Special rules apply to inheritance by “non-marital” children, previously known as “children born out of wedlock,” when it comes to establishing the child’s right to inherit. Under New York’s Estates Powers & Trusts Law (EPTL) §4-1.2, a non-marital child is the legitimate child of his mother and may, therefore, inherit from his mother; however, a non-marital child may inherit from his father only if one of the following conditions is satisfied:
- During the lifetime of the father, paternity was established by an Order of Filiation.
- The mother and father executed and filed an acknowledgment of paternity pursuant to Public Health Law §4135-b.
- The father of the child signed an instrument acknowledging paternity (subject to further conditions).
- Paternity has been established by clear and convincing evidence.
Estate and probate lawyers can be instrumental in navigating these legal complexities and advising on how to meet the necessary evidentiary standards.
How do you establish paternity by clear and convincing evidence? Such evidence may include but is not limited to:
- Evidence from a genetic marker test (DNA)
- Evidence that the father “openly and notoriously” acknowledged the child as his own
What does “evidence that the father openly and notoriously acknowledged the child as his own” mean? It’s a question of fact that looks at numerous factors including but not limited to:
- Whether the father’s name appears on the child’s birth certificate
- Whether he supported the child
- Whether he lived with or visited the child
- Whether he sent cards or gifts on birthdays/holidays
- Whether he claimed the child as a dependent on his taxes
- Whether he participated in school activities
- Whether he told people that he was the child’s father
Typically, such evidence is presented to the Surrogate by way of an affidavit of a disinterested party – someone who does not stand to inherit from the estate – along with exhibits of documentary evidence.
