The Lawletter Vol 45 No 5
When a person dies without a will, the decedent’s estate is passed via the statutory regime of intestate succession, representing the presumed intention of most people to gift their estate at death to their close heirs.
A decedent’s intestate heirs encompass one’s closest blood relatives (plus more remote relatives via representation through deceased family members who have died leaving surviving issue), plus any children that were legally adopted by the decedent, or their issue. However, while it is common nowadays for out-of-wedlock children to petition estate administrations in order to prove their relation to a claimed deceased father, the related circumstance also arises where the paternity of a presumptive child of marriage is challenged. In such a situation, may the parties interested in the estate contest the legitimacy of presumptively marital children where there is evidence that such a child was not, in fact, a blood relative of the decedent, as in the case of marital infidelity? While this question is poorly developed even nationally, New York law supplies authority suggesting that the requisite intestacy heirship determination may properly examine evidence that a presumed marital child is not a blood relation of the decedent upon proper prima facie evidence.
Although there is a well-settled legal presumption in the family law context that any child born during a marriage is legitimate, such presumption arose in order to protect the interests of the potentially extra-marital child from losing his or her relationship with, and support from, the mother’s husband, such that traditionally, courts would not allow husbands to contest the paternity of marital-born children. See, e.g., Comm’r of Soc. Servs. ex rel. N.Q. v B.C., 147 A.D.3d 1, 643 N.Y.S.3d 342, 2016 N.Y. Slip Op. 08613, at *5 (1st Dept. 2016) ("There is an established legal presumption that every person is born legitimate, a presumption which operates . . . in any case in which legitimacy is in issue. It is one of the strongest and most persuasive presumptions known to the law." (citations omitted)). Importantly, though, this same case acknowledges that this forceful policy statement favoring the presumption of legitimacy is not, in fact, uniformly followed anymore, and this presumption is now deemed rebuttable upon proper proof:
New York courts have continued to treat the presumption [of a marital child’s legitimacy] as a rebuttable one. To rebut the presumption, the challenger must disprove legitimacy by clear and convincing evidence[.]
2016 N.Y. Slip Op. 08613, at *6 (emphasis added) (citations omitted); see also Barbara S. v. Michael I., 24 A.D.3d 451, 805 N.Y.S.2d 425, 2005 N.Y. Slip Op. 09309, at *1 (2005) (paternity proceeding; held that the mother failed to overcome the presumption that the child, who was born during marriage, was the biological product of the marriage; "[T]his presumption [of the legitimacy of marital-born children] may be rebutted by clear and convincing evidence excluding the husband as the father or otherwise tending to disprove legitimacy.").
It has been held, for instance, that blood testing that excludes the husband as a child’s father provides the sort of clear and convincing evidence needed to rebut the presumption of the legitimacy of a child born during the couple’s marriage:
To rebut the presumption of legitimacy, access must be disproved by clear and convincing evidence. The result of a properly administered blood test which excludes the husband's paternity is sufficient to rebut the presumption.
Ghaznavi v. Gordon, 163 A.D.2d 194, 558 N.Y.S.2d 46, 47 (1990).
There are few cases applying this rebuttable presumption of the legitimacy of marital-born children to the intestate succession heirship determination context, but, clearly, this same standard that the presumption that children born during marriage are legitimate may be rebutted upon proper proof has long been applied in such circumstances. See, e.g., In re Laramie, 6 N.Y.S. 175 (Sup. Ct. Gen. Term 1889) (held that the Surrogate's Court possesses the power to determine who are the proper heirs of an intestate estate, and in that connection, the court has the power to inquire into the legitimacy of children born during marriage).
Note also that in intestacy proceedings, it is always the intestacy claimant that bears the burden of proof to show that he or she is a proper heir and descendant of a decedent who dies without a will, such that claimed heirs must also prove their status as rightful heirs related to the decedent by blood:
A claimant has the burden of proving kinship, and she must establish that she is Nora's closest surviving blood relative as defined in EPTL 4-1.1. This burden is met by a preponderance of evidence. For kinship to be established to the satisfaction of the Court, the claimant must make an evidentiary showing (1) how she is related to decedent, and (2) that no other persons of the same or a nearer degree of relationship survived decedent. Upon proof that no heirs other than those before the Court exist, the class of heirs may be “closed.”
In re Estate of Gavin, 41 Misc. 3d 232, 969 N.Y.S.2d 785, 787 (Sur. Ct. 2013) (emphasis added) (citations omitted). Nowadays, courts routinely utilize DNA evidence to supply the requisite conclusive evidence of paternity in the intestacy context:
Courts have accepted posthumously obtained DNA test results as clear and convincing evidence of paternity pursuant to EPTL 4-1.2(a)(2)(C) [i.e., an out-of-wedlock child is the legitimate child of his father for purposes of inheritance if paternity has been established; such claimed paternity by clear and convincing evidence]. Mitochondrial DNA analysis has been found reliable by the scientific community and is acceptable as evidence.
In re Kenneth V., 7 Misc. 3d 250, 2004 N.Y. Slip Op. 24543 (N.Y. Sur. Ct. 2004) (petitioner sought declaration that he was decedent's son and sole heir; the Surrogate's Court held that the DNA evidence presented by the claimed heir was sufficient to establish his paternity). Thus, not only may interested heirs challenge the legitimacy of a claimed heir upon proper proof, but the challenged heirs themselves must independently show they are rightful heirs related to the decedent by blood.
And where an heir claimant himself has acknowledged that he was not, in fact, the child of a decedent presumptive father, then that claimant cannot overcome the impact of his or her own conduct showing actual lack of paternity. In re Ridley's Will, 151 Misc. 474, 273 N.Y.S. 48 (Sur. Ct. 1934) (heir claimant’s own acknowledgment during life on banking forms, insurance applications, and a marriage license that the decedent was not his father excluded putative son as heir of decedent’s estate).
Therefore, because heir claimants are duty bound to prove their status as rightful heirs of a decedent, and because probate courts must determine who are the rightful heirs of the estate, it is a proper inquiry for the court to examine evidence of an heir claimant’s illegitimacy in regards to the decedent, because only blood (or formally adopted) issue of the decent (or the decedent’s ancestors) are rightful and proper heirs.