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Why Having A Will Is Important When A Decedent Has Non-Marital Children

The preparation and execution of a Last Will and Testament is always an important part of estate planning.  A Will allows a testator to specifically provide for the disposition of assets to the individuals he wants to benefit.  A testator’s intentions can be clearly set forth.   The New York Probate Lawyer Blog has discussed the benefits and specifics regarding planning an estate in many prior posts.

It is particularly essential to create a Will when a decedent is survived by a non-marital child or children.  When a person dies intestate or without a Will his estate is inherited by his distributees (next of kin).  In a situation when there are children born outside of the marriage, the issue of kinship can get complicated.  Estates, Powers and Trusts Law section 4-1.2 entitled “Inheritance by non-marital children”, sets forth the rules to be followed in these cases.  The statute provides that a child born out of wedlock is the mother’s legitimate child, so that he and his offspring can inherit from her.

However, with regard to non-martial children of a father, such children can only inherit if they prove their kinship in a number of alternative ways.   One way is if there has been a determination of paternity.  Another possible form of proof is by a blood genetic marker test.  Also, paternity may be shown by clear and convincing evidence that the father openly and notoriously acknowledged that the child was his.

As can be imagined, proving paternity after a person dies can be very difficult due to the lack of available evidence.  A recent Manhattan estate case decided by Manhattan Surrogate Rita Mella on May 2, 2019 entitled Matter of Estate of Scott-Heron shows the problems presented in these matters.

In Scott-Heron a non-marital son of the decedent presented evidence that his father openly and notoriously acknowledged him as his son.  The evidence presented included testimony from his father’s friend and business associate that the father publicly acknowledged his son as his child.  There was also testimony from the son’s mother and a letter written to the son by the decedent.  Additionally, the decedent had made references to his son in record albums which he had produced.  Based upon this evidence, the Court found that the son was entitled to inherit from the decedent.

The problem of demonstrating kinship for a non-marital child can be avoided by creating a Will and estate plan that clearly provides for the child.  I have represented non-marital children in many Surrogate’s Court proceedings and estate litigation.  I have also been involved with many other kinship proceedings.  Call me now for a free review of your estate issue.   We offer reasonable and flexible fee arrangements and person representation.

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 Suffolk County.   If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

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