What are the rights of illegitimate children to inherit from their Father in New York?

Full question:

What are the rights of illegitimate children to inherit from their Father in New York?

• Category: Wills and Estates
• Subcategory: illegitimate Children
• Date: 04/07/2025
• State: New York

Answer:

If an illegitimate child meets the requirements of 4-1.2 of the New York Estates, Powers and Trust Code, the child can inherit from their Father if the Father dies without a Will.

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.