New York Probate Lawyer Blog
The various rights afforded to persons by the New York estate laws generally require that a person be related by blood to a decedent. New York Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides the relationship of individuals who can inherit an estate of a decedent who died without a Last Will. The priority established in this statute begins with a surviving spouse and issue and continues through the family tree to great-grandchildren of grandparents. Section (b) of the law provides that the “decedent’s relatives of the half blood shall be treated as if they were relatives of the whole blood.” Thus, half sisters and half brothers, for example, achieve inheritance rights. The statute further recognizes rights of adopted persons. Such familial relationships also afford a person certain rights to contest a Last Will.
However, absent an adoption, a child of a natural parent who has remarried has no rights with regard to the estate of the step-parent. This situation can present many problems, particularly in the case where the child is young. For example, if the child’s natural parent dies, the deceased parent’s estate or a large portion of it may pass to the surviving spouse if there is no Last Will or the Last Will does not provide for the child. Once the surviving spouse has received the estate property, the surviving child has no rights or expectation regarding the estate of the step-parent since there is no blood-relation between them. If the step-parent dies without a Last Will all of the step-parent’s estate, which includes the assets derived from the step-child’s deceased natural parent, may go to the step-parent’s blood relatives. Unfortunately, the step-child would be excluded under the law from participating as a distributee or next of kin of the step-parent.
This problem was recently recognized in Australia where laws have been changed to protect the interests of step-children. An article by Amanda Banks appearing in the West Australian dated December 3, 2012, entitled “Stepchildren get will rights” discusses this topic.
The best remedy for disinheritance of a step-child is for the child’s natural parent to prepare a comprehensive estate plan which includes a Last Will, Living Will, Health Care Proxy and even a Living Trust. The provisions of these documents can provide for estate assets to go to a child and also that the child be appointed as an Executor or Health Care Agent. If the child is a minor, a trust can be created with an independent trustee to protect the property that is given to the child. While disinheriting a child is allowed under New York, the unintended disinheritance of a child in a second marriage situation can have devastating life-long financial consequences.
Many individuals believe that estate planning is only for those that are wealthy and want to limit estate tax liability. In fact, there are many family situations where there are second marriages, adopted children, unknown heirs or other family concerns unassociated with tax issues which require extensive estate planning and foresight.
New York Probate Attorney Jules M. Haas has helped many clients over the past 30 years resolve issues relating to probate, intestate estates, estate planning, kinship and estate settlement. I have represented clients in these matters throughout New York including the Bronx and Queens Counties. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.