I recently read an article on People.com about a poor young man who became “Lord of the Manor” after DNA proved he was the heir of a wealthy British aristocrat (https://people.com/human-interest/care-worker-inherits-60-million-english-estate-dna-test/). This got me wondering what happens in New York when a non-marital child shows up after the parent is deceased and demands his inheritance. Does he have a right to inherit Mom or Dad’s estate? How do the marital children, if any, respond to his demands?
New York Estates, Powers and Trust Law Section 4-1.2 specifically addresses the question of inheritance by non-marital children. In New York, a non-marital child is the legitimate child of his mother and can inherit from his mother and from her family unless specifically excluded.
But, the rules are different for a non-marital child to inherit from his father’s estate. Before a non-marital child can inherit from his father, paternity must first be established. Section 4-1.2 sets out three methods to establish paternity: (i) an order of filiation issued by a court during the lifetime of the father; (ii) a signed acknowledgement of paternity by the father; or (iii) clear and convincing evidence of paternity, which may include, but is not limited to, DNA evidence or evidence that the father openly and notoriously acknowledged the child as his own.
In some situations, the father either did not know about the child, or he kept the existence of his secret love-child from his family. One way an unknown or secret non-marital child can establish paternity would be through DNA evidence. The burden is on the non-marital child to prove he is the decedent’s child with clear and convincing evidence. First, the non-marital child must commence a Surrogate’s Court proceeding to establish inheritance rights to the father’s estate. A pre-trial motion can then be made for an order to posthumously perform a DNA test.
A court may grant a motion for posthumous DNA testing where the non-marital child provides some evidence that the decedent openly and notoriously acknowledged paternity and establishes that the testing is practicable and reasonable under the totality of the circumstances. (Matter of Poldrugovaz, 50 AD3d 117, 129 [2d Dept 2008].) Factors that courts consider include (i) whether evidence presented demonstrates a reasonable possibility that the testing will establish a match; (ii) the practicability of obtaining the tissue sample for the purpose of conducting the test, including whether it is readily available; (iii) whether there is a need to exhume the decedent’s body or obtain the sample from a nonparty; (iv) whether appropriate safeguards were, or will be, taken to insure the reliability of the genetic material to be tested; and (v) the privacy and religious concerns of the decedent and or his family members. (Matter of Betz, 74 AD3d 1459, 1463 [3d Dept 2010].) The rule is to safeguard the estates of decedents from fraudulent claims. The last thing grieving families need is to have someone show up claiming to be their father’s child and demanding his inheritance without any evidence to back up his claim.
Contribution by Jacque K. Vincent, J.D.