Inheritance by Non-Marital Children (aka Children Born Out of Wedlock)

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.

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