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Through a kinship hearing the court determined that decedent had children who were entitled to his estate.  In re D.W.L, 71 Misc.3d 1204(A) (N.Y. Surr. Ct. 2021)


Leaving a will is the best way to ensure that property left in your estate after you pass away goes to the people you want to receive it.  Unfortunately, not everyone leaves a will. Intestate succession rules are in place to determine who is entitled to a decedent’s estate in the absence of a will. In other words, if you do not leave a will, New York provides a will for you.  Under New York’s law of intestate succession, a decedent’s heirs are always their surviving spouse or children, if any. Other relatives, such as parents and siblings would only be entitled to a decedent’s estate if the decedent passed way without either a surviving spouse or children.

In the case of In re D.W.L., the decedent passed away intestate in February 2007 at the age of 33 due to accidental carbon dioxide poisoning.  He was unmarried.  He was survived by his mother.  There were also 3 minor children who claimed (through their mothers) that the decedent was their father.

In September 2007 the decedent’s mother filed a petition for letters of limited administration. Initially she included in the petition that the decedent had 3 children. A year later she amended her petition to state that he had no children. This is significant because if he had no children, his mother would be his next of kin and entitled to his entire estate.  On the other hand, if he had children, they would be entitled to his entire estate and his mother would not be entitled to any portion of his estate.

In February 2009, a wrongful death lawsuit was filed against the building in which the decedent died, claiming that their negligence resulted in his death. The lawsuit was settled for $150,000. Instead of the estate having little to no assets, suddenly it as worth $150,000.

A kinship hearing was set to determine whether the 3 putative minor children of the decedent were in fact his children. The burden was on the children to prove paternity.  Where paternity is questioned about a non-marital child, it must be established by clear and convincing evidence.  For example, even if no paternity test was ever administered and if the putative father’s name was not put on the birth certificate of the child, the father “openly and notoriously” demonstrating his belief that the child was his own would be evidence of paternity under New York law.  EPTL § 4-1.2 [2][C][ii].

Here, the mothers of the 3 children provided detailed evidence of the circumstances of their relationships with the decedent and his relationships with the children.  Their evidence made it clear that the decedent never doubted that the children were his and that he maintained relationships with them.

As a result, the court concluded that kinship was established, making the 3 children the decedent’s sole heirs.  They were entitled to share in his entire estate, after expenses and fees were paid.  The decedent’s mother was not entitled to any part of the estate.

The facts in In re D.W.L. are a good example of the importance of having a will.  Some believe that if you do not have assets or have very few assets, a will is not necessary.  There is also a belief that young adults do not need a will.  Wills are not only for people who are wealthy  or who have attained a certain age.  It is prudent for every adult to make an estate plan that includes a will.

It appeared that the decedent in In re D.W.L., had very few, if any assets.  In fact, the record indicates that he spent much of his adult life homeless or in jail.  However, as a result of the circumstances of his death at the young age of 33, his estate received a significant wrongful death settlement.  If he had made a will, it is possible that in addition to naming his 3 children as beneficiaries, he might have also named his mother has a beneficiary.

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