What are the rights of illegitimate children to inherit from their Father in New York?
Full Question:
Answer:
4-1.2 Inheritance by non-marital children
(a) For the purposes of this article:
(1) A non-marital child is the legitimate child of his mother so that he and his issue inherit from his mother and from his maternal kindred.
(2) A non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if:
(A) a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity or the mother and father of the child have executed an acknowledgment of paternity pursuant to section four thousand one hundred thirty-five-b of the public health law, which has been filed with the registrar of the district in which the birth certificate has been filed or;
(B) the father of the child has signed an instrument acknowledging paternity, provided that
(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 or witnesses, in either case, before a notary public or other officer authorized to take proof of
deeds and
(ii) such instrument is filed within sixty days from the making thereof with the putative father registry established by the state department of social services pursuant to section three hundred seventy-two-c of the social services law, as added by chapter six hundred sixty-five of the laws of nineteen hundred seventy-six and
(iii) the department of social services shall, within seven 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 acknowledgment of paternity instrument acknowledged or executed by
such father has been duly filed or;
(C) paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own, however nothing in this
section regarding genetic marker tests shall be construed to expand or limit the current application of subdivision four of section forty-two hundred ten of the public health law.
(3) The existence of an agreement obligating the father to support the non-marital child does not qualify such child or his issue to inherit from the father in the absence of an order of filiation made or acknowledgement of paternity as prescribed by subparagraph (2).
(4) A motion for relief from an order of filiation may be made only by the father and a motion for relief from an acknowledgement of paternity may be made by the father, mother or other legal guardian of such child, or the child, provided however, such motion must be made within one year from the entry of such order or from the date of written notice as provided for in subparagraph (2).
(b) If a non-marital child dies, his or 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 father and paternal kindred may inherit or
obtain such letters only if the paternity of the non-marital child has been established pursuant to any of the provisions of subparagraph (2) of paragraph (a).
If an illegitimate child is born after the execution of a Will of his or her Father the child is entitled to inherit as an after-born child under 5-3.2
5-3.2 Revocatory effect of birth of child after execution of will
(a) Whenever a testator has a child born after the execution of a last will, and dies leaving the after-born child unprovided for by any settlement, and neither provided for nor in any way mentioned in the will, every such child shall succeed to a portion of the testator's
estate as herein provided:
(1) If the testator has one or more children living when he executes his last will, and:
(A) No provision is made therein for any such child, an after-born child is not entitled to share in the testator's estate.
(B) Provision is made therein for one or more of such children, an after-born child is entitled to share in the testator's estate, as
follows:
(i) The portion of the testator's estate in which the after-born child may share is limited to the disposition made to children under the will.
(ii) The after-born child shall receive such share of the testator's estate, as limited in subclause (i), as he would have received had the testator included all after-born children with the children upon whom benefits were conferred under the will, and given an equal share of the
estate to each such child.
(iii) If it appears from the will that the intention of the testator was to make a limited provision which specifically applied only to the testator's children living at the time the will was executed, the after-born child succeeds to the portion of such testator's estate as
would have passed to such child had the testator died intestate.
(iv) To the extent that it is feasible, the interest of the after-born child in the testator's estate shall be of the same character, whether an equitable or legal life estate or in fee, as the interest which the testator conferred upon his children under the will.
(2) If the testator has no child living when he executes his last will, the after-born child succeeds to the portion of such testator's estate as would have passed to such child had the testator died intestate.
(b) The term "after-born child" shall mean a child of the testator born during the testator's lifetime or in gestation at the time of the testator's death and born thereafter. For purposes of this section, a non-marital child, born after the execution of a last will shall be
considered an after-born child of his or her father where paternity is established pursuant to section 4-1.2 of this chapter.
(c) The after-born child may recover the share of the testator's estate to which such child is entitled, either from the other children under subparagraph (a) (1) (B) or the testamentary beneficiaries under subparagraph (a) (2), ratably, out of the portions of such estate
passing to such persons under the will. In abating the interests of such beneficiaries, the character of the testamentary plan adopted by the testator shall be preserved to the maximum extent possible.
