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KINSHIP LAW: ARE NON-MARITAL CHILDREN ENTITLED TO INHERIT?

2
Jun

By Jason Stern

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Kinship Non-Marital Children:

Are non-marital children entitled to inherit under the Kinship Law?

The answer is maybe. Recently our office litigated a very interesting Queens kinship case that involved a decedent who died without a will and no close living relatives. Our firm represented the decedent’s cousins who came forward in a kinship proceeding to collect the inheritance of their loved one. Surprisingly it is not as unusual as one would think for someone to die without a spouse, children, parents, sibling, grandparents and a will. In these instances family members are cited by one of the Public Administrator’s Offices of New York and notified of the passing of their loved one.

A highly qualified kinship law firm such as our own is then contacted by the family to retrieve the remaining assets from the decedent’s estate. This is the beginning of the kinship process and involves a labor-intensive search by our firm for any and all family members who may be entitled to collect under the Kinship Laws. As New York kinship lawyers we exhaustively gather any and all documentation to provide the Court, chronicling all living relatives who may exist in addition to those relatives that have predeceased (died prior to date of death) our decedent.

In the instant case, our firm encountered a person who claimed to be the non-marital, illegitimate brother of the decedent, and that he was entitled to the entire proceeds of his estate. The Estates, Powers and Trusts Law Section 4-1.2 provides that a non-marital child must prove their paternal relationship through a 2 prong test of either;

1. Clear and convincing evidence in the form of paternal DNA evidence with the decedent or,

2. That the person coming forward was held out to be the son of his biological father through, “open and notorious acknowledgment”.

Either prong of this test is sufficient to prove paternity and may be applied on its own. In our kinship case, the alleged non-marital son could not establish either prong of this test. The claimant’s father had passed away many years ago making it impossible to prove kinship through DNA testing. Additionally, the claimant’s father had never acknowledged this person as his son, was not named on his birth certificate and thus unable to prove the second prong of open and notorious acknowledgment as well.

Just because this claimant was unsuccessful in proving his non-marital kinship status doesn’t mean it cannot be done. If you think you or a loved one is the non-marital child of someone who died without a will, feel free to call The Law Offices of Jason W. Stern & Associates for a free kinship consultation.