When Is a Child an Heir under New York Law?

In days gone by, legitimate heirs were the product of a legitimate marriage.   Any child born of a legitimate wife was considered to be the heir of her husband.  Hence, a woman’s virginity prior to marriage was a necessary precondition of the propertied classes, as was her fidelity during marriage.  Adultery by the wife was a crime against property for it chanced to produce an heir who was not the issue of her spouse, thereby depriving the legitimate heirs of a portion of their birthright.    Of course, a man could sow his “seed” far and wide and, unless he recognized the child as his own, the illegitimate child would never inherit from the father.  

But family construction is much more fluid these days, and the laws of New York have sought to respond to these changes.  The legal standard remains the best interest of the child, and the laws seek to protect the child’s welfare.  Let us look at a few of the more common scenarios where establishing legal paternity means that the child will also inherit from his/her father in intestacy.

 A.  Child Born of an Unwed Mother

While our society and our laws no longer impose the stigma of illegitimacy or bastardy on an innocent child, the laws governing intestacy in New York nonetheless provide the parameters for defining who is a legitimate heir.  This is necessary to protect the rights of succession of legally-recognized descendants and to arrange for the orderly transfer of property. 

Until 1997,  no formal acknowledgment was required by the father for the mother to list his name as the child’s father.   But because paternity brings with it a host of legal and financial obligations, New York State’s Public Health Law §4135 now requires that the father fill out and sign a form formally acknowledging legal paternity of the child.   The law was passed to prevent fraud.

A putative father can also petition the court for an order of filiation to establish paternity.  The court may order DNA testing in order to establish filiation.  Putative fathers are also encouraged to register with the New York State Putative Father Registry (a non-public registry) so that they can be notified should the child, for example, be put up for adoption.

With an acknowledgment of paternity, the child is vested with certain rights, including inheritance rights, rights to support until age 21 or emancipation, Social Security survivor benefits, among others.  The father also gains support obligations and rights such as the right to refuse adoption or foster care of the child, the right to consent to medical treatment for the child, and the rights of shared custody and visitation, among others.

It is worth noting here that if the putative father is under the age of 18, he does not have the legal capacity to establish paternity in this way (or in court) without legal representation.  As a minor he cannot enter into a legally binding contract.  The contract is voidable.  However, upon reaching majority the putative father can expressly ratify the contract, and the ratification brings with it all of the rights and obligations of paternity.

B. Adopted Child

Adoption was uncommon prior to the 19th century, and today remains the province of each state to govern. In New York, adopted in children may inherit from their adoptive parents but not from their biological parents, unless the biological parent specifically names the adopted out child as a beneficiary in a duly executed Will. The law also permits step-parent adoption and second parent adoption in cases of same-sex couples. Where a child has been conceived through surrogacy, a practice not permitted in New York, then the non-biological parent(s) must petition the court for paternity in the case of the father and for adoption in the case of the second  mother. 

C. A Child Born of a Marriage but Where the Father is not the Wife’s Husband

Because a child born of a legal marriage is presumptively the husband’s child, this raises special concerns for both the husband and the biological father.  As we discuss these scenarios, it is important to remember that the best interests of the child remains the legal standard.

Should the biological father wish to be declared the legal father of the child, then either the mother or the alleged father can petition the Family Court.  The petition will state that the child was not a product of the marriage, that the mother is married but not to the alleged father, and that the mother and the alleged father had sexual relations during which time the child was allegedly conceived.  The alleged father may also provide an affidavit stating these same facts and admitting paternity. 

If the non-biological father does not wish to block the challenge to paternity, then he may provide an affidavit of “no access”  in which he will swear that he had no sexual relations with his wife during the time period when the child could have been conceived.   The legal presumption for the time of conception is between 266 and 299 days from the beginning of the mother’s last menstrual period.

It is worth noting that New York public policy limits third party challenges to paternity of a child born in wedlock.  Thus  the husband has the right to block this petition if he wishes to raise the child as his own.  The court has the right to deny DNA testing if in the court’s opinion this would not be in the best interest of the child, especially if the child is no longer an infant and has been part of the family unit for some time. 

The legal principle of equitable estoppel may also prevent a husband or wife from challenging paternity several years after the birth.  Thus is particularly true where the non-biological father has established himself in the role of the father, where both husband and wife have held out the non-biological father as the father of the child, and where the child has relied upon these representations of paternity 

Conclusion

Because of the importance of establishing and clarifying filiation, it is important that parents take the necessary steps to ensure that their child is properly filiated so that his/her inheritance rights are secure.

If you would like to discuss your own personal situation with me, or how a revocable living trust for your digital assets can be tailored to your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

The Basquiat Estate: Trumping The Dead Man’s Statute with The Federal Rules of Evidence?

Jean-Michel Basquiat was one of the most gifted artists of the late 20th century, raising graffiti art from its street roots to the pinnacle of fine art and in the process redefining Neo-Expressionism.  His untimely death from a drug overdose in 1988 stunned the art world.  He was 27 years old.  According to Phoebe Hoban in her book Basquiat:  A Quick Killing in Art, the auction house Christie’s determined that the artist had left behind a prodigious collection of  917 drawings, 25 sketchbooks, 85 prints, and 171 paintings.

Basquiat died without a Will (intestate).  At the time of his death, his parents Gerard and Matilde were estranged, but not divorced.  New York’s EPTL § 4-1.1 (a) (4) states that, where a person dies without a Will and is survived by one or both parents, the whole of the estate goes to the surviving parent or parents.  Gerard Basquiat began the long process of probating the estate, a process slowed by a number of lawsuits against the estate.  Matilde Basquiat died in November of 2008, leaving Gerard as the sole administrator of their son’s valuable collection.

In 1993, an art dealer named Michelle Rosenfeld sued the Basquiat Estate for allegedly failing to deliver three paintings that had been purchased from Jean-Michel pursuant to a partly written and partly oral purchase agreement.   At trial, defense counsel for the Basquiat Estate affirmatively waived his objection based on New York’s Dead Man’s Statute (CPLR  § 4519) to Michelle Rosenfeld’s testimony concerning her conversations with the deceased Basquiat.  This affirmative waiver came after the judge in the case said that he would instruct the jury about the Dead Man’s Statute if Basquiat chose to invoke it.    Rosenfeld proceeded to testify about her conversations with Basquiat. 

Rosenfeld testified that she had met Jean-Michel Basquiat at his apartment on 25 October 1982.  She said that during their meeting, Jean-Michel had agreed to sell her three paintings, identified in her complaint, for $4,000 each.  Jean-Michel then asked her for a 10% deposit.  Rosenfeld returned ten days later with $1,000 in cash whereupon she asked for a receipt.  According to Rosenfeld, Jean-Michel then set upon writing a “contract” in crayon that identified the three paintings and recited the agreed-upon price and the deposit.  The dated document was signed by both Basquiat and Rosenfeld (Rosenfeld v. Basquiat, 78 F.3d 84).

That trial ended in a hung jury. Rosenfeld filed for a new trial in the United States District Court for the Southern District of New York.  In a pretrial conference, the parties were asked to brief the court regarding the threshold question as to the applicability of the Dead Man’s Statute (Rosenfeld v. Basquiat, 866 F. Supp. 790; 1994 U.S. Dist. LEXIS 15662).  The court had to decide three preliminary questions:

“1. Does Basquiat’s waiver of his objection based on CPLR 4519 at the first trial, allow Rosenfeld to testify about her transactions with the decedent at the retrial?

2. Is Rosenfeld entitled to a jury instruction concerning the effect of CPLR 4519, if I exclude her live testimony?

3. Is Rosenfeld’s prior trial testimony admissible in evidence at the retrial?” Id. at 792.

The district court judge reasoned that the Federal Rules of Evidence (FRE) and specifically FRE 804(b)(1) governed hearsay, and not the Dead Man’s Statute. FRE 804(b)(1) “provides that a declarant is ‘unavailable’ if ‘exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement.'”  Id. at 793.  As a result, the judge ruled that if Basquiat asserted the Dead Man’s Statute, which the judge termed a “privilege” (FRE 804(a)(1)),  then Rosenfeld would become “unavailable” within the meaning of FRE 804(b)(1).  The judge would then admit Rosenfeld’s prior testimony, and so instruct the jury.

At the second trial, the trial court allowed the reading of Rosenfeld’s prior testimony from the first trial to the jury.  The jury found in Rosenfeld’s favor:  “The jury in the second trial reached a verdict in favor of Rosenfeld, returning answers to special interrogatories as follows: Basquiat entered into a written agreement in October 1982 to sell the three paintings to Rosenfeld for $12,000; although there was no initial agreement establishing a delivery date, they made a separate oral agreement approximately ten days later setting the delivery date; a reasonable delivery date was October 1987; Rosenfeld first learned of the breach in August 1988, when Jean-Michel Basquiat died; and the market price of the three works at that time was $395,000.” (Rosenfeld v. Basquiat, 78 F.3d 84).  The jury awarded Rosenfeld $384,000, the market value of the paintings minus the remainder of the purchase price, plus $217,301.92 in interest.  The Basquiat Estate appealed to the Second Circuit Court of Appeals.

The Second Circuit Court of Appeals distinguished the hearsay exceptions under the Federal Rules of Evidence from the Dead Man’s Statute.  The court said that the hearsay rule (Rule 802) is a rule of exclusion that makes certain out-of-court statements inadmissible as evidence.  FRE 804 lists several exceptions to the exclusionary rule for when a witness is “unavailable” to testify.  FRE 804 (a) defines “unavailability,” one instance of which is that the declarant “is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement.” The District Court had ruled that New York’s Dead Man’s Statute was such a privilege, thus making Rosenfeld “unavailable” and her prior testimony admissible if the Basquiat Estate asserted the Dead Man’s Statute.

But the Second Circuit declined to follow the District Court in its definition of the Dead Man’s Statute as a “privilege” under the FRE.  Instead the Second Circuit defined the Dead Man’s Statute as a statute regarding witness competency.  But the court went on the say that even if Rosenfeld’s prior testimony could have been brought in under an exception to the hearsay rule of the FRE, that testimony would still have been barred by the Dead Man’s Statute.  The Federal Rules of Evidence are not independent of state statutes  While FRE 804(b)(1) does not bar the admission of prior testimony of a witness who is now “unavailable,” it does not resolve the threshold issue of whether that testimony is admissible in the first place.  New York’s Dead Man’s Statute made Rosenfeld legally incompetent as a witness.  Therefore, the FRE was irrelevant in this case.  Absent a compelling federal interest, federal courts may not ignore state statutes in their rulings unless the statute is unconstitutional.  The judgment of the district court was reversed a new trial was ordered.

If you would like to discuss your own personal situation with me, review your current legal life plan, or put together a legal life plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

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New York’s Dead Man’s Statute and Oral Promises

Oral promises concerning property made by one family member to another can have devastating consequences after the promisor’s death if these promises are not memorialized in writing.  That is because New York’s Dead Man’s Statute (C.P.L.R. 4519) prohibits the admission of such oral promises by an interested party (in this case, the promisee) in the case of a Wills contest or other litigation.  The family strife that results due to the absence of a writing concerning the future ownership of the property in question can be easily avoided by consulting an attorney. 

Consider the case of Elizabeth Connelly Payne and her brother F. Henry Connelly (Payne v Connelly (1969, 3d Dept) 32 App Div 2d 693, 299 N.Y.S.2d 1013).  At issue in this case was whether Elizabeth could prove that she had been induced to relinquish a present benefit in return for her brother Henry’s promise of future gain.  Elizabeth and Henry’s aunt owned quite a bit of stock in the National Dairy Products Corporation.  Elizabeth Payne alleged that she was persuaded by her brother to dissuade their aunt from changing her will and leaving all of her stock holdings to Elizabeth (the original will left all of the stock to Henry), in exchange for Henry’s promise to give Elizabeth one half of the stock after their aunt’s death.

In due course, their aunt passed away leaving Henry as the sole beneficiary of the stock in question.  And then something unexpected happened:  Henry died as well, but without a Will (intestate).  All of his assets were distributed under New York’s intestacy law to his spouse, Phyllis (the respondent in this case) and their children.   Henry also left behind significant assets in the Valley Coal and Supply Company to his heirs.  The only people present during the conservations concerning the aunt’s will had been Elizabeth and Henry.  The Dead Man’s Statute now prohibited Elizabeth from bringing in those conversations as evidence at trial. 

But what about her sister Florence and her brother-in-law’s assertions concerning statements that Henry made during a Labor Day family gathering in 1962 during which he purportedly said that Elizabeth was to receive half of the National Dairy Product Corporation stock?  The court found that, while it was clear that the parties were discussing the aunt’s Will, Henry’s statement still did not go to the issue of whether the aunt had been induced to not make changes in her Will in favor of Elizabeth in return for Henry’s promise to give Elizabeth half after their aunt’s death.  As a result, Elizabeth’s claim was denied by the court.

When it comes to our family, we want to believe that family members have our best interests at heart.  That is the case more often than not.  However, as in the case of Henry, unexpected events such as a sudden death and legal or mental incapacity can rob the best of intentions of their desired impact.  And once the unexpected happens, New York’s Dead Man’s statute prohibits the testimony of these oral promises with the deceased.

The best course of action when it comes to oral promises between family members or close associates is to memorialize them in writing.  You should consult an attorney to make sure that the proper legal documents are drafted and then properly executed under New York law.  Both parties will then have the assurance that the intentions expressed in oral promises will be carried out no matter what happens to either party.

If you would like to discuss your own personal situation with me, review your current legal life plan, or put together a legal life plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me Up” on the left-hand side of the page or the “Subscribe” button at the top of the page so that you can receive a notification when the next blog post has been published.   Thank you.

 

Mental Capacity and Marriage in New York, Part 1: Background to the Issue

In New York, a person is presumed to have the mental capacity to marry.  But the standard that defines the mental capacity to marry is very low.  The mental capacity required to marry is lower than testamentary capacity, or the capacity to make a Will.  In turn, testamentary capacity is lower than the mental capacity required to execute a contract.  To put this into perspective, New York requires greater mental capacity to sign an apartment lease than it does to marry someone.

The U.S. Constitution also protects an individual’s right to marry.  The U.S. Supreme Court has affirmed that the right to marry is a fundamental right.  In Loving v. Virginia, 388 U.S. 1, 12 (1967), the Court held that the Due Process Clause includes a constitutional right to marry because “freedom to marry has long been recognized as one of the vital personal rights essential to the pursuit of happiness by free men.”  In addition, the Full Faith and  Credit Clause in Article IV requires states to credit the “public Acts, Records, and judicial Proceedings” of sister states, including marriage.

A marriage in New York results in two separate outcomes:  the marriage itself, and the property consequences that flow from the marriage.   As we will see in this series, there is a loophole in the law that has permitted some unscrupulous individuals to take advantage of elderly individuals with diminished capacity.  That is because, while the marriage itself may be annulled or broken, the property consequences of marriage are not necessary severed as a consequence.  As we will see in this series, that can result in unintended estate consequences for heirs and distributees, particularly in the area of  so-called “deathbed” marriages.

Arguably,  the property rights that flow from marriage are much greater than they are for signing an apartment lease even though the mental capacity required to enter into a marriage is significantly lower.  Federal property rights that flow from marriage include such things as Social Security survivor benefits for a spouse, and spousal survivorship rights for qualified retirement plans under the Employee Retirement Income Security Act (ERISA) that can only be waived in writing.

Among the New York State property rights for spouses is the right to title property in a tenancy by the entirety. Neither spouse can sell or diminish the 100% share that each owns without the consent of the other.  Should a creditor obtain a lien on one spouse’s interest in the property, the lien will only survive if the debtor spouse is the surviving spouse.  Otherwise, the lien is extinguished with the death of the debtor spouse.  Moreover, the property cannot be reached in a bankruptcy proceeding.   New York also has an elective share statute, meaning that a surviving spouse can elect to one-third of the decedent spouse’s estate against the decedent’s Will if there is surviving issue, or one-half of the property if there is no issue.  Even if there is no Will, New York’s intestacy statutes provide that a surviving spouse will receive at least one-third of the decedent’s property.

In New York, a marriage can be void from the start (ab initio) due to such reasons as bigamy or an incestuous marriage.  In such a case, the marriage is a legal nullity:  it never existed from the start.  The spouse, the State, or an interested third party can attack the marriage directly or collaterally in court on the ground that it is void.  The attack can even take place after the death of one or both spouses.  Note that diminished mental capacity is not a ground for voiding a marriage in New York.

A voidable marriage is valid for any civil purpose unless it it attacked by one of the spouses in an action for annulment.  The grounds for deeming a marriage as voidable include fraud, duress, temporary or permanent mental incompetence, undue influence, and sham.  As concerns mental incompetence in the case of a voidable marriage, Domestic Relations Law § 140 [c] provides that “[a]n action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to avoid the marriage.” 

Even if a third party should succeed in proving that there was sufficient evidence of diminished capacity before the marriage took place (for instance, with documented medical evidence showing dementia), the surviving spouse of an annulled marriage may still take against the Will under the right of election or under intestacy.   The property stakes are high when one enters into a marriage.  They are even higher for the children of aging parents with diminished capacity who find themselves (and their property) prey to unscrupulous persons who will marry them (sometimes in secret) in order to obtain the federal and state property benefits that flow from marriage. 

In this series, we will look at how New York courts have dealt with the issue of mental capacity and marriage, especially in cases where the results have been egregious. I invite you to join my list of subscribers to this blog by clicking on “Sign me up!” under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.   Thank you.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

When Is the Best Time To Make or Review Your Will?

If you have been asking yourself these questions, the answer is likely “now.”  There are several reasons why you may not want to wait.  The most obvious one is that tomorrow is promised to no one.  The second reason is that it is a good practice to review the terms of your Will on a yearly basis to assess the consequences of changes in family composition, financial updates, and changes in the tax law that may affect your estate.  The third reason is one that is often overlooked, that you may not always have the testamentary capacity to make a Will.   I have covered this topic in a previous post.

Making or changing a Will is a serious endeavor, and it should never be undertaken for negative reasons, such as to spite a relative or friend.  In New York, the making of a subsequent Will executed with all required formalities constitutes a revocation of any previously executed valid Wills and their codicils.  In New York,  a partial revocation by physical act, such as words added to a Will after it has been signed and witnessed, is not recognized and will have no effect on the Will.

A Will can also be revoked if it is destroyed by a physical act.  If the subsequent Will is later destroyed by a physical act, such as cutting it up or burning it or crossing out the testator’s signature, the prior Will that it replaced will not be revived in New York.  The earlier Will is legally invalid, and the decedent will have died intestate.

The case of Mabel Waingrow of Blooming Grove, New York provides a cautionary tale.  The owner of Town & Country Coffee Shop on Route 94, Waingrow died in 2003 at the age of 99 leaving an estate valued at $990,000.  She had outlined her husband, her son, and her siblings.  Her closest relatives were her five great-nieces and -nephews whom she never knew because they lived abroad.  A diligent attorney who prepared Waingrow’s Will in 2000 had discovered the distant relatives.

Waingrow had closed her coffee shop when she had turned 90, and without the constant social interaction she soon became a lonely recluse, beset by thoughts that people were trying to steal from her.  To her rescue came Nick Stagliano, a former criminal investigator for the Orange County District Attorney’s Office who befriended her and took care of her.    According to a story in the local Times Herald-Record, Stagliano was the only one present for her 99th birthday.

In 2001 Waingrow, who had a habit of writing a new Will to benefit whoever was friendliest to her and to spite those who had “unfriended” her, executed a new Will naming Stagliano as the sole beneficiary of her entire estate.  The next day, the Orange County Court named him Waingrow’s legal guardian because she could no longer take care of her affairs.  Her great-nieces and -nephews were not informed of this appointment.

Five years after her death, one of her grand-nieces filed suit contesting the Will claiming undue influence . The case was settled shortly after the trial began.  Waingrow’s five great-nieces and nephews received at least $500,000 of the estate, with the remainder going to Stagliano.  Stagliano also agreed to give up his role as executor of the estate.

In her multiple executions of Wills, Waingrow chanced revoking a valid Will because her failing mental health made her capacity to execute a valid Will questionable.  Had her 2001 Will been declared invalid  at trial due to undue influence, then she would have been deemed to have died intestate.

When a person dies without a Will, New York uses as its default an intestate distribution system called per capita (“each head”) at each generation. In this system, each person is weighed equally. By virtue of their presence on the family tree, no one can be disinherited.

New York also has a “laughing heir” statute (EPTL §4-1.1(6)). A “laughing heir” is someone entitled to inherit by law who is so remotely connected to the deceased that he or she would not feel any sorrow at hearing of the death. To prevent this occurrence, New York cuts off heirs at the grandchildren of the deceased: “For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.” No one more remote, such as a great-grandchild, may inherit. After that, the property of the deceased escheats to the State.

Since Waingrow had no grandchildren, and since her siblings had predeceased her, her surviving grand-nieces and -nephews risked having the entire estate escheat to the State if they pressed having Waingrow’s Will declared invalid because of undue influence on the part of Stagliano.  The prior Will executed in 2000 could not be revived under New York law.   Thus the only way that the grand-nieces and -nephews could be certain to receive any money from the estate was to settle with Stagliano.

The case of  Mabel Waingrow points out once again the necessity of working with an attorney who will  draft your Will and tailor it to your individual needs. Though it may seem contrary to nature, children at times do predecease their parents, as Mabel’s son did, and this reality must somehow be accounted for in your Will.  Your attorney will work through some scenarios with you to make sure that all of your wishes are met and executable. No boilerplate form can do this kind of reasoned and careful drafting befitting your individual needs.  

It is also a good practice to make a yearly appointment with your attorney to review your Will.  Things in your life will surely change from year to year, and it is a good practice to get in the habit of talking through those changes with your attorney. Your attorney will be able to advise you as to any impact on your estate plan.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!” under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.

Bobby Fischer’s Endgame: The Perils of Dying Without a Will

When Bobby Fischer won the World Chess Championship from Boris Spassky in 1972 in Reykjavík, Iceland, no one could have predicted that this location would become the site of yet another contest involving Fischer, this time a posthumous battle over his $2 million estate. Once a resident of Brooklyn, Fischer’s U.S. passport had been revoked in 2004 following some incendiary anti-American and anti-Semitic remarks (though Fischer himself was Jewish). The following year, Iceland granted him citizenship. He died in Iceland in 2008 without a Will (intestate).

According to the New York Times, there are four claimants to Fischer’s estate: Jinky Young, Fischer’s presumed daughter filing through her mother Marilyn; Miyoko Watai, who claims that she was married to Fischer, and Alexander and Nicholas Targ, Fischer’s nephews through his sister Joan.

Last month, Iceland’s Supreme Court ordered the exhumation of Bobby Fischer’s body in order to determine the legitimacy of Jinky Young’s paternity claims. The body was exhumed today and DNA samples were taken. If the DNA samples establish Fischer’s paternity, then Jinky Young will be declared his legal heir under Icelandic law.

All of the claimants have retained legal counsel to represent their interests in Iceland and, depending upon the results, these legal costs may never be recovered. All of this could have been avoided had Fischer drafted a valid Will expressing his final wishes. He could have made provisions for all of his loved ones, avoiding for them this long, protracted, and costly legal battle.

Your estate may not be the size of Bobby Fischer’s, but you likely have loved ones to whom you would like to leave bequests. Don’t put off the decision to make a valid Will. Consult with an attorney who will assist you in drafting a document that meets your unique needs.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

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Adoption and Inheritance in New York, Part 1. A Brief History of the Issue

As a young girl, I was fascinated by the stories of Anne of Green Gables (1908), Pollyana (1913), and the comic strip Little Orphan Annie (1924).  These stories of adoption spoke to me of acceptance and of intergenerational care.  What I did not realize at the time was that these stories also reflected a new trend in the history of adoption and of family construction, a shift from an emphasis on strict bloodlines for the purpose of inheritance to the acceptance of adoption to create or expand a family.  

As in other jurisdictions, adoption in New York is, strictly speaking, a creature of the law.  The law in New York concerning inheritance rights of adopted children would also change as a result of changes in society, creating a uniquely legal concept of the family through the expansion of inheritance rights to include the adopted child.  Literature and the law would walk hand in hand to bring about change.

The story of Anne Shirley in Anne of Green Gables represents a transitional phase in the history of adoption.  Marilla and Matthew Cuthbert, sister and brother, had decided to adopt a boy to help them out on the farm because they were getting too old to take care of the chores themselves.  Orphanages in the 19th century regularly adopted out children as a form of cheap farm labor.  Through a series of mishaps, the Cuthberts received precocious Anne instead.  With her flaming red hair and freckles, Anne’s cheery disposition soon warmed the heart of Matthew and even crusty Marilla, exemplifying the more desired kind of adoption based on sentiment rather than work.  This desired kind of adoption would progressively find its way into the spirit and language of the law.

Anne’s flaming red hair is also the dominant characteristic of Little Orphan Annie.  Based upon Indiana poet Charles Whitcomb Riley’s poem Little Orphant Annie (1885) written in the Hoosier dialect,  Riley’s Annie is adopted out to be a household servant. 

Little Orphant Annie’s come to our house to stay,
An’ wash the cups an’ saucers up, an’ brush the crumbs away,
An’ shoo the chickens off the porch, an’ dust the hearth, an’ sweep,
An’ make the fire, an’ bake the bread, an’ earn her board-an’-keep;

But Annie also had an unusual gift:  she could spin goblin stories for the children after the evening meal, morality tales where the children are exhorted to obey their parents.  The poem focused on the beneficial moral effects of the adopted child, in contrast with real orphans who often were associated with ignorance, disorderly conduct, and poverty.

Annie would not have ridden out on an orphan train, a particularly painful part of the history of adoption in New York from 1854-1929.  The orphan train was the brainchild of New York Protestant reformer Charles Loring Brace, author of The Best Method of Disposing of Our Pauper and Vagrant Children (1859).  Alarmed at the growing number of homeless and disorderly children in New York, particularly Irish Catholic immigrant children who had arrived during the Irish Potato Famine, Brace feared that crime would increase in the city as a result.  His Children’s Aid Society placed out only boys to rural regions of America, in what was in large part a contractual arrangement.   

Riley’s Annie became the prototype for Harold Gray’s syndicated cartoon Little Orphan Annie (1924), which appeared at the height of the Progressive Movement in the United States.  The Progressives Movement in New York would make significant inroads in adoption reform in the United States. 

Massachusetts had passed the first adoption law in 1851.  Section 6 dealt with the issue of inheritance.

“A child so adopted, as aforesaid, shall be deemed, for the purposes of inheritance and succession by such child, custody of the person and right of obedience by such parent or parents by adoption, and all other legal consequences and incidents of the natural relation of parents and children, the same to all intents and purposes as if such child had been born in lawful wedlock of such parents or parent by adoption, saving only that such child shall not be deemed capable of taking property expressly limited to the heirs of the body or bodies of such petitioner or petitioners.”

If the adopting couple was childless, then the adopted child could inherit freely from the adoptive parents.  However, if the couple already had natural children, the law prohibited the adopted child from inheriting from the adoptive parents.  Under the law, adopted children were not considered to be the equals of natural children with respect to inheritance rights. 

New York began amending its adoption laws beginning in 1873.  One feature of New York’s early adoption law with respect to inheritance was a provision that allowed adopted-out children to inherit from their natural parents (In re Landers’ Estate, 100 Misc. 635, 166 N.Y.S. 1036 (Sur. Ct., Oneida Co. 1917)).  In 1963, New York amended its adoption statute Domestic Relations Law (DRL) § 117 with respect to inheritance.   For the purpose of inheritance, the amended law ended the adopted-out child’s right to inherit from the biological parents, but at the same time gave the adopted child the right to inherit from the adoptive parents.

The law was amended in 1966, giving the biological parent the right to provide a bequest to an adopted-out child by last will and testament.  For the first time, the law also addressed the issue of a child who was adopted by a step-parent, an acknowledgement that new family relationships were also being forged by remarriage.

In 1986, as a result of a Court of Appeals decision in In re Best, 66 N.Y.2d 151 (1985), the law was amended to state that the adopted-out child was deemed a “stranger” with respect to the biological parents.  The adopted-out child may not inherit from the natural parents through a class gift in a will or a trust, or through intestacy.  However, the adopted-out child can still inherit from the biological parents if the adopted-out child is specifically named in the biological parent’s will or trust.  In the case of a class gift, the adopted-out child must be specifically named as belonging to that class.

However, the new law created particular issues with respect to step-families and with respect to inheritances from grandparents.  The law was quickly changed in 1987 to provide for inheritance rights if  (1) the child’s adoptive parent is (a) married to the child’s birth parent, (b) the child’s birth grandparent or (c) a descendant of such grandparent; and (2) the testator or creator is the child’s grandparent or a descendant of such grandparent (DRL § 117(2)(b)).  This remains the law in New York with respect to inheritance rights of adoptees.

This brief history into the inheritance rights of adopted children in New York is yet another reason as to why you should have an attorney draft your Will instead of relying on boilerplate forms that are not tailored to your unique situation. After all, no person’s estate and family situation is like any other, and your uniqueness should be reflected in the way that your Will is prepared: a Will that is specifically drafted for you. Your Will is, after all, one of the most important documents of your life and you should have the benefit of expert legal assistance in drafting it.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

In the next segment of this series, I will look at some specific and fascinating New York cases involving adopted-out children and inheritance rights.  I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.

What is the Difference between an Heir and a Beneficiary?

In everyday life, you will often hear people speak about their hope for an inheritance from a family member or relative.  However, this commonplace use of the term “inheritance” often masks a misunderstanding of the law and can lead to unintended consequences when misplaced assumptions are not addressed.  Today we are going to examine exactly what the term “inheritance” means from a legal standpoint, and how having a Will takes uncertainty out of the equation.

What defines an “heir”?  Strictly speaking, one is not an “heir” of a living person.  That is because the exact identity of an “heir” is determined at the time of the decedent’s death.  The determination is made by the laws of the jurisdiction, and not by the decedent.  An “heir,” then, is a legal creation and its terms are defined by a State.  One becomes an heir by virtue of satisfying the definition in a statute.  In New York, that statute is EPTL § 4-1.1. That is because New York  has an interest in the smooth transfer of property from one generation to the next.  As such, an “heir” is the statutory recipient of property from a decedent who dies without a Will (intestate).  The State is also the final “heir” in most statutory schemes.  If there are no statutory heir, then the property will go to the State (escheat).  In New York, a person who inherits property under intestate succession is called a distributee.

New York also has a “laughing heir” statute (EPTL §4-1.1(6)).  A “laughing heir” is someone entitled to inherit by law who is so remotely connected to the deceased that he or she would not feel any sorrow at hearing of the death.  To prevent this occurrence, New York cuts off heirs at the grandchildren of the deceased:  “For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.”  No one more remote, such as a great-grandchild, may inherit.  After that, the property of the deceased escheats to the State.

When a person dies without a Will, New York uses as its default an intestate distribution system called per capita (“each head”) at each generation.  In this system, each person is weighed equally.  By virtue of their presence on the family tree, no one can be disinherited.  The first thing we have to do is determine the number of surviving distributees. To illustrate: Beth is a single person who dies without a Will.  She had two sons named Luke and Dick, and a daughter named Nancy.  Luke had two children, Bill and Jane, and Nancy had one child named Jim, and Dick had two children named Sandy and Sam.

At the time of Beth’s death, Luke had already predeceased her.  Had Luke been alive, he, Nancy and Dick would have each received 1/3 of the estate.  Because Luke has already died, Nancy and Dick each receive their 1/3 share, and Luke’s children divided what would have been their father’s share equally between them.  So Nancy receives 1/3, Dick receives 1/3 , and Bill and Jane each receive 1/6.   

Depending upon your family situation, the New York default system of distribution may not suit your needs.  In that case, you may want to draft a Will stipulating that you want your estate distributed per stirpes (“by each branch”) to give you more control over the outcome.  In New York, a person who receives under a Will is called a beneficiary.  Let’s say that you want your great-grandchild to receive something from your estate.  Drafting a Will eliminates the “laughing heir” statute and allows you to leave something to your great-grandchildren.  A Will also allows you to distribute your estate to a class of beneficiaries, such as “to all my children” or “to all of my grandchildren” to cover any issue born or adopted after the execution the Will (pretermitted child).  The class closes at the time of the death of the testator.

Finally, instead of having your estate possibly escheat to the State, you can name a person unrelated to you or a charity as a beneficiary of your residuary estate.  Your property can then be used in a way that is consistent with your life and beliefs.  You should seek the advice on an attorney in drafting a Will so that your wishes are reflected in the resulting document.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.