New York Non-Marital Children May Lose Their Inheritance

New York Estate Lawyers are aware of the importance of proper estate planning. Such planning may include the preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. By creating the above papers a person can identify the individuals that they want to inherit their estate and supervise the disposition of their property and personal affairs.

In the course of estate settlement when a person dies without a Last Will or the creation of a Living Trust, the assets owned in his name may be distributed pursuant to the New York intestacy laws contained in Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1. However, where there are non-marital children, such individuals can inherit from their mother but must provide various forms of proof in order to inherit from their father. The New York Probate Lawyer Blog has discussed this issue in earlier posts. EPTL 4-1.2 entitled “Inheritance by non-marital children” states that inheritance from the non-marital father requires proof in various forms such as an order of filiation. Also, paternity can be shown by clear and convincing evidence from genetic marker testing or that the father “openly and notoriously acknowledged the child as his own. . . .”

As noted, a good estate plan that names non-marital children in a Last Will or Living Will can avoid the problems of proof that exist when a person dies intestate. In a recent decision by Bronx Surrogate Nelida Malave-Gonzalez dated July 7, 2014 entitled Estate of Howard Dawson, inheritance was denied to three alleged non-marital daughters. The Court stated that none of the evidence required by EPTL 4-1.2 was presented to support a finding that the daughters were entitled to receive a share of the decedent’s estate.

I have represented individuals in Surrogate’s Court proceedings where proof was required that the person was the non-marital child of their deceased father. If the claim is that the decedent open and notoriously acknowledged the child, the proof needed can include testimony from witnesses who knew and spoke with the father and documents and papers that show that the father recognized the person as his son or daughter. Typically, this evidence is presented at a hearing in the Surrogate’s Court and the Judge then issues a decision as to the kinship status of the claimant.

New York Probate and Administration Attorney Jules Martin Haas, Esq. has been representing clients in New York Trusts and Estates matters in Manhattan and Queens 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:, for an initial consultation.

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