his will enabling the after-born child to also inherit a portion of Crichton’s $175 million dollar estate.
How is an after-born child able to inherit under the NY estate law?
In NY the section of the NY estate law that governs inheritance rights of after-born children is EPTL 5-3.2. This statute creates a presumption that the disinheritance of an after-born was unintentional. The presumption could be rebutted by: (1) mention of the after-born child within the will; (2) provision for the after-born; and (3) settlement on the after-born’s behalf. EPTL 5-3.2, states “with respect to the share of the NY estate to which the after-born is entitled to the amount he or she would have received had the testator included him or her with the children upon whom benefits were conferred.” In other words, if a parent writes a NY will providing for their existing children in equal amounts, and makes no mention of any after-born children that may be born later on, that after-born child shall inherit an equal share of the NY estate as his or her siblings who were alive and included in the NY will.
However, EPTL 5-3.2 is not absolute in that if the testator excludes his living children from his or her will then it is presumed that the testator intentionally made no provision to include any after-born children as well. In which case the NY estate law would not provide for any inheritance to go to the after-born child.
In the Crichton Estate mentioned above, because Michael Crichton had made a bequest for his older daughter from a prior marriage who was obviously alive at the time of his Will’s execution, so too was the after-born child able to inherit from his estate. As such, had Crichton omitted his existing child from his Will it is unlikely the after-born child would have been successful. As a NY estate lawyer this is only one of the very emotionally charged issues that can arise during a NY estate proceeding. While it helps to be prepared by having a command of the facts and familiarizing yourself with the idiosyncrasies of the NY estate law, nothing can prepare you for the emotional toll these cases can extract on loved ones. This is just one example illustrating the importance of having an experienced NY estate lawyer draft and update your NY will as needed.
If you or a family member are thinking about drafting their NY will feel free to call the NY estate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NY estate lawyers have more than 50 years of combined NY estate law experience drafting and probating wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Richmond and Dutchess.