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A New York Non-Marital Child Needs Proof to Show Paternity

shutterstock_434643370-300x225In situations where a decedent does not leave a Last Will and Testament, the Court must be satisfied that it has received complete kinship information.  This is because both the appointment of the estate administrator and the ultimate distribution of estate assets are based upon identifying the decedent’s next of kin or distributees.

Most of the time, it will not be difficult to certify the identities of the decedent’s distributees.  There may be a surviving spouse and children born during the marriage.  However, particular issues arise when an alleged child is born outside of a marriage and the claims of inheritance relate to a deceased father.  In order to inherit from a deceased father, a child must prove paternity.  New York estate law provides a specific statute to cover this issue.  Estates, Powers and Trusts Law Section 4-1.2, entitled “Inheritance by non-marital children,” sets forth the details required for determining whether a non-marital child is a legitimate child of his father.  The New York Probate Lawyer Blog has published numerous articles concerning this issue.

Interestingly, the statute begins by providing that a non-marital child “is the legitimate child of his mother” for purposes of inheritance.  However, when it comes to paternity, there are a number of avenues of proof that can be utilized.  One of the most common ways of demonstrating paternity is by showing through clear and convincing evidence that the father “openly and notoriously acknowledged the child as his own.”

There are many cases where the settlement of an estate and kinship was determined with such proof.  For example, Matter of Estate of Scott-Heron was a Manhattan estate case decided on May 2, 2019 by Manhattan Surrogate Rita Mella.  In this case, the alleged son presented documentary evidence as well as testimony from one of the decedent’s friends and business associates.  This witness told how the decedent introduced the claimant as his son and publically recognized the claimant as his son.  Also, the name of the decedent’s record company included that of the son.  Another witness was the son’s mother, who identified the father-son relationship.

The Court reviewed the evidence and determined that clear and convincing evidence existed to establish kinship.

The son in the Scott-Heron case was fortunate that there were sufficient witnesses and documents to show his relationship to his father.  In many cases, however, such independent evidence can be difficult to obtain.  Thus, it would be a better route for a father to write a Last Will in which the non-marital child is recognized and provided for.  This would avoid lengthy and uncertain estate litigation.

If you have a question regarding kinship or an estate, Call Me Now for a free confidential review.  We provide reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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