Disinheritance OF NON- Marital Children PDF

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New York Trust and Estates EPTL Lecture...

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Trust and Estates Notes Spring 2020 DISINHERITANCE OF NON-MARITAL CHILDREN EPTL §2-1.3 (NY codified Hoffman case) !Hoffman Ct held: “Issue” includes illegitimate (non-marital) children, unless contrary to the will (could exclude if in the will) You can say in your will that you DO NOT want non-martial children to be considered your “issue” • Terms: o “To my issue” = to my marital and non-marital children o “To my lawful issue” = to my marital children only (excludes nonmarital children) o “Illegitimate children” = non-marital children

ADOPTED CHILDREN NOTE: “give up for adoption” means to give child to an adoption agency, not a family member ! Overarching public policy that adoption creates a new family and we want to keep it in tact – want to cut ties with the birth parents–want all the rights and obligations of the family with the adopted family and not the birth family EPTL 2-1.3(a) (testate – by instrument) • Triggered when testator uses term “issue” in his/her will & there’s an adopted child involved in the mix • Note: similar to 4-1.1(d) • Unless the testator expresses a contrary intention, adopted children and their issue can inherit just like marital children!!!! ! Adopted children are treated as biological children Domestic relations law • Under 4-1.1(d), the right of an adopted child to take a distributed share and the right of succession to the estate of an adopted child shall continue as in

provided in DRL §117!!! Provides for the right of an adopted child to take in intestacy. o Matter of Best- Grandmother made a trust and wanted trust to be held for daughter and then upon her death, to the daughter’s issue. Daughter had a baby that she put up for adoption, and then later when she got married had other kids. The court held that the adopted child could not collect under the trust. Legislature wanted to codify this result and adopted this statute (DRL) ▪ Policy-when a child is “adopted–out” of a family, that child is not part of the family anymore & cannot inherit–the intent of legislature is to create a new family and NOT have that child part of the old family. BUT if you are adopted within the family, then that’s another story. ▪ If you want the adopted child to still inherit, you can mention the child by name in the will....