When a child is born to parents who were not married at the time (and, depending on the county, not subsequently married), they are considered a non-marital child. Inheriting from the estate of a non-marital father can be a complicated matter. Marital children benefit from the marital presumption of legitimacy – the idea that children who are born within a marriage are presumed to be the offspring of their wedded parents – non-marital children are afforded no such presumption. If you are not listed by name in your father’s Last Will and Testament and he merely lists “my children” as beneficiaries, or worse yet, if your father died intestate (without a Last Will and Testament), you have the burden of demonstrating your relationship to the Surrogate’s Court by clear and convincing evidence in order to share in his estate. Non-marital children must demonstrate that paternity was either openly and notoriously acknowledged by the decedent during his lifetime or by actual DNA evidence through a paternity test. This requirement is addressed in New York’s EPTL 4-1.2.
The fact that a father’s name appears on a child’s birth certificate is not sufficient “clear and convincing evidence” of paternity. In order to establish that a father openly and notoriously acknowledged a child as his, he needs to have done so in the child’s community (though it is not necessary that he shares his relationship to the child with his own close friends and relatives). The idea behind this method of demonstrating paternity is that if a father openly acknowledged the child, then he must have been sure that the child was his.
A non-marital child may present evidence to show open and notorious acknowledgement such as: pictures of themselves with the father, affidavits or testimony from friends and relatives stating that the father openly and notoriously acknowledged the child or that they saw them together engaging in a father-child relationship. The child may even present correspondence such as text messages or emails from the decedent in which he acknowledged the child. A child may also present proof in the form of a court ordered determination of paternity during the child’s lifetime, or a document signed by the father acknowledging paternity during his lifetime that meets that standards under Public Health Law §4135-b.
The issue becomes further complicated if the child is unable to produce evidence that the father openly and notoriously acknowledged them and no paternity test was conducted during the decedent’s lifetime, as genetic material is not always available after the decedent’s death. Generally, courts will not grant permission to exhume the decedent’s body in order to obtain a DNA sample for paternity testing. However, they will often allow a non-marital child to use a sibling’s DNA to determine whether there is a familial relationship.
A non-marital child will only have to show some evidence of their relationship to the decedent before they will be granted a DNA test and this evidence does not need to meet the clear and convincing evidence standard required to prove paternity for inheritance purposes. The generally accepted test used by New York Probate courts in determining whether a non-marital child should be entitled to a DNA test comes from the court in Matter of Poldrugovaz, 50 A.D.3d 117 (2d Dept. 2008). In Poldrugovaz, the Court determined that a non-marital child would be entitled to a DNA test if they were able to offer some evidence that they were openly and notoriously acknowledged by the decedent as his child during his lifetime and that a DNA test is practical and reasonable given all of the facts and circumstances.
An experienced estate attorney can help you assert your inheritance rights in matters where paternity may be at issue. Call the Law Offices of Roman Aminov, P.C. at 347-766-2685 to discuss your rights during a free confidential phone consultation.
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