Estate, Powers and Trusts, § 4-1.2: Inheritance by Non-Marital Children

Under § 4-1.2 of New York's Estate, Powers and Trusts law, there are special rules regarding how children born outside of marriage are treated for purposes of inheriting from a decedent. Typically, if someone passes away without leaving a will or if there is property that is not mentioned in a will, New York's laws of intestate succession govern how such property is to be distributed. Children automatically share in a decedent's estate along with the surviving spouse. § 4-1.2 of New York Estate law addresses situations where children were born outside of marriage. In the case of inheriting from the mother's estate, children born outside of marriage are considered the mother's legitimate children and will inherit from his or her mother's estate. On the other hand, a child will be considered an heir from his or her father's estate only if paternity has been established in one of the following ways:

1. The father acknowledged paternity,
2. A court issued an Order of Filiation during the lifetime of the father,
3. The mother and father executed an Acknowledgement of Paternity,
4. The father signed document acknowledging paternity, or
5. Paternity has been established by clear and convincing evidence, and he father openly acknowledged the child.

Because the requirements of New York Probate law are complex, the best way to ensure that all your children inherit from your estate and to avoid delays in asset distribution is to work closely with an experienced Bronx Probate Lawyer who will help you develop an estate plan that fulfills your goals and is in compliance with New York law.

In the case of Alaimo v. Mongelli, 2007 NY Slip Op 33857(U) (N.Y. Sup. Ct. 11/8/2007), decedent Vito Cristina passed away leaving a will that left his estate to his wife. At the time of his death Cristina was no longer married, and his will did not specify contingent beneficiaries. Stephanie DePace had a child, Katlyn, who she claimed was the daughter of Cristina. However, Christina married another man who legally acknowledged that he was Katlyn's father. Through a DNA test it was established that Cristina was indeed Katlyn's father. Based on the DNA test DePace argued that Katlyn was Cristina's sole heir and that she was entitled to inherit his estate. However, the court rejected DePace's contention noting that it was unclear from the records if the DNA test was completed before or after Cristina's death. Furthermore, there was no evidence that Cristina openly acknowledged Katlyn as his daughter as required by Estates, Powers and Trust Law § 4-1.2.

1. Descent and distribution of decedent's estate: Estates, Powers and Trust, § 4-1.1
2. Disqualification of parent to take intestate share: Estates, Powers and Trust, § 4-1.4
3. Other disqualifications: Estates, Powers and Trust, § 4-1.5
4. Disqualification of joint tenant in certain instances: Estates, Powers and Trust, § 4-1.6

1. For the purposes of this article:
   1. A non-marital child is the legitimate child of his mother so that he and his issue inherit from his mother and from his maternal kindred.
   2. A non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if: (A) a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity or the mother and father of the child have executed an acknowledgment of paternity pursuant to § 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 paternity, 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 § 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 paternity instrument acknowledged or executed by such father has been duly filed or; (C) paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own; or (D) a blood genetic marker test had been administered to the father which together with other evidence establishes paternity by clear and convincing evidence.
   3. The existence of an agreement obligating the father to support the non-marital child does not qualify such child or his issue to inherit from the father in the absence of an order of filiation made or acknowledgement of paternity as prescribed by subparagraph (2).
   4. A motion for relief from an order of filiation may be made only by the father and a motion for relief from an acknowledgement of paternity may be made by the father, mother or other legal guardian of such child, or the child, provided however, such motion must be made within one year from the entry of such order or from the date of written notice as provided for in subparagraph (2).
2. If a non-marital child dies, his surviving spouse, issue, mother, maternal kindred, father and paternal kindred inherit and are entitled to letters of administration as if the decedent were legitimate, provided that the father and paternal kindred may inherit or obtain such letters only if the paternity of the non-marital child has been established pursuant to provisions of clause (A) of subparagraph (2) of paragraph (a) or the father has signed an instrument acknowledging paternity and filed the same in accordance with the provisions of clause (B) of subparagraph (2) of paragraph (a) or paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own.

To ensure that your wishes are fulfilled and that your family and friends are taken care of in the manner of your choosing, it is important that you contact an experienced representative who will help you create a will that is part of an overall estate plan. The staff at Stephen Bilkis & Associates, PLLC has years of experience drafting estate plans for clients as well as trusts, powers of attorney, advanced health care directives and other estate planning documents. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations: