It is natural to be concerned for those you leave behind, especially your children. That fundamental concern is built into our legal principles in estate law in New York. Leaving a will is the most basic and important legal action you can take to ensure your loved ones will be provided for after your passing. However, when that step isn’t taken properly, the State has enacted intestacy laws that set forth how an estate will be distributed when someone dies without a will, the will they prepared was deemed unenforceable for one reason or another or the will leaves portions of the estate in a non-specified matter (such as “all of the residuary to my issue”). While a child may inherit under intestacy laws, it is more complicated for non-marital children.
Intestacy Rules for Non-Marital Children
New York’s Estates, Powers and Trusts Law (EPTL), Article 4 specifies when non-marital children of a decedent may inherit and it is one of the trickiest of the intestacy laws to navigate. A non-marital child may inherit from their mother and their mother’s kindred. On the other hand, a non-marital child needs to prove their relation to the father or non-gestating parent. If they can do so, they may inherit from that parent and that parent’s kindred.
A non-marital child proves they are the legitimate child of their father or non-gestating intended parent when:
(A) a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation or parentage declaring parentage or the parentage of the child has been established through the execution of an acknowledgment of parentage pursuant to section four thousand one hundred thirty-five-b of the public health law, which has been filed with the registrar of the district in which the birth certificate has been filed or;
(B) the father of the child has signed an instrument acknowledging parentage, provided that
(i) such instrument is acknowledged or executed or proved in the form required to entitle a deed to be recorded in the presence of one or more witnesses and acknowledged by such witness or witnesses, in either case, before a notary public or other officer authorized to take proof of deeds and
(ii) such instrument is filed within sixty days from the making thereof with the putative father registry established by the state department of social services pursuant to section three hundred seventy-two-c of the social services law, as added by chapter six hundred sixty-five of the laws of nineteen hundred seventy-six and
(iii) the department of social services shall, within seven days of the filing of the instrument, send written notice by registered mail to the mother and other legal guardian of such child, notifying them that an acknowledgment of parentage instrument acknowledged or executed by such parent has been duly filed or;
(C) parentage has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the parent openly and notoriously acknowledged the child as his or her own, however nothing in this section regarding genetic marker tests shall be construed to expand or limit the current application of subdivision four of section forty-two hundred ten of the public health law.
NY EPTL 4-1.2(a)(2).
Evidence of Parentage
It isn’t easy to establish parentage. For example, an order from a court directing someone to pay child support by itself does not satisfy EPTL 4-1.2(a)(2)(A). The appearance of a purported parent’s name on a birth certificate also does not alone qualify a non-marital child to inherit under this provision. In both cases, the court needs to make a specific finding of filiation for paternity to be established under that provision.
Most of the avenues to show parentage for a non-marital child must take place while the subject parent is alive. For instance, (A) specifically states that the court must make an order of filiation or parentage during the lifetime of the father, and under (B), the father himself must sign the operative instrument.
Therefore, the only two avenues available to a non-marital child after the father has passed are: (C) “(i) evidence derived from a genetic marker test, or (ii) evidence that the parent openly and notoriously acknowledged the child as his or her own.” The first option may be challenging because genetic material sufficient to get a test done may not be available.
As such, the court’s interpretation of (C)(ii) is imperative to the rights of a non-marital child in New York. In determining “open and notorious,” the courts have accepted affirmations submitted by parties other than the non-marital child, affirming that the father openly and notoriously acknowledged that the child was his. Even with these affirmations and additional proof such as photographs of the parent and child together or the child’s birth certificate with the father’s name on it, a court may still order a hearing on the matter.
Navigating such litigation is taxing and stressful for all family members involved. If you or someone you know may require legal advice regarding the inheritance rights of a non-marital child, please contact one of our trusted attorneys.