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WHAT IS A KINSHIP CASE? KINSHIP LAW (COUSINS CASES)

13
Dec

By Jason Stern

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WHAT IS A KINSHIP CASE? Kinship Law (Cousins Cases)

Kinship cases are classic examples of estates gone very wrong. Whenever a client asks me, why do I need a will, I tell them about kinship law. Kinship Law is the body of NYS Law contained in the EPTL that directs the distribution of inheritance when there is no will, also known as intestacy. When someone dies intestate, or without a will, and leaves behind no surviving spouse, children, siblings or parents, kinship law determines who will inherit their estate.

During the first step in the kinship process one of the offices for the New York Public Administrator will begin marshalling any and all assets of the estate. An office of The New York Public Administrator, depending on where the decedent resided, will then attempt to contact any and all relatives to gather information about the decedent and their potential distributees. At this point New York Kinship Lawyers will get involved. As New York kinship attorneys we immediately begin working on behalf of the decedent’s relatives to ensure that the decedent’s estate is not deposited with the State of New York. Once the inheritance is deposited with the State of New York the requirements to make a showing of entitlement to the estate increases and becomes more difficult for the distributees to prove.

As New York Kinship Lawyers, we are left with the task of cleaning up these incredibly messy estates by showing through voluminous documentary evidence and testimony at trial each relative’s relation to the decedent pursuant to the EPTL. Our first priority is to isolate all potential surviving relatives such as grandchildren, nieces, nephews, and cousins. Pursuant to New York Kinship Law, the right to inherit stops after first cousins however under certain circumstances a first cousin once removed may be entitled to inherit under EPTL 4-1.1(a)(7). Often these Kinship Cases are referred to as Cousins Cases as Cousins are usually the only remaining relatives in proximity to the decedent.

If Kinship cases were not complex enough, there is almost always the question of non-marital children. Historically in New York State it was very difficult to come forward as a non-marital child of a decedent without a will. However pursuant to the April 28, 2010 enactment of EPTL 4-1.2(c) everything changed regarding the requirements to make a showing establishing paternity. Prior to the enactment of EPTL 4-1.2(c), the term non-marital child was a derogatory term often referred to as an “illegitimate person”. However the sheer number of these cases, 39,000 petitions were filed in the State of New York in 2006 alone, forced the Court to adopt a kinder more inclusive approach.

Currently, if your alleged non-marital father died without a will you can inherit your portion of his estate if you make a showing that he acknowledged you as his child “openly and notoriously” or by “clear and convincing evidence”. Whereas prior to the April 28, 2010 enactment a non-marital child would be required to show that they were the decedent’s child by both “open and notorious” means and “clear and convincing” evidence. Open and notorious can be established in a number of ways while clear and convincing evidence must be proven with DNA evidence also known as genetic markers. The clear and convincing prong of this law was an exacting standard of direct proof on the ultimate issue of paternity. This issue would often delay the progress of these Kinship cases while the Courts decided petitions for post-humus DNA sampling.

The revised approach revolutionized the legal rights of non-marital children giving them almost the same rights as marital children. In effect, almost anyone is free to come forward and claim their inheritance as a non-marital child if they can meet either prong of this law. However this revision solves as many problems as it creates. On one hand New York Surrogate’s Courts are now freed up to move these cases along without the numerous DNA petitions required to meet the previous burden. However many non-marital children who could not fulfill the clear and convincing burden are now able to proceed based on indirect evidence that is circumstantial. As such the newer, more inclusive law leaves these kinship estates open for fraud and frivolous litigation.

As a New York Kinship Lawyer, I cannot stress the value of having an attorney drafted will enough. The best way to handle a kinship case is to avoid one by having a will. However, if you or a loved one are the distributee of someone who died without a will and need legal counseling from an experienced New York Kinship Lawyer, please call one of our Estate Lawyers at the Law Offices of Jason W. Stern & Associates at (718) 261-2444 for a free consultation.