NON- Marital Children - Lecture notes 5 PDF

Preview

Summary

New York Trust and Estates EPTL Lecture - non marital children...

Description

Trust and Estates Notes Spring 2020 NON-MARITAL CHILDREN !A child born out of wedlock (non-marital) is always considered the mother’s child–automatic share to the child…BUT if male/father decedent, then proof of paternity is required before child gets a share through intestacy –b/c it’s easier to biologically tell who the mother is vs. who the father is – more proof is required for the father ! Applies to both intestacy and wills Inheritance by Non-Marital Children EPTL §4-1.2. Inheritance by non-marital children [Proof of Paternity] • (a)(1) Non-marital children can inherit from mother and maternal kindred • (a)(2) Non-marital children can inherit from father and paternal kindred if: o A) A court has, during the lifetime of the father, made an ORDER OF FILIATION declaring paternity or if the mother and father executed an acknowledgement of paternity, which has been filed with the registrar of the district in which the birth certificate was filed; OR o B) Father signed an instrument acknowledging paternity (like putting his name in the punitive father registry) PROVIDED: ▪ I) Such instrument is acknowledged or executed or proved in the form required to entitle a deed to be recorded in the presence of one or more witnesses and acknowledged by such witness(es), in either case, before a notary public or other officer authorized to take proof of deeds and; ▪ Ii) Such instruments are filed w/in 60 days from the making thereof w/ the punitive father registry established by the state dept. of social services ▪ Iii) The dept. of social services shall, w/in 7 days of the filing of the instrument, send written notice by registered mail to the mother and other legal guardian of such child, notifying them that an acknowledgement of paternity instrument acknowledged or executed by such father has been duly filed; OR

o C) Paternity has been established by clear & convincing evidence, which may include, but is not limited to: ▪ I) DNA Test, or ▪ Ii) Evidence that the father open & notoriously acknowledged the child as his own (which includes open & notorious acknowledgement of pregnancy if he did not live for birth) ▪ Note: To prove paternity is not a reason to exhume a body (body wont be dug up for it) • (a)(3) just paying child support!not enough to establish paternity. • (b) If the non-marital child dies, his/her surviving spouse, issue, mother, maternal kindred, father and paternal kindred inherit and are entitled to letters of administration as if the decedent was a marital child, PROVIDED that the non-marital child is considered legit under the standards set forth in (a)(2) o SO UNDER 2-1.3- UNLESS A CREATOR EXPRESSES A CONTRARY INTENTION, A DISPOSITION IN A WILL TO ISSUE, CHILDREN, HEIRS, ETC. INCLUDES NON MARITAL CHILDREN BUT HAVE TO PROVE IT UNDER 4-1.2 TO TRIGGER IT. • Bottom line: if you prove paternity you get to inherit in all circumstances, just like from the mother – non-marital children is a matter of proof for fathers...