How non-marital children prove paternity in NY estates? Estate of Castellano

On March 22, 2016, Douglas Castellano was found murdered inside his home.  An autopsy revealed the 69 year old Castellano was murdered by blunt force trauma to the head. The murder suspect was 31 year old Harry Christianson, Castellano’s tenant.  The 69 year old Castellano was never married nor had he formally acknowledged the paternity of any child prior to Castellano’s death.  Castellano’s only known heirs were his siblings.

However, backing up to 1977, Douglas Castellano had been in a two year relationship with his girlfriend Elisa Marie Machiaverna.  That year Michiaverna  ended that relationship with Costellano beginning a new relationship with boyfriend Gregory Allen Boch.  Machiaverna and Boch would marry two months later.  Seven months later Machiaverna gave birth to a son whom she named Gregory Allen Boch, Jr.  The baby’s namesake Gregory Allen Boch, was identified on the baby’s birth certificate as “father”.

Fast forwarding to 2016, the child, Gregory Allen Boch, Jr., asserted his right to inherit from Douglas Castellano’s Estate as his sole heir establishing paternity through genetic marker testing.  The testing established that while Douglas Castellano had never acknowledged Boch as his son during his lifetime, Castellano was in fact the child’s biological father. Thereby giving Boch the right to inherit the entirety of Costellano’s Estate.  As you can imagine Castellano’s siblings were not happy to learn of these revelations. Estate lawyers for Castellano’s siblings argued that the child had been born during the marriage of Machiaverna and Boch giving rise to the marital presumption of legitimacy.  The marital presumption of legitimacy states that any child born of the marriage of two individuals is automatically presumed to be the biological child of the husband and wife unless there is clear and convincing evidence to the contrary.

Acknowledging that clear and convincing evidence is a very high burden to meet, much higher than a preponderance of evidence, one of the only ways to rebut such a presumption is with irrefutable genetic marker testing.  In the end the Appellate Court sided with Gregory Allen Boch, deeming Boch the sole heir of the Costellano Estate.  Thus Costellano’s siblings were disinherited from their brother’s estate.

In general genetic marker testing is probably the means of last resort for asserting paternity rights on behalf of non-marital children in a NY estate.  First, obtaining genetic marker material is not as easy as it sounds. Reliable material needs to be taken within the chain of custody where it can be authenticated.  If there is no genetic marker material to test against you might just be out of luck.  Secondly, if the test comes back inconclusive for any reason, you may again be out of luck.

As one of only a handful of NY estate lawyers with two decades of experience litigating these terribly emotional NY estate paternity cases, I have to recommend avoiding genetic marker testing whenever possible in proving paternity.  To understand this highly complicated area of the NY estate law governing paternity issues in NY estates, the NY estate lawyer must first realize how the NY estate law has evolved over the past 12 years.  Prior to 2010 the NY Estate Law required a potential heir whose parents were not married to prove their case in two ways.  The first way was by proving that their father “openly and notoriously” acknowledged the child as their own during their lifetime AND providing “clear and convincing evidence” of paternity usually in the form of genetic marker testing.  So this left non-marital children and their NY estate lawyers attempting to assert their right to inherit from a NY estate with not one nearly unsurmountable legal obstacle but two.

Fortunately for non-marital children, the NY estate law was updated in 2010 to make it easier legally for non-marital children to establish their rights to inherit from their fathers’ NY estates.  In 2010, the NY Legislature amended EPTL 4-1.2 and ameliorated some of the difficulty a non-marital child faces in attempting to establish paternity in a NY estate. While a non-marital child previously had to establish both clear and convincing evidence AND open and notorious acknowledgment of paternity by the father, now the child must either establish paternity by only clear and convincing evidence which may include, but is not limited to, evidence derived from a blood genetic marker test OR preferably by open and notorious acknowledgment. These changes to the NY estate law were enacted April 28, 2010 and apply to estates of decedents dying on or after that date.

As a NY estate lawyer I feel that the rights of non-marital should be upheld at all costs and that non-marital children should be spared the indignity of having to undergo genetic marker testing.  After all, the NY estate law now states that if your parents were never married but your father held you out to be his child during his lifetime, who has the right to force you to take a test to prove something that has already been established? The answer we as NY estate lawyers believe is nobody should force you to take a genetic marker test unless your father did not acknowledge you as his child where such testing becomes your option of last resort for the reasons stated above.

If you or a loved one are the child of parents who were never married you have rights under the NY estate law and should not take a genetic marker test before consulting with a NY estate lawyer.  Should you wish to speak with a NY estate lawyer about your rights please feel free to call out NY estate lawyers at (718) 261-2444.  If you are a non-marital child and have an estate law issue it never hurts to ask the opinion of an experienced NY estate lawyer to see what NY inheritance rights you may have under the NY Estate Law.  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 estate lawyers have more than 60 years of combined NY estate law experience representing 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.

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