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.

Defining Parentage in the Age of Surrogacy, Part 2: Who is a “mother”?

In the early 1980s, the Infertility Center of New York placed some ads in area newspapers seeking women who would be willing to carry a child for an infertile couple.  One young woman, Mary Beth Whitehead of Bricktown, New Jersey, saw the ad in the Asbury Park Press and answered it.  The Infertility Center matched Whitehead with William and Elizabeth Stern of Tenafly, New Jersey.  On February 6, 1985 Whitehead and the Sterns executed a surrogacy contract wherein Whitehead, in exchange for $10,000,  agreed to be artificially inseminated with William Stern’s sperm, to carry the resulting child to term, and then to give up all legal rights to the child at birth.  At the time, Whitehead was married to Richard Whitehead. 

Under this surrogacy arrangement, Whitehead became the genetic surrogate mother to Stern’s child through artificial insemination with Stern’s sperm.  Had Whitehead not contributed an ovum, as in the case of in vitro fertilization using an anonymous egg donor, she would have been a gestational surrogate mother.  In this case, both genetic parents were known.  Elizabeth Stern did not contribute an ovum because she suffered from multiple sclerosis, the reason for which the Sterns had sought a surrogate in the first place. 

At common law, the mother is defined as she who bears the child.   Because maternity rights are presumed, laws protecting maternity rights arising out of surrogacy are often absent.  Parentage of a child is defined by the birth of the child to a mother and the mother’s marriage to the child’s father.  Where the mother is not married to the father, she retains full custody rights to the child.  A surrogacy contract involving a genetic mother seeks to alter the common law understanding of “mother” by termination of parental rights between the birth mother and her child without the intervention of a court.  In New York,  grounds for the termination of parental rights are governed by statute and found in  Soc. Serv. Law, §§ 384-b, 358-a(3)(b).   The parent must be adjudicated as “unfit” before parental rights can be terminated. 

On March 27, 1986 Whitehead gave birth to a daughter whom she named Sara Elizabeth Whitehead.  She and her husband Richard gave every indication that the child was theirs, and the child’s birth certificate indicated that Richard Whitehead was the father.  At common law, the mother’s husband is the presumptive father.  As per the terms of her surrogacy contract, she gave up custody of the child to the Sterns at their home on March 30th.  But less than a day later, Whitehead had second thoughts.  She became emotionally distraught and asked the Sterns to return the child to her for a week, whereupon she would return the child.   The Sterns complied, concerned over Whitehead’s extreme distress.  Instead of keeping her word, Whitehead and her husband fled with the baby to her parents’ home in Florida.  The details of the Sterns’ legal attempts to reclaim custody of the baby are found in In re Baby M, 537 A.2d 1227 (1998)

The New Jersey Supreme Court found that surrogacy contracts offend public policy and are contrary to New Jersey statutes.  The court found the surrogacy contract invalid and unenforceable for two reasons.  First, termination of parental rights may not be done by contract.  The legal standard for determining whether parental rights can be terminated is the best interest of the child and not a contractual clause.  Second, an irrevocable agreement on the part of a birth mother to give up a child for adoption prior to the child’s birth amounts to coercion to contract, making the agreement unenforceable.  The court pointed to additional conflicts with adoption laws:  prohibitions on the exchange of money for the right to adopt, with the exception of fees paid to non-profit approved adoption agencies; and laws that make the birth mother’s consent to put her child up for adoption a revocable act. 

Furthermore,  New Jersey’s Parentage Act codifies the long-standing common law understanding of parentage.  The New Jersey Parentage Act provides that, where a married woman is artificially inseminated by a sperm donor and with her husband’s consent, the law creates a parent-child relationship between the husband and the child, and not between the sperm donor and the child (N.J.S.A 9:17-44).   The New Jersey Supreme Court found that Whitehead’s parental rights had not been terminated as a result of the surrogacy contract.  The court granted custody to William Stern but visitation rights to Whitehead. 

As a result of the Baby M case, New York passed a law prohibiting surrogacy agreements as contrary to public policy (D.L.R. § 122).  Surrogacy contracts fracture the unified concept of motherhood by separating out the functions of the genetic mother,  the gestational mother, and the custodial mother.   There are fines and criminal penalties in New York for commercial surrogacy.  Non-commercial surrogacy contracts are de facto unenforceable.  But this law did little to settle the issue of who is a “mother.”  The issue is particularly thorny in cases where a resulting birth is produced by assisted reproductive technology (ART).   

Unlike surrogacy, artificial insemination is not against public policy in New York.  Artificial insemination maintains the unified concept of motherhood.  Women who donate eggs anonymously are generally required by fertility doctors to sign a surrender, thereby waiving all parental rights and responsibilities.  New York goes further and denies any egg donor (the genetic mother) standing to initiate an action for custody.  Anonymous sperm donors generally sign contracts with a sperm bank and not with a mother, and so the donor’s anonymity and waiver of parental rights are generally upheld.  However, in New York a contract waiving parental rights and responsibilities between a known sperm donor and a mother is generally unenforceable.  The court will use the “best interest of the child” standard to determine the parental rights and obligations of the sperm donor. 

Because New York legitimacy laws only apply to married couples, courts have approved instances where an anonymous sperm donor can successfully waive his parental rights if the the woman is unmarried.  The mother then gains sole custody of her child and has no standing to claim child support.   

Where a mother is married, there is the legal presumption in New York that a child conceived with the husband’s consent  through artificial insemination is the legitimate, natural child of the couple.  The sperm donor has no rights to the child.  The mother who has been artificially inseminated is considered to be both the genetic and the gestational mother.

There have been exceptions to the rule that in New York a mother is both the genetic mother and the gestational mother.  In Perry-Rogers v. Fasano, 715 N.Y.S.2d 19 (App. Div. 2000),  a New York court awarded custody of one Black fraternal twin whose white mother was mistakenly implanted with an embryo created with the sperm and ovum of another couple, the Rogers.  In a truly Solomon-like fashion, the court decided that Donna Fasano was the gestational mother of both twins, but the genetic mother of only one twin.  The court acknowledged the legal challenge brought about by ARTs to the concept of “mother”:  “It was only with the recent advent of in vitro fertilization technology that it became possible to divide between two women the functions that traditionally defined a mother, at least prenatally. With this technology, a troublesome legal dilemma has arisen: When one woman’s fertilized eggs are implanted in another, which woman is the child’s “natural” mother? (Perry-Rogers v. Fasano, at 24)”

The court presciently predicted that further challenges to the legal concept of “mother” as being both genetic and gestational in New York would be forthcoming.  ” (W)e [do not] necessarily accept the broad premise that in any situation where a parent, possessed of that status by virtue of having borne and given birth to the child, acknowledges another couple’s entitlement to the status of parent by virtue of their having provided the genetic materials that created the child, the birth parent automatically gives up all parental rights (Id., at 25).

We will look at this precise question in the next part of this series:  who is the “mother” when a woman donates her ova (genetic mother) for in vitro fertilization by an anonymous sperm donor with the intent of having her spouse, another woman, carry the child (gestational mother)? 

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