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 are satisfied:

  • During the lifetime of the father, paternity was established by an Order of Filiation; or
  • The mother and father executed and filed an acknowledgment of paternity pursuant to Public Health Law §4135-b; or
  • The father of the child signed an instrument acknowledging paternity (subject to further conditions); or
  • Paternity has been established by clear and convincing evidence.

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); or
  • 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; and
  • 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.

Do You Need The Help Of An Estate & Trust Litigation Attorney In The New York Metro Area?

If you need legal help with an estate issue you should speak with an experienced estate litigation attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

Daniel R. Antonelli
Representing trust & estate clients with an emphasis on estate litigation in the New York City Metro Area.
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