New York Inheritance By a Non-Marital Child Can Be Complicated

When a person dies without a Last Will he is said to have died intestate. As in all estate matters, a paramount issue is the determination of the decedent’s next of kin or distributees. The New York Probate Lawyer Blog has published many articles discussing the need to establish heirship. In many cases the Surrogate’s Court will require that there be a Kinship Hearing to legally determine the decedent’s closest living relatives. In an intestate estate the distributees get to receive a share of the estate. Estates Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, provides the priority of heirs who are to share in the estate.

An important issue that arises in kinship cases is that where a decedent was not married, and had non-marital children, there may be problems proving kinship for the unmarried father. EPTL 4-1.2 entitled “Inheritance by non-marital children” provides the requirements needed to demonstrate that a non-marital child is an heir of the deceased father.The statute provides a number of different paths that can be utilized to prove kinship. These include a lifetime acknowledgment of paternity by the decedent, clear and convincing proof provided by genetic marker testing, or evidence that the decedent “openly and notoriously acknowledged the child as his own”.

I have represented individuals in kinship cases in Surrogate’s Court where proof was required that the client was the non-marital child of the decedent. These cases can be complicated and proof of kinship in the form of testimony and documents is usually needed for Court approval.

A recent case decided by Manhattan Surrogate Nora S. Anderson on June 10, 2016 entitled Estate of Oscarsson, involved proof of kinship by a non-marital child. In Oscarsson, the non-marital child presented DNA tests and testimony from disinherited witnesses regarding the decedent’s paternity.  Based upon the evidence presented at the Kinship Hearing, the Court found that the claimant was the child of the decedent and, as a distributee, was entitled to inherit from his estate.

If you have a question regarding estate litigation or kinship proceedings in Surrogate’s Court, call me now for a free discussion.  As noted above, a lot of research is needed in these cases.  People who may have knowledge regarding the decedent family should be interviewed to see if they can be witnesses.  Genealogists may need to provide additional information regarding paternity.

New York Probate attorney Jules Martin Haas and has helped and represented clients in Probate and Administration proceedings for over 30 years. If you or someone you know is in need of assistance regarding a Queens, Manhattan or other New York Estate matter or have any questions regarding such proceedings, please contact me at (212) 355-2575.

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