New York Probate Lawyer Blog
Kinship disputes are very common in New York estate cases. When a person dies his estate typically can be settled in one of two ways. If the decedent left a Last Will, the Will is offered for probate in the Surrogate’s Court.
In the event the decedent dies intestate (without a Will) then a petition for Letters of Administration is presented to the Court. An Executor or Administrator is appointed depending upon the type of Court proceeding.The New York Probate Lawyer Blog has reviewed many of the aspects of probate and intestate administration matters. One common requirement of all probate and administration filings is that the Court be fully informed as to the names and addresses of the decedent’s next of kin. These individuals are known as distributees.
Estate Lawyers are aware that identifying distributees is essential. In probate cases, the distributees are given notice of the proceeding because the distributees have a right to contest the Will. Will Contests are a type of estate litigation that are filed in the Surrogate’s Court. In intestate cases, the decedent’s distributees are the persons who have a statutory right to receive a share of the decedent’s estate. Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of decedent’s estate” sets forth the priority rights of distributees to receive a share of the estate.
As can be imagined, there are many disputes as to which persons qualify as distributees. A decedent can have multiple marriages that produce children and a decedent may have children that are born out of wedlock. Also, distributees such as brothers, sisters, nieces, nephews and cousins may be unknown or difficult to locate particularly if a decedent was born in a country outside the United States.
I have represented many persons in Surrogate’s Court matters concerning determining kinship. Sometimes a Kinship Hearing is needed to resolve these disputes.
A very important kinship determination relates to spousal rights. A surviving spouse of a decedent has a right to receive the largest share of the estate under EPTL 4-1.1 and also has a Right of Election under EPTL 5-1.1-A entitled “Right of election by surviving spouse”. A recent case decided by Manhattan Surrogate Nora Anderson on November 7, 2016 entitled Estate of Kirk is an example of the issues presented when spousal rights are claimed. In Kirk, an individual alleged that she was the surviving spouse of the decedent and, therefore, had the right to file an election against the decedent’s Will. The spouse in Kirk claimed that she was afforded marital status under a Texas law that recognized certain types of informal marriages. The application that was presented to Surrogate Anderson was a request by the alleged spouse for summary judgment granting her application for marital rights. After reviewing the Texas law and the facts presented, the Court denied the summary relief and determined that the issue of marital status would need to be determined at trial.
Kinship in Surrogate’s Court cases can involve very complicated presentations of evidence such as birth, death and marriage records. If you have a question regarding kinship in probate or administration or other estate problems, call me now for a free discussion.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.