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Father had not abandoned child and was entitled to share in child’s intestate estate, In the Matter of Estate of Ball, 24 A.D.3d 1062, (N.Y. App. Div. 2005)


New York law provides that a parent would not be entitled to share in the intestate estate of their minor child if the parent did not support the child during their life or if the parent abandoned the child. EPTL §4-1.4(a). In In the Matter of Estate of Ball, the father of the deceased child argued that he should not have been disqualified based on failure to pay child support.

In February 2003, the child died while in daycare.  He was 20 months old at the time. The mother sought to prevent the child’s father from sharing in the child intestate estate. The mother and father of the child were not married. The child was conceived from a casual relationship. The father initially doubted paternity and the mother did not put the father’s name on the child’s birth certificate.

After the child was born, the mother gave the father’s name to Seneca County Department of Social Services.  However, the father made voluntary payments to mother to help support the child. Paternity was later established through a blood test and the father consistently paid child support pursuant to an order. The father receive an $11,000 workers compensation settlement. However, he did not disclose it to the mother or to child support services.

Upon the tragic death of the child at 20 months, the mother petitioned the Surrogate’s Court to prevent the father from receiving any part of the child’s intestate estate. The Surrogate’s Court of Tompkins County entered an order declaring the decedent’s father to be disqualified from taking an intestate share. The Surrogate’s Court decision was based largely on the father’s failure to disclose the workers’ compensation settlement to the mother or child support services.  The father appealed.

The law clearly states that a parent would be ineligible to receive a distributive share of the child’s intestate estate if the parent failed to support the child or if the parent abandoned the child.

Here, the record showed that the father made payments to the more before a child support order was in place and continued to make consistent payments pursuant to the order.  On the issue of abandonment, while the father did not spent a lot of time with the child, he did make attempts to call the mother and see the child, but the mother thwarted many of his attempts even after court ordered visitation was established. In fact, after the mother expressed distrust for him and his new girlfriend, the father invited the mother to inspect his home and meet his fiancée, but she refused. He also testified that he offered to take care of the child during the day as an alternate to daycare.

Despite the father consistently paying child support and making attempts to see the child, the Surrogate’s Court found that father’s failure to disclose the workers’ compensation settlement was sufficient to conclude that he failed to adequately support decedent.

The Appellate Division disagreed.  Noting that the father made both voluntary and ordered support payments, the court concluded that failure to disclose the Workers’ compensation settlement was not enough to support a find of failure to support pursuant to EPTL §4-1.4(a). Further, based on his attempts to see the child, the Appellate Division could not find evidence to support a finding that the father had abandoned the child. The court noted that the father had filed a petition for custody of the child, claiming that the mother had made it difficult for him to see the child.

The decision does mention the amount of money in the child’s estate, so it is unclear how much money is at stake. Typically babies do not have significant assets.  An assumption can be made that since the child died while at daycare, the child’s death may have been due to negligence. The child’s estate may include a substantial personal injury settlement that the mother does not want to share with the father.

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