Do Grandchildren Usually Get an Inheritance in New York?

By Albert Goodwin, Esq., Law Offices of Albert Goodwin, New York City

In New York, grandchildren usually do not inherit from a grandparent while their own parent is alive. A grandchild inherits in four main situations: the grandparent named the grandchild in a will, trust or beneficiary designation; the grandchild's parent died before the grandparent and the grandchild steps into that parent's place; the grandparent left no surviving children at all; or the grandchild's parent formally disclaimed the inheritance. Each of these paths runs through a specific section of the New York Estates, Powers and Trusts Law (EPTL), and the math is not always what families expect. This guide walks through the rules as they apply in New York Surrogate's Court.

The short answer for New York grandchildren

• Parent alive, no will: the grandchild gets nothing. The parent takes the share.
• Parent died first, no will: the grandchild takes the parent's share "by representation" under EPTL 4-1.1 and EPTL 1-2.16.
• No surviving children at all, no will: the grandchildren are the nearest issue and share the estate equally among themselves (after any spouse's share).
• Will names the grandchild: the grandchild takes what the will gives, subject to estate debts and abatement.
• Will names the parent, parent died first: the anti-lapse statute, EPTL 3-3.3, usually passes the gift to the grandchild unless the will says otherwise.
• Will leaves the grandchild out on purpose: New York allows it. Grandchildren have no forced share.

Do grandchildren inherit if there is no will in New York?

When a New Yorker dies without a will, EPTL 4-1.1 sets the order of distribution. The statute does not use the word "grandchildren." It uses the word "issue," which under EPTL 1-2.10 means descendants in every degree: children, grandchildren, great-grandchildren and so on. The rule within a family line is that the nearer generation excludes the farther one. If the decedent's child is alive, that child takes and the child's own children take nothing. If the decedent's child died first, the child's issue step up and take that branch's share.

The table below shows where grandchildren fit under EPTL 4-1.1(a) for a decedent who died on or after September 1, 1992.

How much do grandchildren get when there is a surviving spouse?

The spouse's share comes off the top. Suppose a Queens grandmother dies without a will leaving a net estate of $350,000, a husband, one living daughter, and two grandchildren whose father (her son) died years earlier. The husband takes $50,000 plus one-half of the remaining $300,000, for a total of $200,000. The other $150,000 passes to the issue by representation. The living daughter takes $75,000. The two grandchildren split their late father's $75,000, or $37,500 each. If the estate were $50,000 or less, the spouse would take all of it and the grandchildren would receive nothing.

What "by representation" means in New York (EPTL 1-2.16)

This is the point that trips up most families, and it is where New York differs from the "per stirpes" approach many people assume applies. For decedents dying on or after September 1, 1992, EPTL 4-1.1 distributes to issue "by representation," which EPTL 1-2.16 defines as per capita at each generation. The estate is divided at the nearest generation that has at least one living member. Each living member of that generation takes one share. The shares belonging to deceased members who left issue are pooled together and divided equally among all of the issue at the next generation, regardless of which branch they come from.

A worked example shows the difference. A Brooklyn grandfather dies without a will or spouse, leaving a $300,000 estate. He had three children: Ana, who is alive; Ben, who died first leaving one child; and Carla, who died first leaving three children.

• Strict per stirpes (the old New York rule for deaths before September 1, 1992): Ana takes $100,000. Ben's one child takes Ben's entire $100,000. Carla's three children divide her $100,000, receiving about $33,333 each.
• By representation (current New York rule): The estate is divided into three shares at the children's level because that generation has a living member. Ana takes her $100,000. The two remaining shares, $200,000, are pooled and divided equally among the four grandchildren. Each grandchild receives $50,000.

Under the current rule, cousins in the same generation are treated equally even though one lost a parent with one child and the others lost a parent with three. If every one of the decedent's children has died, the division happens at the grandchildren's generation, and every grandchild takes an equal share no matter how many siblings each has.

The same "by representation" default applies to wills and trusts that leave property to "issue" without saying how to divide it, if the instrument was signed on or after September 1, 1992 (EPTL 2-1.2). A grandparent who wants a strict per stirpes split must say so in the document.

Do grandchildren inherit if their parent is still alive?

Under intestacy, no. The living parent takes the entire share for that branch, and the grandchild has no claim against the grandparent's estate. The grandparent may be the person who raised the grandchild, paid for school, or lived with the grandchild for decades. None of that changes the statute. A grandchild in this position inherits only if the grandparent used a will, a trust, a joint account, a Totten trust ("in trust for") bank account, or a beneficiary designation on a retirement account or life insurance policy.

When the parent disclaims under EPTL 2-1.11

There is one exception. A living child who does not want the inheritance can renounce it under EPTL 2-1.11. The renunciation must be in writing, signed and acknowledged, filed with the Surrogate's Court within nine months of the date of death, and served on the fiduciary. Once filed, the law treats the renouncing child as if he or she had died before the decedent, so the renounced share passes to that child's own issue by representation. A parent cannot use a disclaimer to steer the share to a chosen grandchild. The share goes where the statute or the will sends it. Parents sometimes disclaim for tax or Medicaid planning reasons, and the Medicaid consequences of a disclaimer need separate review before filing.

What if my parent died before my grandparent and there is a will? The anti-lapse rule

A gift in a will to someone who dies before the testator ordinarily "lapses" and falls into the residuary estate. New York's anti-lapse statute, EPTL 3-3.3, changes that result for two categories of beneficiaries: the testator's issue and the testator's brothers and sisters. If a grandparent's will leaves property to a child, and that child dies first leaving issue who survive the grandparent, the gift does not lapse. It vests in the deceased child's issue. For wills signed on or after September 1, 1992, the issue take by representation; for earlier wills, per stirpes.

Example: a Manhattan grandmother's will leaves $200,000 to her son. The son dies two years before she does, leaving two children. The $200,000 passes to the two grandchildren, $100,000 each, even though the will never mentions them. The statute also applies to class gifts such as "to my children in equal shares."

Language that defeats anti-lapse

EPTL 3-3.3(b) states that the statute applies "unless the will whenever executed provides otherwise." A grandparent who does not want grandchildren to step in can say so directly, for example by providing that if a child predeceases, the gift returns to the residuary estate. New York courts have also treated express survivorship conditions, such as "to my children who survive me," as evidence that the testator intended to exclude the issue of a child who did not survive. Grandchildren reading a will should look closely for words like "surviving," "who survive me," or "then living." Those words can cost a grandchild the entire gift.

The anti-lapse statute is written for wills. A gift in a lifetime revocable trust is governed by the trust's own terms, which should be read carefully for substitution or survivorship language.

Can grandchildren be disinherited in New York?

Yes. New York protects a surviving spouse with an elective share under EPTL 5-1.1-A, and it gives minor children limited exempt property under EPTL 5-3.1. It gives no forced share to grandchildren, or to adult children. A grandparent may leave everything to one grandchild and nothing to the others, leave everything to charity, or leave everything to a caregiver. The will does not have to mention the omitted grandchildren.

A promise is not enough. Grandparents often tell a grandchild "the house will be yours someday." Under EPTL 13-2.1(a)(2), a contract to make a testamentary provision must be in writing and signed by the person making it. An oral promise, however sincere, is generally unenforceable against the estate. A grandchild who gave up a job or provided years of care in reliance on an oral promise may have other theories to explore, but they are difficult claims and depend heavily on documentation.

Adopted, step, non-marital and half-blood grandchildren

Adopted grandchildren

Domestic Relations Law 117 gives an adopted child the same inheritance rights from and through the adoptive parents as a biological child. A child adopted by the decedent's son or daughter is the decedent's grandchild for intestacy and for class gifts to "issue" or "grandchildren" in a will. Adoption generally ends the child's right to inherit from and through biological parents, but DRL 117(1)(e) preserves that right in intrafamily adoptions: when the decedent is the child's biological grandparent or a descendant of that grandparent, and the adoptive parent is married to the biological parent (a stepparent adoption), or is the child's biological grandparent, or is descended from that grandparent. A grandchild adopted by a stepfather or by an aunt therefore usually keeps the right to inherit from the biological grandparent.

Stepgrandchildren

A stepgrandchild is not "issue" of the step-grandparent and inherits nothing under EPTL 4-1.1. A will or trust that says "to my grandchildren" is presumed to mean biological and adopted grandchildren only, unless the document defines the term to include stepgrandchildren. Step-grandparents who want to provide for a stepgrandchild must name that person.

Non-marital grandchildren

Under EPTL 4-1.2, a child born outside marriage is the legitimate child of the mother and inherits from and through her without any further proof. To inherit from or through the father, paternity must be established in one of the ways the statute allows: an order of filiation during the father's lifetime, a signed acknowledgment of paternity filed under Public Health Law 4135-b, or clear and convincing evidence, which may include a genetic marker test or proof that the father openly and notoriously acknowledged the child as his own. This matters to grandchildren in two ways. If the grandchild's parent was the decedent's non-marital child, the parent's paternity must be proven before the grandchild can take through that parent. If the grandchild is the non-marital child of the decedent's son, the son's paternity must be proven. These issues are typically litigated in a kinship hearing.

Grandchildren from different marriages

All grandchildren descend from the decedent equally. A grandchild whose parent was from the decedent's first marriage has the same standing as a grandchild from the second marriage. EPTL 4-1.1(b) also provides that relatives of the half blood are treated as relatives of the whole blood, which matters when distribution reaches siblings and their issue.

Grandchildren who are minors

A minor cannot receive an inheritance outright in New York. If a grandchild under 18 inherits by intestacy or under a will that makes no other arrangement, the funds are usually paid to a guardian of the property appointed under SCPA Article 17 or deposited with the court under SCPA 2220 until the child turns 18. Guardianship requires a court proceeding and annual accountings. Grandparents who want to avoid this commonly use a trust for the grandchild or a custodial account under the New York Uniform Transfers to Minors Act (EPTL Article 7, Part 6), which can hold the property until age 21.

What a left-out grandchild can do in Surrogate's Court

The first question is whether you qualify as a "distributee," meaning a person who would inherit under EPTL 4-1.1 if there were no will. A grandchild is a distributee if his or her parent died before the grandparent, or if none of the grandparent's children survived. A grandchild whose parent is alive is not a distributee and has far fewer options.

Objecting to probate of the will

Under SCPA 1410, any person whose interest in the estate would be adversely affected by admitting the will may file objections. A distributee grandchild who would take more under intestacy has standing. So does a grandchild who was a beneficiary under an earlier will and receives less under the new one. The grounds for a will contest in New York are lack of due execution under EPTL 3-2.1, lack of testamentary capacity, undue influence, fraud and revocation. Before filing objections, the grandchild may examine the attesting witnesses and the drafting attorney under SCPA 1404. Our page on contesting a will in New York explains the process and the deadlines in detail.

Serving as administrator

When there is no will, SCPA 1001 ranks who may receive letters of administration. Grandchildren are third in line, after the spouse and the children. A distributee grandchild can petition for letters when no spouse or child is available or eligible. See appointing an administrator when there is no will and letters of administration.

Proving kinship

Grandchildren inherit through a chain of relationships, and the court requires proof of every link: the grandparent's death certificate, the parent's birth certificate showing the grandparent as parent, the parent's death certificate showing death before the grandparent, and the grandchild's own birth certificate. The court also expects proof that the family tree is complete, so that no closer or additional distributees exist. In a straightforward administration this is handled with an affidavit of heirship from a disinterested person who knew the family. Where records are missing, the relationship is contested, or the Public Administrator is involved, the Surrogate holds a kinship hearing under SCPA 2225. Immigrant families and families with records abroad should start gathering documents early.

Getting information and an accounting

A grandchild who is a distributee or a beneficiary is entitled to notice of the probate proceeding and to a copy of the will. Beneficiaries may also compel the executor or administrator to account. If the estate is being mishandled, see our page on inheritance disputes in New York. For an overview of how long these proceedings take, see our sample NYC probate timeline.

Frequently asked questions

Do grandchildren automatically inherit in New York?

No. Under EPTL 4-1.1 a grandchild inherits by intestacy only if his or her parent died before the grandparent, or if the grandparent left no surviving children. Otherwise the grandchild inherits only if named in a will, trust or beneficiary designation.

If all of my grandparent's children have died, how is the estate split among the grandchildren?

Equally, per head. Under EPTL 1-2.16 the division is made at the first generation with a living member. If that is the grandchildren's generation, each grandchild takes an equal share regardless of how many siblings each one has.

My grandfather's will left everything to my mother, who died before him. Do I get her share?

Usually yes. EPTL 3-3.3 passes a gift to a predeceased child to that child's issue by representation, unless the will provides otherwise. Read the will for survivorship language such as "if she survives me," which may defeat the statute.

My parent is alive but my grandmother wanted me to have her apartment. Can I claim it?

Not under intestacy, and not on the strength of an oral promise. EPTL 13-2.1 requires a written, signed agreement to make a testamentary provision. If your grandmother left a will or trust naming you, that document controls.

Can a grandchild contest a will in New York?

Only a grandchild with standing under SCPA 1410, meaning a distributee whose intestate share would be larger, or a beneficiary under a prior will who is adversely affected. A grandchild whose parent is alive generally lacks standing unless named in an earlier will.

Does my adopted child inherit from my parents?

Yes. Under DRL 117, a child adopted by you has the same rights to inherit from and through you as a biological child, including from your parents.

How much does the surviving spouse take before grandchildren get anything?

Under EPTL 4-1.1(a)(1), the spouse takes the first $50,000 plus one-half of the remainder. The issue, including any grandchildren taking by representation, share the other half.

Do these rules apply if my grandparent died before September 1, 1992?

No. Estates of decedents who died before that date are distributed per stirpes under the former law, and the anti-lapse statute for wills signed before that date also uses per stirpes. Old estates that were never administered still come up, especially with real property in Brooklyn and Queens that was never transferred out of a grandparent's name.

Talk to a New York estate attorney about a grandchild's inheritance

The answer in your family depends on who survived whom, whether there was a will, what the will says about survivorship, and whether every relationship in the chain can be proven to the Surrogate's satisfaction. We handle probate, administration, kinship and will contest matters in the Surrogate's Courts of New York County, Kings County, Queens County and the surrounding counties. Call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected] to discuss your situation. We have offices in Manhattan, Brooklyn and Queens.

This page is general legal information about New York law and is not legal advice for any particular situation. Statutory citations are to the New York Estates, Powers and Trusts Law (EPTL), Surrogate's Court Procedure Act (SCPA) and Domestic Relations Law (DRL) as currently in effect.