nonmarital father

Inherit From Your Nonmarital Father

Can You Inherit From Your Nonmarital Father?

Last week Alice’s father died. Alice sought to become the Administer of his estate. Alice also wanted a piece of her father’s small fortune. There was only one small problem. Alice’s father was not listed on Alice’s birth certificate. Nor, for that matter, was Alice’s father married to Alice’s mother at the time of Alice’s birth. Nor, would Alice’s father ever be married to Alice’s mother. Alice had a nonmarital father.

So – Alice asked – could she inherit from her nonmarital father, the man who rocked her to sleep as a baby, who drove her to college, who told her to be strong, who had other babies with other mothers?

Pursuant to New York Estates Powers and Trust Law 4-1.2, You can inherit from your nonmarital father if:

  • There has been a a Court Ordered determination of paternity during the father’s lifetime (e.g. there exists an Order of Filiation or an Order of Paternity);
  • The father, during his lifetime, acknowledged paternity by signing a document which meets certain requirements set forth in Social Services Law;
  • Paternity has been established by clear and convincing evidence, such as genetic marker (e.g. DNA test) or evidence that the father openly and notoriously acknowledged the child as his own (e.g. obtain a letter from one of the father’s friends that confirmed that the father declared the person to be his daughter).

Many people now seek DNA testing in order to prove their relationship to the Decedent. Often times, however, the nonmarital father is dead and while the child certainly can give a sample of his/her DNA, the child does not often keep the father’s DNA ready and available. While Courts are not willing to exume the body for the purpose of obtaining a DNA sample, Courts have become open to other forms of testing, including avuncular DNA, that is, using sibling DNA to determine whether there is a relationship between the deceased and the alleged child.

While you have to prove your relationship to the Decedent by clear and convincing evidence, you only have to provide some evidence of your relationship to the Decedent to be entitled to a DNA test. The leading case about when the Court should Order a DNA test, as well as the amount of evidence that one has to present, in order to be entitled to a DNA test, is set forth in Matter of Poldrugovaz, 50 A.D.3d 117 (2d Dept. 2008).

In Poldrugovaz, a non-marital child and a decedent’s sibling both sought Letters of Administration. The non-marital child faced the burden of proving paternity in order to secure her entitlement to Letters of Administration. To support her claim of paternity, the non-marital child provided the report of the medical examiner, her own affidavit attesting to her resemblance to the decedent and a meeting she had with the decedent and another where the decedent acknowledged paternity, photographs of the decedent and the petitioner, and affidavits of several acquaintances. After submitting all of the above, the non-marital child then sought permission to conduct a posthumous genetic marker test on the decedent’s tissue specimen, obtained from the decedent’s body in the normal course of an autopsy. The Court in Poldruogaz held that a party may be entitled to an Order for a genetic marker test only after the party proffers some evidence that the decedent openly and notoriously acknowledged paternity during lifetime and establishes that genetic marker testing is practicable and reasonable under the totality of the circumstances.

Poldrugovaz set forth the following factors to be considered by the Court in determining whether the party seeking the genetic marker test has established the requisite amount of evidence:

a.       Whether evidence presented demonstrates a reasonable possibility that the genetic testing will establish a match;

b.      The practicability of obtaining the tissue sample for the purpose of conducting the genetic testing, including whether the sample is readily available;

c.       Whether there is a need to exhume the decedent’s body or obtain the sample from a non-party;

d.      Whether appropriate safeguards were, or will be, taken to insure the reliability of the genetic material to be tested; and

e.       The privacy and religious concerns of the decedent and or his family members.

So now the ball is in Alice’s court to obtain any of the above mentioned documents. If she can gather the documents to prove paternity she is one step closer to getting a piece of the golden nugget of her alleged father.

Additional resources provided by the author

For more information, please contact NYC Probate Litigation, Guardianship, NYC Probate and Estate Planning attorney Regina Kiperman:

Phone: 917-261-4514
Fax: 929-556-2089

Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005

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