Can an Illegitimate Child Claim Inheritance?

An illegitimate child can claim inheritance from the biological mother. An illegitimate child can claim inheritance from the biological father, for as long as paternity has been established under EPTL § 4-1.2.

Inheriting under a will

An illegitimate child can inherit from the biological mother or father if the illegitimate child has been named as a beneficiary in the will. Children can be omitted in a will, effectively disinheriting them, and their only recourse is to contest the will as not genuine, authentic, or properly executed, or a product of undue influence.

If an illegitimate child has been omitted from the will, the illegitimate child, as a natural child of the deceased parent, has the right to contest the will. If the illegitimate child has not been acknowledged as a natural child by the deceased father, the illegitimate child must establish first that the deceased father is his biological parent before his legal standing to contest the will is recognized.

Inheriting under the laws of intestacy

In New York, under EPTL 4-1.1, if the deceased parent dies intestate or some of his property is not distributed via will (e.g. there is no residuary clause in the will), the deceased parent’s children or their descendants will receive a share from their deceased parent’s estate.

As a general rule, when the children are borne of married parents, they are presumed to be the legitimate children of their married parents. There is no need to establish filiation. The marriage certificate of the parents and the birth certificate of the child are sufficient evidence to prove filiation.

In the case of an illegitimate child, however, the illegitimate child is only presumed to be the child of the biological mother. If the deceased parent is the father, in order for the illegitimate child to inherit from the biological father, the illegitimate child must be able to establish his paternity.

Under EPTL § 4-1.2, an illegitimate (or non-marital) child is presumed to be the natural child of the biological father if:

• During the lifetime of the father:
  • A court has issued an order of filiation declaring the father as the biological parent; or
  • The biological father executed an acknowledgement of parentage which has been field with the registrar where the birth certificate has been filed
• During the lifetime of the father or after death:
  • Father signed instrument acknowledging parentage under the following conditions:
    • Acknowledgement in the form of a deed before a notary public with at least one witness;
    • Acknowledgement is filed within 60 days from making with the putative father registry; and
    • Department of Social Services sends written notice to mother or child’s legal guardian, within 7 days from filing, notifying them of acknowledgement instrument.
  • During the lifetime of the father or after death:
    • Parentage has been established by clear and convincing evidence, not limited to:
      • Evidence from genetic marker test (e., DNA test); or
      • Evidence that father openly and notoriously acknowledged the child as his or her own.

Legal disputes regarding inheritances of illegitimate children

When an illegitimate child is involved, it is normal for heirs to deny the claim of parentage of an illegitimate child so that the other children’s share of the estate would become bigger.

For example, if the person died without a spouse and no known children, the parents would inherit. However, if an illegitimate child suddenly appears, the parents would be set aside, and the illegitimate child would inherit the entire estate. Clearly, the parents of the deceased will not be happy with the sudden appearance of an illegitimate child. However, for an illegitimate child to inherit from the deceased biological father, he would have to establish first that the deceased was indeed his biological father under rules provided above.

The best evidence to prove paternity is a DNA test. If there is a DNA test that was conducted prior to the father’s death, establishing paternity is easier. However, if there is no written acknowledgement or open and notorious acknowledgement of the child as his own, the illegitimate child needs to conduct a post-humous DNA test. If the deceased father had an autopsy, New York’s Office of the Chief Medical Examiner (OCME) would have the deceased father’s blood samples. This can be used to conduct the DNA test.

Pending court order granting your application to conduct a post-humous DNA test, it is important to inform the OCME to preserve the blood samples. Usually, blood samples are retained for a period of two years, after which they are disposed.

If you are an illegitimate child who needs to establish parentage in order to claim an inheritance, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].