New York Intestate Rights of Adopted Children Can Be Complicated

Kinship-blue-200x300The initial inquiry when a person dies is whether or not the decedent has a Last Will and Testament.  Where a Will exists, a probate proceeding is commenced in the Surrogate’s Court.  Assuming the Will is admitted to probate, the terms of the document control the appointment of an executor and the distribution of estate assets.  Will contests and other issues regarding jurisdiction may delay the probate process.

In situations where there is no Will, the procedure is to obtain letters of administration in an intestate estate.  The appointment of an administrator is controlled by Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration.”  Priority of appointment is given to the closest surviving next of kin, also known as distributees.  Distribution of the assets of the estate is also provided for the closest surviving distributees.  Estates, Powers and Trusts Law Section 4-1.1 sets forth the priority of distribution.  The New York Probate Lawyer Blog has discussed the many issues and aspects of both probate and intestate administration proceedings in the Surrogate’s Court.

One of the basic issues in any estate case is determining the identity of a decedent’s distributees.  Figuring out a person’s next of kin, particularly in an intestacy case, directly affects the appointment of the administrator and the distribution of assets.  Next of kin identity may be very hard to determine.  A decedent may not be survived by any close relatives such as a spouse or children.  Also, a person may not have had much contact with extended family for decades, and family members may reside in other states or countries.  Where kinship is unclear, the Court may need to engage in estate litigation and require a kinship hearing.  Since these matters often require testimony and family history documents such as death, birth and marriage records, a professional genealogist may be needed.

An interesting matter was recently presented to the Brooklyn Surrogate’s Court.  In the Administration Proceeding, Estate of Walter Ostapenko, Deceased, decided by Brooklyn Surrogate Bernard J. Graham on October 30, 2023, the issue of inheritance rights of an adopted-out child was presented.  In Ostapenko, a petitioner claimed to be the sole intestate heir of the decedent.  It was claimed that the decedent was the non-marital father of the petitioner.  As to this aspect of the case, the Court held a kinship hearing.  EPTL Section 4-1.2 entitled “Inheritance by non-marital children” provides the various ways by which a person can establish inheritance rights from a non-marital father.  Based upon the findings at the hearing, the Brooklyn Surrogate determined that the petitioner was the decedent’s child.  However, the inquiry did not end there.  In fact, the petitioner had been adopted by her stepfather.  Thus, there was an issue as to whether the adoption terminated petitioner’s inherence rights from her natural parents.  In examining this issue, the Court noted that EPTL 4-1.1(d) refers issues concerning adoptive child’s rights to the provisions of the Domestic Relations Law.  The Court further found that pursuant to DRL 117 where the adopted-out child’s parent is a descendent of the child’s maternal grandparent and the adoptive parent is married to the child’s natural parent, the child does not lose the right to inherit from a natural parent.  As stated by the Court, “The Petitioner, as the adopted-out child, inherits through the Decedent, her birth father, because the Decedent is a descendant (son) of the adoptive child’s birth grandparents … and the Petitioner was adopted by her stepfather.”  The Court went on to note that “Petitioner’s right to inherit from or through either birth parent did not terminate upon her adoption.”

As can be seen from Ostapenko, estate settlement, particularly where there are kinship issues, can be difficult.  The guidance of an experienced estate lawyer can be essential.  Do you have an estate question or problem?  I have been representing clients in probate, administration and other estate cases for over 40 years.  Call Me Now for a free confidential review of your issue.  We offer 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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