As a NY estate lawyer practicing in Forest Hills, NY I can tell you without exception that the most interesting cases in the world are kinship estates. You only have to look as far as the artist formerly known as Prince’s estate to see how crazy these kinship estates can become. In NY when someone passes away without a will, their NY estate will pass through intestacy. Intestacy is another way of saying that the proceeds of their NY estate shall be distributed to the decedent’s next of kin, whoever that may be. Normally, if the decedent is survived by a spouse and issue (children), their spouse would inherit the first fifty thousand ($50,000.00) dollars plus one half of the remaining estate. The remaining half of the NY intestate estate would be distributed equally to the decedent’s children.
While NY intestacy laws seem straightforward few things in this realm ever are. For example, in the absence of a will, how do you prove the decedent’s next of kin when there are no clear distributees? Our firm has litigated a plethora of NY kinship cases, some involving wives who were more likely than not, bigamous, meaning the deceased had a wife or even wives from prior marriages whom he never divorced. As such who inherits that estate?
Most NY kinship estates involve first cousins claiming the assets of the decedent’s estate. These NY kinship claimants are required to prove their status as distributees under the Estates Powers & Trust Laws (EPTL) Section 4-1.1(a)(6). In order to do so, they must prove that no other relatives closer in lineage to the deceased survived the decedent and must show how many distributees survived if any. This is called closing the class and is much more complicated than one would think.
However additional issues arise in NY kinship estates when non-marital children attempt to claim a portion of their father’s inheritance. These non-marital claimants must prove their paternity to the decedent in order to inherit. These types of NY kinship estates are governed by a different statute than is applicable to first cousins of the deceased, Section 4-1.2(a)(2)(c) of the Estates Powers & Trusts Laws (EPTL). In order to inherit under the NY kinship law as a non-marital child, claimants must first make a showing that the parent either openly and notoriously held that child out as their own during their lifetime or by offering clear and convincing evidence of paternity, presumably in the form of DNA genetic marker testing. However, absent the existence of preserved DNA evidence of the deceased, the NY kinship law does not provide for the exhuming of remains for purposes of genetic marker testing.
Currently, Pilar Abel Martinez has made an application to the Court asserting paternity in the estate of her alleged father and world famous impressionist artist, Salvador Dali. Martinez contends to be the product of an affair between her mother and the renowned artist more than sixty years ago. Without anything to go on, Martinez petitioned a court in Spain where Dali died in 1989, to exhume the remains of the deceased artist after nearly thirty years of internment to conduct DNA genetic marker testing. Dali’s estate included over 1,100 works of art and has an estimated valuation of more than three hundred million ($300,000,000.00) dollars.
The exhumation of Dali’s thirty-year old remains has since been conducted and Martinez is currently awaiting the results of the DNA testing. Dali’s remains, interred in a crypt beneath his museum in Catalonia, had become so hardened that the collectors used saws to collect the samples. If successful, Pilar Abel Martinez may quickly become one of the wealthiest women in Spain.
Under NY kinship law there is no provision for the exhumation of remains for purposes of conducting DNA genetic marker testing to establish kinship. As a general rule Courts in New York are reluctant to disturb remains absent a compelling reason. Normally, NY kinship lawyers must establish kinship through voluminous documents determining affiliation by clear and convincing evidence and/or by establishing that the deceased openly and notoriously acknowledged the claimant as his own during his lifetime.
Unlike children who are born within a marriage, non-marital children do not share in a presumption that they are the child of their parents under the NY kinship law. However, in Matter of Dwight, 37 Misc 3d 580 (Surr. Crt. NY County), the Court held that if the parent does one of several affirmative acts to legitimize their non-marital child, the father can thus make his non-marital child his legal issue under the statute.
If you or someone you love is the non-marital child of a decedent, you may have rights under the NY estate law. Feel free to call an experienced NY estate lawyer at The Law Offices of Jason W. Stern & Associates, at (718) 261-2444 for a free consultation. Our Queens estate lawyers have nearly 45 years of combined NY estate law experience handling these often treacherous NY kinship cases for non-marital children in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Richmond, Orange, Dutchess as well as in the State of New Jersey.