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Father who failed to support child is not an intestate heir of child. In re Lee, 2021 NY Slip Op 30984(U) (N.Y. Surr. Ct. 2021)


When a person dies without a will, they would have died intestate.  When this happens, their estate is distributed according to New York’s law of intestate succession to those who are considered the decedent’s next of kin. Typically, this means that the decedent’s surviving spouse and children would inherit.  In the absence of either, the decedent’s parents would inherit.

Because minors do not have the capacity to execute wills, when a minor passes away, their parents are typically first in line to inherit unless they are disqualified. Under New York law, on petition, a parent can be disqualified from inheriting if they failed to support the child.  Under Family Law Act § 413, parents have an obligation to support their children.

In the case of In re Lee, the decedent was 14-years-old when she died by suicide. She left an estate.  It is unclear how much her estate was worth or how the decedent received the property in her estate.  She was survived by her divorced parents.  Her mother, the custodial parents, was appointed the administrator of the decedent’s estate.  The mother filed a disqualification petition to prevent the decedent’s father from being named an intestate heir and inheriting from the decedent’s estate.  The father opposed the disqualification petition on the ground that he was unable to pay more support than he did.

While New York law is clear that when a person dies without a spouse or children, their distributees are their parents, the law is states that a parent can be prevented from receiving a distribution from their deceased child’s estate if they refused to support the child or if they abandoned the child.

In this case, in support of her petition to disqualify that father, the petitioner argues that although the father had the means to financially support the child, he chose not to.  This point is significant as the law does not allow a parent to be disqualified simply because they failed to support the child.  It will disqualified a parent if they refused to support a child.  In other words, if a parent simply did not have the means to support their child, that alone would not be grounds for disqualification, while refusal to support would be.

Here, the father was ordered to pay child support.  Records indicated that the petitioner was owed $23,650 in back child support payments.  The petitioner produced statements from the Office of Child Support Enforcement show that the total amount due with interest was $70,339.49.  In addition, the petitioner showed that the decedent had only made sporadic payments of child support.

The father argued that he “paid what he could” and gave several reasons why he was not able to pay the ordered amount.  However, there was no indication that a downward modification of his support obligation was warranted. As a result, the court ruled in favor the petitioner-mother, disqualifying the father as an intestate heir and distributee of the decedent. Furthermore, while no additional child support will accumulate, the father may still be required to pay the mother the $70K+ that he owes in back support.

Note that in addition to refusing to support the child, another reason that a parent could be disqualified is if their parental rights were terminated. Parental right can be terminated by the court due to abandonment, permanent neglect, mental illness, mental retardation, and severe and repeated abuse.



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