Tag: EPTL

Is it fair for a parent to take an intestate share of a deceased child’s estate when that parent abandoned the child? The New York legislature says no. Pursuant to EPTL 4-1.4(a)(1), a parent is disqualified from taking an intestate share of a child’s estate on the ground of abandonment or nonsupport.

Originally, EPTL 4-1.4(a) provided that a parent who failed to provide for or abandoned the child while the child was under twenty-one years old, should be disqualified from receiving his/her distributive share in the deceased child’s estate unless the parental relationship and duties were resumed and continued until the death of the child. However, the statute has changed over the past twenty-five years.

The evolution of EPTL 4-1.4(a)(1) began when the statute was amended in 1993 to allow a biological parent to share in the estate where the parent could show that the parent had placed the child up for adoption, but that the adoption failed due to a fraud or deceit.

The provision was based on the infamous circumstances surrounding the case of Michele Launders, who hired attorney Joel Steinberg to arrange for the adoption of her unborn child, later named Lisa. Instead of arranging for a legal adoption, Steinberg kept the child for himself and his live-in companion, Hedda Nussbaum. Lisa suffered horrendous abuse and died as a result. After her death, her biological mother, Michele, attempted to pursue a wrongful death claim. But because Michele had abandoned Lisa, and Lisa had never been legal adopted by anyone else, there was no one with standing to bring the wrongful death suit. The 1993 amendment was intended to correct a perceived legislative injustice where the failure to support arose due to the act or omission of a third party, rather than the parent. After the amendment was adopted, Michele was permitted to proceed with the wrongful death suit.

In 2006, the statue was repealed and reenacted in an amended form. Additional grounds for disqualification were added. In instances where by an order a parent’s parental rights were terminated or suspended, the parent will be disqualified. The parent will also be disqualified if, in such a termination proceeding, (i) the Family Court suspended his or her parental rights pursuant to a suspended judgment; and (ii) the Surrogate’s Court subsequently finds, by a preponderance of the evidence, that the parent failed to comply with the Family Court order during the suspension period. The provision is intended to prevent an abusive parent from sharing in the intestate share of a child.

Although the legislature has not defined “abandonment” in the statute, courts apply common-law principles in determining what constitutes abandonment in cases involving EPTL. Courts have consistently held that abandonment includes the “voluntary failure of duty to care for and train a child and a failure to supervise and guide the child’s growth and development” (Matter of Wigfall, 20 Misc 3d 648 [2008]).

In a case where an adult daughter died tragically on September 11, 2011 in the World Trade Center attacks, the decedent’s siblings petitioned the court to disqualify their father from taking a distributive share in her estate on the grounds that their father had abandoned her (In re Estate of Gonzalez, 196 Misc 2d 984 [Sur Ct, Bronx County August 26, 2003]).

The decedent’s parents were never married and were unable to maintain a home for their three children. As a consequence, the two daughters were cared for by their maternal grandmother and great grandmother, and the son was taken in to foster care. The decedent’s mother pre-deceased her and the father relocated from New York to Florida when the decedent was seven years old.

The father provided no support for the children. He testified that he visited with the decedent occasionally when he visited New York or when she visited Florida, but he was unable to remember how many times they visited. He also testified that he had phone conversations with the decedent twice each year, yet she was the one who made the calls to him. The father was not even aware that the decedent worked in the World Trade Center until after her death.

In this case, the court framed the question of abandonment as whether the “father evinced an intent to forego his parental rights as manifested by his failure to visit with the decedent or to communicate with her when she was a child, although clearly able to do so.” The court held that insubstantial, infrequent visits or communications by the father with the child would not preclude a finding of abandonment, and that the father’s alleged long-distance love did not constitute the “natural and legal obligations of training, care and guidance owed by a parent to a child.” As a result, the court ruled that the father was not entitled to a distributive share of the decedent’s estate or to share in any wrongful death recovery on the grounds that he abandoned her.

However, in another case involving the World Trade Center attacks, a father was entitled to receive Workers’ Compensation death benefits even though, under EPTL 4-1.4, he had been disqualified as a distributee of the decedent’s estate based on abandonment (Crisman v Marsh & McLennan Cos., 6 AD 3d 899 [3d Dept 2004]).

Under Workers’ Compensation Law §16(4-b), surviving parents are entitled to a $50,000 death benefit. The administrator of the decedent’s estate successfully moved in Surrogate’s Court to disqualify the father as a distribute of decedent’s estate pursuant to EPTL 4-1.4 on the grounds of abandonment. Armed with a favorable decision from Surrogate’s Court, the decedent’s mother sought a review by the Workers’ Compensation Board to disqualify the decedent’s father from receiving half of the Workers’ Compensation death benefit based upon his abandonment of the decedent when the decedent was an infant. Nevertheless, the Board denied the mother’s request and directed $25,000 in death benefits to be paid to each parent.

Upon appeal to the Appellate Division, the Court held that the Workers’ Compensation statute provides that where an employee is not survived by a spouse, child or certain other disabled or dependent individuals, the employee’s death benefit shall be paid to the deceased’s surviving parents. The Court held that absent any qualifying or limiting language, the Workers’ Compensation Board did not have authority to carve out an exception and exclude a parent who abandons his child. The plain terms of the Workers’ Compensation Law unequivocally provide for payment of a death benefit to the decedent’s surviving parents.

Similarly, a father who abandoned his son was also entitled to life insurance proceeds (Estate of Benjamin Joseph Bortzfield, 2006 NY Misc LEXIS 9769 [Sur Ct, Suffolk County January 5, 2006]). In this case, the decedent died intestate and was survived by his parents. The decedent’s life was insured through his employer, but he failed to designate a beneficiary for the policy. The policy provided that where no beneficiary is designated, the benefits would be paid in equal shares to the surviving (1) spouse; (2) children; (3) parents; or (4) brothers and sisters. The decedent was unmarried and had no children, therefore his parents were the beneficiaries of the policy.

The insurance company commenced an action in the United States District Court for the Eastern District of New York to resolve the conflicting claims by the parents. The parties entered into a settlement agreement which provided that the mother would receive one-half of the policy amount and the other half would be held in a separate account until the Surrogate’s Court action concluded.

The decedent’s mother sought to have the father disqualified under EPTL 4-1.4 on the grounds that the father had abandoned their son. The policy did not define or qualify the term “parents,” so the Surrogate’s Court construed the term using its “usual and commonly understood meaning.” As such, the Court held that even a father who abandoned his child was still a parent. The Court ruled in favor of the father and awarded him his share in the life insurance proceeds.

The bottom line here is that, although a parent can be disqualified from inheriting a deceased child’s estate on the grounds of abandonment, he/she may still inherit Workers’ Compensation death benefits and life insurance proceeds. These decisions turn on highly fact specific analysis and often detailed factual evidence submitted by both sides. Because of this, practitioners and parties are well advised to prepare for an adversarial evidentiary hearing at the outset.

Contributed by Jacque K. Vincent

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.

This issue arises in cases involving minor children as well as adult children. Sadly, prior to September 11, 2001, most cases involved ordinary negligence, medical malpractice and wrongful death circumstances. As a result of the deaths at the World Trade Center, more cases were reported involving the deaths of adult children who died at work. Most cases involve decedent’s who die intestate. However, a recent case deserving some attention is In the Matter of Martirano (2018 NYSJ LEXIS 4306, Sur Ct, Ulster Co, April 12, 2018) which involved the death of an adult child with a will.

The “child” in the case would have been 52 years old at the time of the Court’s decision. The Decedent died quite young, at age 48 and left an estate valued at about $1,000,000. His will was witnessed by the will’s primary beneficiaries. The Court found their bequests to be invalid under EPTL 3-3.2(a)(2). Under EPTL 3-3.2(a)(2), a disposition made in a will is void where the will cannot be proved without the testimony of the witness to whom a beneficial disposition is made.

Since the disposition made in the will was void, the estate passed by intestacy. Where the property of a decedent is not disposed of by a will, the property will be distributed pursuant to EPTL § 4-1.1. Under EPTL § 4-1.1(a)(4), if a decedent is survived by one or both parents, and had no spouse or children, the estate goes to the surviving parents. This set up the scenario that the decedent’s mother, Linda, was his sole distributee and stood to inherit everything.

When he learned of this outcome, the decedent’s older brother, Michael, asserted that their mother abandoned her children and therefore was barred from inheriting due to parental disqualification. His argument was based upon an application of EPTL 4-1.4(a)(1), which imposes an equitable penalty on a parent found to have forsaken his or her parental obligations.

Michael petitioned for declaratory relief. He offered Catholic Welfare Bureau records covering the decedents years in foster care. They stated that the decedent was abandoned by his mother at a bus terminal, that she found it impossible to care for him, and that she was a depressive person who took off with another man during her husband’s imprisonment.

The Court’s decision follows the life of this fractured and tattered family from the 1960s, when a child was born in “disgrace” to Linda at age 15, and she married the child’s father who was in and out of jail. She could not afford rent and they lived on welfare and with friends. When Linda left the children with relatives, they refused to return them to her. She did not go to court or seek the police for their assistance in the return of her children.

Years went by with sporadic telephone contact until the children were found alone in a department store. They were placed in the custody of Catholic Charities at an orphanage and became wards of the court. Linda sought their return and was denied. Ultimately, she cleaned up her act and was given custody of some of the children but not the decedent.

In this case, the Court did not consider all of the very detailed factual information on the motion because the Court found the evidence to be hearsay. Hearsay evidence may be considered in opposition to a motion for summary judgment, but only where it is shown that the defect is curable at trial. As decedent’s brother did not offer any excuse as to why the materials were not in admissible form or how he would produce the materials in admissible form at trial or otherwise offer alternative proof, the evidence was not considered. He was stuck, as he candidly admitted that he had no memory of the events. In the end the only person with personal knowledge was decedent’s mother.

The Court’s 16-page decision is very detailed and very fact specific and despite many facts against her, the Court found that Linda did not abandon her son and she did not fail to support him. The decision is a must read for a practitioner faced with either prosecuting or defending claims of abandonment or failure to support.

Sadly, there are many cases where parents return to their deceased children’s lives in connection with the potential rewards associated with wrongful death actions or lucrative estates. In many cases the parents do not prevail in their efforts to share. Matter of Martirano is different and therefore, instructive. It is also requires consideration in connection with the difficulties of proof in these cases, particularly, adult child cases.

We will have to follow this decision if it makes its way to the appellate division.

Read Part 2: Excluding a Parent From Sharing in a Child’s Estate Part 2- Failure to Support.