Challenging the Rights of Parent When Their Child Dies - EPTL 4-1.4

When someone passes away in New York State without a Last Will and Testament, they are deemed to have passed away “intestate.”  This means that their estate will be distributed in accordance with New York State’s rules of intestacy.


The rules of intestacy are found in New York State’s Estates Powers and Trusts Law (“EPTL”) §4-1.1. This law states for example that if someone died without a Will and they were married with children, their spouse would receive $50,000 plus one-half of the estate with the remainder would be divided among the decedent's children.

The law further states that if someone died with no spouse or children and without a will, their estate will be divided equally between their parents.  In the tragic event of a minor’s death, they will have no last will and testament (because the law requires a person to be 18 to execute a will) and, generally speaking, they will have no spouse or children.  This means that a child’s estate will be divided among their parents.  However, there is an exception carved out in the EPTL §4-1.4(a)(1) that states:

No distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while the child is under the age of 21 years 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 21 years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child.

This exception is included in EPTL 4-1.4 to address the issue of abandonment.  Essentially, NYS does not allow a parent who has abandoned their child to benefit from their estate in the event of their death.  A parent may be disqualified from sharing in their child’s estate for either a failure to financially support their child or for abandoning that child.

Failure to Provide Financial Support

Every parent has a duty to financially support their minor children as their financial situation allows. Even if they do not live with their child, they have to financially support their child by giving funds to the child’s custodial parent.  Failure to provide financially for a child will disqualify you from inhering from the child’s estate if the died intestate.


While the EPTL does not provide a definition of abandonment, New York Case law has defined it as “a voluntary breach of neglect of the duty to care for and train a child and the duty to supervise and guide his growth and development.”  The court will examine the facts surrounding the specific parent-child relationship in front of them.  For example, it is possible that a court may find abandonment when a parent has made no attempt to contact their child despite making the required financial support payments.  Even if a parent is precluded by  a court from having direct access to their child, courts will look to the level of involvement the parent had, relative to the limitations the court imposed. However, there have been cases where no abandonment was found when a father was unaware of a child’s existence for half their life, but once he learned of the child, he supported them financially and made efforts to be part of their life

In the event a child dies intestate and one parent (or the child’s siblings if the other parent predeceased) feels that the other parent should not be entitled to a share in the child’s estate, they may assert that the parent abandoned their child but the burden of proof will lie with the party claiming abandonment.  This disqualification from an intestate distribution will be based on the parent’s treatment of the child before they turned 18 even if the child lives past the age of 18.

Please call the Law Offices of Roman Aminov, P.C. at 347-766-2685 to speak to an experienced estate attorney to discuss your legal matter.

This article is for educational purposes only - to provide you general information, not to provide specific legal advice.  Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed attorney in your state.


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