Under EPTL 4-1.4(a)(1), a parent is disqualified from inheriting from a child who the parent either abandoned or failed to support during the child’s lifetime.
Failure to support and abandonment are separate and distinct grounds. Proof of either will cause the parent to be disqualified under EPTL § 4-1.4(a)(1) unless the parent-child relationship is resumed before the death of the child. The party seeking disqualification must prove that the failure to support the child or abandonment was a voluntary or deliberate act. The burden of proof is on the party asserting disqualification. Neither “failure to support” nor “abandonment” is defined in the EPTL.
The duty to support is founded on the obligation in accord with Family Court Act §413, where the inquiry by the court is whether a respondent had sufficient means or the ability to earn such means to support the child and failed to do so in contrast with a mere unwillingness to perform the parental obligation. The general criteria applied in these cases is: (1) the duty to support, (2) the ability to provide the support, (3) grounds, if any, for relief from the duty.
Failure to pay child support can preclude assertion of the right to a distributive share of a deceased child. In re the Estate of Baecher, 198 AD 2d 221 (2d Dept 1993), a child’s mother asserted that the child’s father should not share in the deceased child’s estate due to the father’s alleged failure to pay child support. The parents were divorced at the time that the child was age 10, and the decree required the father to pay child support. The father urged the Surrogate to find that he had supported his child and that he paid support. The Surrogate rejected his claim after a trial where the decedent’s brother and mother testified as well as the decedent’s father. The father acknowledged that he did not make all support payments and contended that this was so because of a lack of income due to unemployment which caused him to stop payments. He claimed that he paid for substantial dental expenses, made undocumented payments, and that a court appointed referee that sold the marital home made payments on his behalf. The Surrogate found that he failed to provide support for his child. On appeal the Second Department agreed, finding that the father’s testimony that he made undocumented payments was not credible.
The rule is the same in the Third Department. In re the Estate of Brennan, 169 AD 2d 1000 (3d Dept 1991), arose from a determination of the Greene County Surrogate who determined that the deceased child’s father was not entitled to share in any proceeds from a wrongful death action involving the decedent. In that case the decedent’s father was successful in convincing the court that he did not abandon his child, however, on appeal the court affirmed that part of the underlying decision which found that the father had failed to provide for his child.
In his losing bid to share in his child’s estate the proof offered was that the father made about $350 in child support payments over ten years, despite an order requiring him to pay $25 a week. He urged that he had given his son presents, but they only amounted to three or four over that period. The father argued he was unable to support his son, but the proof was that he either was employed or received unemployment benefits when his efforts to support his child were meager at best. Finally, he argued that he had no obligation to support his son because his former spouse had remarried, and the new husband voluntarily assumed the support of the child.
Finding that to be meritless, the court held that the statute denies inheritance rights to a parent who has reneged on the parental obligation to support his child, and that disability cannot be cured by the fortuitous fact that another person supported the child while under no obligation to do so.
The rule is not insurmountable. In Matter of Ball, 24 AD 3d 1062 (3d Dept 2005), Lukas Ball died while in daycare. Both of his parents made application to the Surrogate for limited letters of administration to commence a wrongful death case.
His mother sought to disqualify the father from any taking under the intestate share arising from a wrongful death action on the grounds that the father abandoned and failed to support Lukas during his lifetime. Both made applications for summary judgment and ultimately, an evidentiary hearing was held.
Lukas was conceived after a four-month casual relationship and the mother and father had never married. His mother notified his father of her pregnancy at the end of their four-month relationship. Doubting that Lukas was his child, due to his inability to conceive a child with his ex-wife and his prior exposure to radiation, he had an angry conversation with the child’s mother and ceased contact at her request. When Lukas was born, his mother listed no one on the birth certificate or Medicaid application. Six months after birth the father was notified of the birth by the mother’s attorney.
The father immediately contacted the mother, set up a visit and saw the decedent in a matter of days. At the visit he gave her money. Thereafter, he contacted the county DSS in order for the decedent to receive benefits due to the father’s status. He admitted paternity in connection with the applications. In connection with a support case brought by the mother, he voluntarily gave a blood sample, and an Order confirming paternity was issued. He saw the child a second time and attempted visits but was denied access.
Unfortunately, the father’s efforts failed, and the Surrogate found that the father’s failure to disclose a Workers’ Compensation settlement award was sufficient evidence on which to find that he had failed to adequately support his son.
On appeal, the Surrogate’s decision was reversed. Critically, the Appellate Division reviewed the record in its entirety and found that the father could not have contacted his son prior to knowing that he was born, and further, that all of the father’s claims concerning the denial of access to his son were the same as those contained in his petition for custody in family court. The decision of the Surrogate was reversed as to the father’s disqualification to receive an intestate share of his son’s estate.
Read Part 3: Excluding a Parent From Sharing in a Child’s Estate Part 3- Abandonment.
Contributed by Jacque K. Vincent, J.D.