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 


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.

Single Parents and Wills: The Appointment of a Guardian for Your Child

One of the most important decisions that a single parent can make regarding the care of a minor child is the appointment of a testamentary guardian in the event of the parent’s death. The appointment of a testamentary guardian is done in a Will. In essence, a guardianship clause in a Will determines who will get custody of the child upon the parent’s passing.

If you are divorced, then it is very important that you have a Will. While the remaining parent will likely become the guardian of your child, unless that parent has been declared unfit, the Will of the last parent to die will determine the guardianship of any minor child. To illustrate: if a divorced mother with a Will predeceases her divorced husband who later dies without a Will, the mother’s designation of a testamentary guardian will prevail.

How should you choose a testamentary guardian for your minor child? There are several factors to be considered, such as:

  • the health of the guardian;
  • the person’s values;
  • whether the proposed guardian has children already and, if so, whether their ideas on parenting are in agreement with yours;
  • if religious upbringing is important to you, whether the proposed guardian shares your beliefs;
  • whether the proposed guardian shares your educational values;
  • whether the person is willing to comply with all of the court procedures on a yearly basis;

You should consider appointing an alternate guardian who will also meet the same criteria as the designated guardian in case the designated guardian cannot take on the duties in the event of your death. Note that, depending upon the age of the minor child at the time of the parent’s death, any designated guardian or alternate may have to serve for quite a long time. Therefore, a designated guardian should reflect carefully upon the duties involved before making the commitment.

Regardless of the presence of an ex-spouse, a single parent will want to assure the unencumbered transfer and management of non-probate assets for any minor child through a Will. If your minor child is named as a beneficiary of your life insurance policy or retirement plan, then that property will pass outside of probate directly to your child. In your Will, you may want to consider either appointing a separate guardian for your child’s property or establishing a testamentary trust.

If there are multiple children, provision may be made in the testamentary trust to pool the assets in order to afford the trustee discretion in caring for differing needs of the children. This is especially important if there is a special needs child. Without a Will, each child will receive equal shares without any regard to the different care needs of each child.

In the case of a testamentary trust, the parent (grantor) will want to designate a trustee to manage the proceeds of the trust until the child reaches majority. The designated trustee must agree to meet annually with the probate court and show that the trust assets are being dispersed responsibly.

A single person should consult with an attorney to draft a Will that will provide for the proper care of minor children in the event of the parent’s death. The attorney will assess each individual situation and provide guidance as to how best to protect the minor children and their assets.

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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