New York Probate Lawyer Blog
New York estate attorneys are routinely faced with many different factual situations where clients seek to obtain an inheritance from a decedent’s estate. These situations include the probate of a Last Will or the Administration of an estate where the decedent died intestate or without a Will.
On occasion, a person seeking an inheritance may have the status of being a Non-Marital child of the decedent. Difficulties in obtaining an inheritance are commonly faced by a non-marital child in New York estate administration or intestate estates. Section 4-1.2 of the New York Estates Powers and Trusts Law provides specific guidelines regarding the rights of non-marital children. Paragraph (a)(1) of the statute states that “a non-marital child is the legitimate child of his mother…” Therefore, such an individual has the right to inherit from his mother and her next of kin.
However, inheritance by a non-marital child from his father is not as simple and the statute sets forth certain requirements that must be met before such inheritance will be allowed. Thus, under paragraph (a)(2)(A) a non-marital child can inherit from his father if there is a Court Order or parental acknowledgment of paternity that has been properly filed. Paragraph (a)(2)(B) provides for an acknowledgment of paternity signed by the father. Perhaps the most familiar and often used standard of proof is provided under paragraph (a)(2)(C) which provides that inheritance will be allowed where “paternity has been established by clear and convincing evidence.” In this regard paragraph (a)(2)(C) was recently amended so that a non-marital child can inherit from his or her father if:
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.
Paragraph 4-1.2 (a)(2)(D) was entirely eliminated.
It is not uncommon for a non-marital child to have a long and close relationship with his or her father only to be confronted with the necessity of proving paternity after the father has died intestate. Good estate planning, including the preparation of a Last Will and maybe a Living Trust, can avoid such unintended and unwelcomed after death paternity proceedings.
New York Probate and Administration Attorney Jules Martin Haas, Esq. has been representing clients in New York Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years. If you or someone you know is involved with or has questions about a New York Probate or intestate estate, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.