On April 9, 2021 the legendary hip hop artist Earl Simmons, better known by his alias DMX, passed away from cardiac arrest at the age of 51. As a NY estate lawyer I am always curious to see how celebrities plan their NY estates. Earl Simmons, a lifelong resident of Yonkers who made tens of millions of dollars in royalties during his incredible career, like most people, failed to hire a NY estate lawyer to draft a simple NY will on his behalf. In fact a recent Gallup Poll found that only 46% of adults in our country have a will. Moreover far fewer than the 46% of adults surveyed actually have a NY attorney drafted will whose execution was supervised by a NY estate lawyer ensuring the document’s validity. However the testamentary presumption of validity that accompanies NY estate lawyer drafted and supervised wills is not the purpose of this article. The purpose of this article is to discuss the aftermath of not having a NY estate lawyer drafted and supervised will.

Mr. Simmons’s unexpected death is an unfortunate loss for the Hip Hop community. Whether you listened to his music or not his life’s work and contribution to New York’s legitimacy in the music industry cannot be overstated. His sound was truly unique. Sadly his body of work, much like many other great artists, is overshadowed by his affairs after his passing. In the case of The DMX Estate, he was married only once to his childhood sweetheart Tashera Simmons whom he shared four children with. Aside from the four marital children DMX had with his wife whom he divorced in 2014, it is alleged that DMX fathered 11 additional non-marital children with nine other women whom he did not marry. Now all of these children have hired NY estate lawyers to litigate their rights to inherit from the Earl Simmons Estate.

Currently 11 of DMX’s non-marital children are petitioning the court to be acknowledged through open and notorious means. So who will inherit the assets of The DMX Estate?

As a NY estate lawyer with more experience than any other NY attorney championing for the inheritance rights of non-marital children I can say this is a very precarious area of the NY estate law. Very few court personnel are well versed on this body of the NY estate law and even fewer NY estate lawyers understand it. This is because in 2010 Section 4-1.2 of the NY Estates Powers and Trusts Law was categorically changed. As a result of these amendments few legal minds appreciate its new requirements in proving paternity in a NY estate.

First I should mention that these cases only apply when a non-marital child is asserting their rights to inherit from their father’s NY estate, not mother’s NY estate for obvious reasons. When a child is born of a mother it is apparent who the child’s mother is. However at the time of birth there is no definitive way to know the true father’s identity absent genetic testing. Normally when children are born of a marriage or even prior to the marriage if the parents subsequently wed, the child is acknowledged as being the offspring of the father thereby establishing paternity. This is so because as a marital child, they are entitled to the marital presumption of paternity under the NY estate law. However when a child is born outside the marriage the courts must address this issue of paternity as it relates to a NY estate and the child’s rights to inherit. Herein lies the legal issue.

How does one prove paternity as a non-marital child under the NY estate law?

Prior to the 2010 change of the NY estate law inheritance rights of non-marital children were governed by the prior statute EPTL 4-1.2. This statute previously provided that an illegitimate child, as they were formerly referred to under NY estate law which 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. Therefore, if you did not have a relationship with your father you could not prove paternity by any other means.

Having successfully litigated numerous 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 as it is written today. Perhaps the biggest misconception non-marital children have regarding their rights 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-marital child 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 their 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.
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 means. 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 genetic marker testing, DNA evidence.

However, recently an encouraging decision out of Bronx County, in Matter of Thomas, (Surr. Crt Brx. Cty. 2021), found that while paternity was never confirmed during the decedent’s lifetime, where there was credible evidence in the form of overwhelming testimony from witnesses who knew the decedent best, claimant’s burden proving paternity through open & notorious acknowledgment had been met. As a Queens estate lawyer I was encouraged that this Court bypassed the need to have the son’s DNA tested and instead acknowledged his right to assert his entitlement to inherit through the testimony of those who knew his father best. This court went on to recognize that the 2010 amendments to EPTL 4-1.2 “ameliorated some of the difficulty a non-marital child faces in attempting to establish paternity”. This Court further stated, “While a non-marital child previously had to establish both clear and convincing evidence (DNA testing) and open and notorious acknowledgment of paternity by the father, now the child must establish only paternity by clear and convincing evidence which may include, but is not limited to, evidence derived from a blood genetic marker test OR open and notorious acknowledgment.”

In fact the above case was cited in the non-marital children’s cross-petition within the DMX estate itself. Their NY estate lawyers argued that the 2010 amendment to EPTL 4-1.2 of the NY estate law, was specifically altered to allow their claimants to choose their own path to assert their inheritance rights utilizing either evidence of open & notorious acknowledgement of paternity or some other clear & convincing evidence, namely DNA testing if they so choose. Unfortunately, since this statute’s 2010 revision, caselaw has been inconsistent to say the least as many NY courts continue to ignore evidence of open and notorious acknowledgment of paternity electing instead for the more expeditious path of genetic marker testing. However as NY estate lawyers with more experience than any other firm litigating inheritance rights on behalf of non-marital children we choose to spare our client’s the indignity of genetic marker testing when possible. First, we never know the outcome of the genetic marker testing, which in my opinion is not always conclusive. Secondly, why as a Queens estate lawyer, should you limit the inheritance rights of your clients just because they happen to be non-marital. In other words if the alleged father openly accepted their child as their own during their lifetime, who are we to question that now?

In the within NY estate of DMX, 15 of the artist’s heirs and alleged heirs are currently litigating this very issue of open and notorious acknowledgement within the meaning of EPTL 4-1.2 of the NY estate law. In the end each of DMX’s 9 alleged, non-marital children will have to make a showing as to the status of paternity before they will be permitted to inherit from the DMX estate. We as NY estate lawyers are very encouraged by recent caselaw properly applying the amendments to NY estate law’s EPTL 4-2.1, permitting non-marital children to meet their burden through open & notorious acknowledgment and not just genetic marker testing. Whereas once Courts were reluctant to permit non-marital children to inherit by way of open & notorious means, I am encouraged that there is a glimmer of hope that the NY estate law will be applied within the spirit of its 2010 amendments. Rather than forcing claimants to submit to genetic marker testing, I am hopefull the principles of EPTL 4-2.1 will be judiciously applied as intended permitting each alleged child asserting their right to inherit to choose their own path.

If you or someone you love is the heir to a NY estate, 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 Queens estate lawyers have nearly 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, Dutchess and Suffolk.