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Father who failed to support child is not an intestate heir of child. Matter of Gonzalez, 196 Misc.2d 984 (N.Y. Surr. Ct. 2003)


A last will and testament allows a testator to specific who will receive their property upon death.  It is an effective way to ensure you’re your property goes to who you want to receive it. However, many people do not leave wills, dying intestate.  As result, New York’s law of intestate succession applies and dictates who gets the property in the decedent’s estate.  The surviving spouse and children, if any, would be entitled to inherit.  In the absence of either, the decedent’s parents would be next in line to inherit, followed by siblings.

In Gonzalez, the 27-year-old decedent died in the World Trade Center on September 11, 2001.  She was survived by her father, sister, and brother.  The brother and sister applied for letters of administration.  Separately, the father did as well. The brother and sister petitioned the court for summary judgment granting their petition for the issuance of letters of administration. Their request for summary judgment also requested that the court dismissed the decedent’s father’s petition despite the fact that the father was the decedent’s presumptive distributee.

The petitioners argued that the father is disqualified from inheriting because he failed to or refused to provide for her or that he abandoned her.  As a result, under EPTL 4-1.1 her estate should be distributed as if the father had predeceased the decedent.  That would mean that the petitioners would be her distributees.

The decedent’s parents were never married, and her mother died in February 2001. The father moved to Florida when the decedent was approximately seven years old.  He left his other kids in the care of others.  The decedent and his other daughter (the petitioner) lived with their maternal grandmother and great grandmother.  The decedent’s brother (the other petitioner) was placed in foster care.  The father provided no financial support for his children, including the decedent, while they were minors.

The father explained that he left the children because he felt that they would be better off being cared for by others.  He also conceded that it was true that he did not pay child support.  His reasoning was that he was not asked to.  In addition, the father had seen the decedent only rarely since he moved to Florida and did not even know that the decedent worked in the World Trade Center.

The court concluded that the father essentially abandoned the decedent. Even when the father had opportunities to spend meaningful time with his daughter he did not.  For example, when he visited New York, he did not take the  opportunity to teach her anything nor did he attend her birthday parties.   In fact, the evidence showed that the father was content to let others care for her and parent her.  Except for a few visits over the course of the decedent’s life, the father made a choice to be absent from her life.

Now, both the decedent’s father and the decedent’s siblings filed petitions seeking to be appointed administrators of the decedent’s estate.  The decedent’s siblings objected to the father’s petition.  Even though under New York’s law of intestate succession the father was the decedent’s presumptive distributee and would be entitled to receive letters of administration, the siblings argued that he should be disqualified from taking a distributive share in her estate under EPTL § 4-1.4 (a) on the grounds that  he abandoned the decedent or on the grounds that he failed to support her.

The court agreed with the siblings.  It found that the father had not supported the decedent as a minor and had abandoned her.  Further, the court found that the decedent had failed to rekindle a relationship with her as an adult.  As a result, he was not entitled to be a distributee of the decedent’s estate and was not entitled to any wrongful death recovery, including sums that representatives of victims of the 9/11 attacks received from various sources.  This would also mean that he would not be entitled to other benefits that go along with being a distributee, such as the right to receive letters of administration.


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