Estate, Powers and Trusts, § 4-1.4: Disqualification of Parent to Take Intestate Share

Because minors do not have "testamentary capacity" to make a last will and testament as required by law, distribution of a minor's estate will be based on New York's rules related to intestate succession. This means that a minor child's estate would go to the child's parents. There is, however, an exception to this general rule. Under New York Estate law a parent who neglected or failed to support his or her child will not be eligible to inherit that child's estate. Under Estates, Powers and Trust, § 4-1.1, a parent will not be able to inherit a deceased child estate if:

• The parent has failed to support the child or abandoned the child,
• The parent's rights have been terminated,
• The parent failed to follow a court's order to restore the relationship with the child.

This New York Probate rule applies even in cases where the decedent is an adult child, if the parent abandoned the child before the child's 21st birthday and did not restore a relationship with the child before the child's death. To make sure that your intentions are clearly stated in your will and to make sure that your will is properly executed, it is vital that you contact an experienced Westchester County Last Will and Testament Lawyer who understands the complexity of New York estate law and who will create an estate plan that is consistent with your goals.

Matter of Pessoni, 11 Misc.3d 245 (N.Y. Surr. Ct., 2005) Jason Pessoni died intestate. He was survived by his divorced parents, John Pessoni and Mary Ann Loehmann. Jason's estate consisted of about $10,000 and a cause of action for conscious pain and suffering and wrongful death. Jason's father, John Pessoni, filed a petition for letters of administration. Mary Ann Loehmann disputes John Pessoni's qualification as distributee based on EPTL 4-1.4 (a), which prohibits a parent from any distributive share in the estate of a deceased child where such parent "failed or refused to provide for, or has abandoned" such child before age 21, and has not resumed the parent-child relationship prior to the child's death. Based on evidence that John Pessoni ceased contact with Jason when Jason was 15 and never resumed communication with him, the court determined that John Pessoni was indeed disqualified from sharing in Jason's estate.

1. Descent and distribution of decedent's estate: Estates, Powers and Trust, § 4-1.1
2. Inheritance by non-marital children: Estates, Powers and Trust, § 4-1.2
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. No distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while such child is under the age of twenty-one years: (1) has failed or refused to provide for the child or has abandoned such child, whether or not such child dies before having attained the age of twenty-one years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child; or (2) has been the subject of a proceeding pursuant to § three hundred eighty-four-b of the social services law which: (A) resulted in an order terminating parental rights, or (B) resulted in an order suspending judgment, in which event the surrogate's court shall make a determination disqualifying the parent on the grounds adjudicated by the family court, if the surrogate's court finds, by a preponderance of the evidence, that the parent, during the period of suspension, failed to comply with the family court order to restore the parent-child relationship.
2. Subject to the provisions of subdivision eight of § two hundred thirteen of the civil practice law and rules, the provisions of subparagraph one of paragraph (a) of this § shall not apply to a biological parent who places the child for adoption based upon: (1) a fraudulent promise, not kept, to arrange for and complete the adoption of such child, or (2) other fraud or deceit by the person or agency where, before the death of the child, the person or agency fails to arrange for the adoptive placement or petition for the adoption of the child, and fails to comply timely with conditions imposed by the court for the adoption to proceed.
3. In the event that a parent or spouse is disqualified from taking a distributive share in the estate of a decedent under this § or 5-1.2, the estate of such decedent shall be distributed in accordance with 4-1.1 as though such spouse or parent had predeceased the decedent.

Settling the estate of a loved one can be complicated. Difficult family dynamics may impact how an estate is distributed, particularly where the decedent passed away without leaving a will. The staff at Stephen Bilkis & Associates, PLLC has years of experience representing clients in estate matters including drafting estate documents, will contests, and estate litigation. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate issue. We serve individuals throughout the following locations: