Do Grandchildren Inherit a Deceased Parent's Share in New York? Intestacy and Anti-Lapse Rules

Written by Albert Goodwin, Esq., estate attorney, Law Offices of Albert Goodwin, New York. This page is reviewed against the current text of the Estates, Powers and Trusts Law (EPTL) and the Surrogate's Court Procedure Act (SCPA). It is general information, not legal advice for a specific estate.

In New York, grandchildren generally do inherit the share their parent would have received if that parent died before the grandparent. Under intestacy, the grandchildren take the share "by representation" under EPTL 4-1.1 and EPTL 1-2.16. Under a will, the anti-lapse statute, EPTL 3-3.3, passes the parent's gift down to the grandchildren unless the will says otherwise. The short answer is yes in most families, but the size of each grandchild's share depends on a New York rule that differs from the per stirpes system used in many other states, and several fact patterns change the result entirely.

The family tree used in the examples on this page

Every example below uses the same family. A is the grandparent who has died. A had four children: B, C, D and E. B has one child, F. C has one child, G. D has no children. E has two children, H and I. F, G, H and I are A's grandchildren.

When the grandparent died without a will: EPTL 4-1.1 and "by representation"

If A died without a will, the estate passes under New York's intestacy statute, EPTL 4-1.1. The statute gives the estate to A's "issue," a term that means all of A's descendants in every generation: children, grandchildren, great-grandchildren and so on. If A left a surviving spouse, the spouse takes the first $50,000 plus one-half of the balance, and the issue share the rest (EPTL 4-1.1(a)(1)). If there is no spouse, the issue take everything (EPTL 4-1.1(a)(3)).

In each case the statute says the issue take "by representation." That phrase is defined in EPTL 1-2.16, and the definition is where most online explanations go wrong. New York does not use classic per stirpes for intestate estates of people who died on or after September 1, 1992. It uses a system usually called per capita at each generation. The method works like this:

1. Find the generation nearest to the decedent that contains at least one living member. If any child is alive, that is the children's generation. If every child has died, it is the grandchildren's generation.
2. Divide the estate into equal shares, one for each living member of that generation and one for each deceased member of that generation who left surviving issue. A deceased member who left no issue is ignored.
3. Each living member of that generation takes one share.
4. Combine the shares that belonged to the deceased members into a single pool. Divide that pool, using the same method, among the surviving issue of those deceased members, as though the members already paid had died without issue.

Step four is the New York twist. The shares of deceased children are pooled and split equally among the grandchildren who take, rather than being handed down line by line. Under strict per stirpes (defined separately in EPTL 1-2.14, and still used when a will expressly says "per stirpes"), each deceased child's share stays within that child's own line.

Example 1: one child predeceased

E dies before A. A then dies without a will or spouse, survived by B, C, D, F, G, H and I. The nearest generation with a living member is the children. There are three living children (B, C, D) and one deceased child who left issue (E), so the estate is divided into four shares. B, C and D each take one-quarter. E's one-quarter passes to H and I, who take one-eighth each. F and G take nothing because their parents are alive and took their own shares.

Per stirpes produces the same result here. The two systems only diverge when more than one child has died leaving unequal numbers of descendants, or when the entire children's generation is gone.

Example 2: two children predeceased with different numbers of grandchildren

B and E both die before A. C and D survive. A dies without a will or spouse. The children's generation still has living members, so the estate is divided into four shares: two for the living children (C and D) and two for the deceased children who left issue (B and E). C and D take one-quarter each.

The remaining two-quarters, which is one-half of the estate, are pooled. The surviving issue of B and E are F, H and I. The pool is divided equally among the three of them, so F, H and I each take one-sixth of the estate.

Compare strict per stirpes: F would take all of B's one-quarter, and H and I would split E's one-quarter, taking one-eighth each. Under New York's rule, F receives less (one-sixth instead of one-quarter) and H and I each receive more (one-sixth instead of one-eighth). The policy is that grandchildren in the same generation are treated equally with one another, regardless of how many siblings each one has.

Example 3: all four children predeceased

B, C, D and E all die before A, and A dies intestate with no spouse. The nearest generation with a living member is now the grandchildren. F, G, H and I are all alive, so the estate is divided into four equal shares and each grandchild takes one-quarter. D is disregarded because D left no issue.

Strict per stirpes would give a different answer. Division would still occur at the children's level among the three children who left issue (B, C and E), producing three shares: F one-third, G one-third, and H and I one-sixth each. New York rejects that outcome for intestate estates. When the grandchildren are the nearest living generation, they share equally.

The same method continues downward. If a grandchild also predeceased leaving great-grandchildren, the great-grandchildren would take the pooled remainder in the same way.

When the grandparent left a will: the anti-lapse statute, EPTL 3-3.3

A will controls over the intestacy statute. The question becomes what the will says, and what New York law supplies when the will is silent.

Ordinarily a gift to a person who dies before the testator "lapses" and falls into the residuary estate. EPTL 3-3.3 creates an exception for close family. If the beneficiary is the testator's issue or the testator's brother or sister, and the beneficiary dies before the testator leaving issue who survive the testator, the gift does not lapse. It vests in the beneficiary's surviving issue "by representation" for wills executed on or after September 1, 1992 (per stirpes for older wills). The statute protects gifts to children, grandchildren and siblings only. It does not save a gift to a spouse, a nephew, a friend or a charity.

Applied to the example: A's will leaves one-quarter of the estate to E. E dies before A. H and I take E's quarter by representation, one-eighth each, unless the will provides otherwise.

How a will can cut off the grandchildren

EPTL 3-3.3 applies "unless the will whenever executed provides otherwise." The two common ways a will overrides the statute are:

• A survivorship condition: language such as "to my daughter E, if she survives me" or "to my children who survive me." New York courts generally treat an express survivorship requirement as a contrary intent that defeats the anti-lapse statute. The gift to E fails and passes under the residuary clause or, if there is none, by intestacy.
• An express alternate disposition: "if E does not survive me, her share shall pass to my surviving children" or "shall lapse and become part of my residuary estate."

New York has no forced heirship for descendants. Only a surviving spouse has a statutory right to a minimum share (the right of election under EPTL 5-1.1-A). A grandparent may leave grandchildren nothing, by naming other beneficiaries or by using survivorship language, and the grandchildren have no claim unless they can show the will is invalid. If you believe a will was procured by undue influence or signed without capacity, see our page on contesting a will in New York.

Gifts to "my children" as a class

Suppose the will leaves the estate "to my children, in equal shares" without naming them. EPTL 3-3.3(a)(2) applies the anti-lapse rule to class gifts to issue and siblings as if each member were named. H and I would still take E's share. There is one exception: the statute gives nothing to the issue of a class member who died before the will was signed. If E had already died when A signed a will leaving the estate "to my children," H and I take nothing under that clause, because A is presumed to have known E was gone and chose not to provide for E's line.

Separately, under EPTL 2-1.2, a gift in a post-1992 will to a person's "issue" is distributed by representation under 1-2.16 unless the will specifies another method. Many New York wills say "per stirpes" expressly, and that language controls.

Timing: parent died before versus shortly after the grandparent

Everything above assumes the parent died first. The order of death matters. If E survived A, even by a few days, E's share belongs to E's estate. It then passes under E's own will or E's own intestacy, which may send it to E's spouse rather than to H and I. Grandchildren inherit directly only when their parent is treated as having predeceased.

EPTL 2-1.6 supplies a 120-hour rule. A person who does not survive the decedent by at least 120 hours is deemed to have predeceased for purposes of intestacy and, unless the instrument says otherwise, for gifts under a will. If A and E die in the same accident and E survives for two days, E is treated as having died first, and H and I take by representation. A will can set a longer survivorship period, and many do, commonly 30 days.

Renunciation (disclaimer) and its effect on grandchildren

A beneficiary or distributee may renounce an inheritance under EPTL 2-1.11. The renunciation must be in writing, acknowledged, and filed with the Surrogate's Court within nine months of the decedent's death, and it is irrevocable. The renouncing person is treated as having predeceased the decedent. In most cases this sends the renounced share to the renouncing person's own issue by representation. A parent who does not want or need an inheritance can therefore route it to the grandchildren, which is sometimes done for estate tax or creditor reasons. A renunciation on behalf of a deceased beneficiary's estate, or on behalf of a minor, can be made only by the fiduciary or guardian with authorization from the court. The tax treatment of a disclaimer under Internal Revenue Code section 2518 has its own requirements, so coordinate with a tax advisor before filing.

Adopted grandchildren

An adopted child is treated as the natural child of the adoptive parent for inheritance purposes under Domestic Relations Law 117, and EPTL 4-1.1(d) incorporates that rule into intestacy. If E adopted H, H inherits from A exactly as a biological grandchild would. For wills, EPTL 2-1.3 provides that class terms such as "children," "grandchildren" and "issue" include adopted children unless the will expresses a contrary intent.

The reverse situation is more complicated. A child adopted out of the family generally loses the right to inherit from birth relatives. DRL 117 contains exceptions for adoptions within the family, including adoption by a stepparent or by certain relatives, where the child may still inherit from the birth grandparent. The specific subdivision and the date of the adoption decree control, and these cases should be reviewed individually.

Non-marital grandchildren

A child born outside marriage is the legitimate child of the mother for all inheritance purposes and inherits from and through the mother's family without any special proof (EPTL 4-1.2(a)(1)). To inherit from or through the father, the grandchild must establish paternity under EPTL 4-1.2(a)(2). Accepted methods include a court order of filiation, a signed acknowledgment of paternity filed under the Public Health Law, genetic marker testing, or clear and convincing evidence of paternity combined with proof that the father openly and notoriously acknowledged the child as his own. These issues arise often in kinship proceedings when a grandparent dies without a will and a grandchild through a deceased son comes forward. EPTL 2-1.3 likewise includes non-marital children in class gifts under a will unless the will provides otherwise.

Step-grandchildren and half-blood grandchildren

A step-grandchild is not "issue" of the grandparent and has no intestate rights. A step-grandchild inherits only if named in the will or if the stepparent adopted the child. A will that leaves property to "my grandchildren" ordinarily does not include step-grandchildren.

Half-blood relationships do not reduce a share. EPTL 4-1.1(b) treats relatives of the half blood the same as relatives of the whole blood. A grandchild descended from the decedent's child by a first marriage takes the same share as a grandchild descended from a child of a second marriage.

When the grandchild is a minor

A minor cannot receive an inheritance outright. If a grandchild under 18 is a distributee or beneficiary, the Surrogate's Court appoints a guardian ad litem under SCPA 403 to protect the child's interest in the proceeding, and a guardian of the property under SCPA Article 17 is usually needed to receive the funds. The court typically directs that the money be held in a jointly controlled account that cannot be withdrawn without a court order until the child turns 18. For modest amounts, a fiduciary may be able to transfer the funds to a custodian under New York's Uniform Transfers to Minors Act (EPTL Article 7, Part 6) within the limits the statute sets. A grandparent who wants to avoid court-supervised accounts for young grandchildren can provide for them in a will through a testamentary trust or a custodianship designation.

How a grandchild claims the share in Surrogate's Court

Having a right to inherit and collecting the inheritance are two different things. The practical steps in a New York estate are:

1. Identify the fiduciary: If there is a will, the executor named in it petitions for probate. If there is no will, someone must petition for letters of administration. Under SCPA 1001, grandchildren are eligible to serve as administrator, ranking after the surviving spouse and children. See our pages on estate administration in New York and who becomes administrator when there is no will.
2. Prove kinship: The petition must list every distributee. When a distributee is a grandchild or someone more remote than a spouse, child or parent, the Surrogate's Court rules (22 NYCRR 207.16) require a family tree affidavit from a disinterested person who knows the family. Our pages on the affidavit of heirship and on when an affidavit of heirship is required explain what the affidavit must contain.
3. Supply documents: Expect to produce the grandparent's death certificate, the deceased parent's death certificate, and the grandchild's birth certificate showing the parent's name. Adoption decrees, orders of filiation and acknowledgments of paternity are needed where they apply.
4. Kinship hearing if contested: If the fiduciary or another party disputes the grandchild's status, or if the family tree cannot be established from records, the court may hold a kinship hearing. The claimant bears the burden of proving the relationship by a preponderance of the evidence, usually through certified vital records, genealogists and family witnesses. Where distributees cannot be located after a diligent search, the court may proceed under SCPA 2225, and the Public Administrator or Attorney General may appear for unknown heirs.
5. Receive the distribution: After debts, taxes and expenses are paid, the fiduciary distributes the share. If the grandchild is a minor, distribution goes to the guardian as described above. A grandchild who believes the fiduciary is withholding or mismanaging the share can compel an accounting in Surrogate's Court.

Frequently asked questions

Does a grandchild inherit if the will says "per stirpes"?

Yes. "Per stirpes" is an instruction that a predeceased beneficiary's descendants take that beneficiary's share. The division method follows EPTL 1-2.14 rather than 1-2.16, so each deceased child's share stays within that child's line instead of being pooled. In Example 2 above, that would give F one-quarter and H and I one-eighth each.

What if the will names only the children and says nothing about grandchildren?

EPTL 3-3.3 fills the gap. A gift to a child who predeceases the testator passes to that child's issue by representation. The exceptions are a survivorship condition or an alternate disposition in the will, and, for a class gift, a child who had already died when the will was signed.

Can a will cut out grandchildren completely?

Yes. New York descendants have no guaranteed share. A grandparent may leave the estate to anyone, and language such as "to my children who survive me" leaves the children of a deceased child with nothing. Grandchildren left out of a will have a remedy only if they can challenge the will's validity.

Do step-grandchildren inherit?

Not under intestacy, and not under a will unless they are named or the will defines "grandchildren" to include them. Adoption by the step-grandparent's child changes the answer, because an adopted child is a legal child under DRL 117.

What if my parent died a week after my grandparent?

If your parent survived the grandparent by 120 hours or more, the share belonged to your parent and passes through your parent's estate under your parent's will or intestacy. You may still receive it, but through your parent's estate rather than directly, and your parent's spouse may have a prior claim. If your parent survived by less than 120 hours, EPTL 2-1.6 treats your parent as having predeceased and you take directly by representation.

My grandparent died before 1992. Does the same rule apply?

No. For decedents who died before September 1, 1992, and for wills executed before that date, "by representation" and gifts to "issue" were generally distributed per stirpes. Old estates that are only now being administered must apply the law in effect at the date of death.

Speak with a New York estate attorney

Working out shares among grandchildren under EPTL 1-2.16, proving kinship in Surrogate's Court, and reading a will's survivorship language correctly are tasks where a wrong assumption can cost a family a share of the estate. The Law Offices of Albert Goodwin handles estate administration, probate and kinship matters in Surrogate's Courts across New York, with offices in Manhattan, Brooklyn and Queens. For a consultation, call 212-233-1233 or email [email protected].