New York Probate Lawyer Explains Importance of a Will When You Have Children Born Out of Wedlock


Most people understand that a carefully planned last will and testament (a “will”) is the cornerstone of a solid estate plan. A will is a legal document that states what will happen to a person’s property at the time of his or her death after any debts are paid. If you do not have a will, your property will be distributed among your relatives according to a set of rules established by state law. For instance, if you are married and have children, your estate will be divided among your spouse and your children, no matter what their ages. Such a result would often cause great hardship and expense for the family. As an experienced New York probate lawyer, William A. Simon can explain the important benefits of having a last will and testament.

Non-traditional family situations make having a will even more important. One situation where this issue may arise is where there are children that were born outside of marriage. Children born from a married couple have certain legal protections. However, when the parents are not married to each other, different rules apply. New York’s law concerning inheritance where there is no will says that a child born out of wedlock is the mother’s child and has the same rights to inherit from her as a child born in wedlock. However, a non-marital child’s rights to inherit from his or her father are not as clear.

In order for a non-marital child to inherit from his or her father, the relationship between the father and the child must be legally established. In some cases there is a court order or formal written acknowledgment of paternity by the father during his life. If not, paternity must be established after the father’s death by “clear and convincing evidence” which may include genetic testing or evidence that the father “openly and notoriously acknowledged the child as his own.”

A New York surrogate court recently grappled with this very issue in a case involving a non-marital son. The son presented evidence that his father acknowledged him in this role, including testimony from the father’s friend and business associate, testimony from his mother and a letter that his father had written to him. The court did determine that the son had the right to inherit because the father openly and notoriously acknowledged him.

Obtaining an order for genetic testing after the father’s death is not automatic and not easy. Being involved in a court battle over the issue of paternity can be expensive and emotionally wrenching for a family.

The uncertainty of inheritance is a problem both for non-marital children, who want to be included in their father’s estate, and for fathers, who may either wish to include or exclude the child. It should be kept in mind that a parent can either include or exclude any child, marital or non-marital, by leaving a will.

The uncertainty of inheritance can avoided if the father creates a last will and testament that clearly establishes his intentions toward all of his children, whether they were conceived during marriage or not. The will allows any parent to tailor the benefits that will be given (or not given) to each of his or her children and, if necessary, to provide that their inheritance will be managed by a trustee until they reach a certain age.

In short, if you have children, it is critically important for you to have a will.

If you want information concerning your advance planning, contact an experienced New York probate lawyer. William A. Simon has more than 40 years of dedicated legal experience in probate and estate planning matters. You may schedule a confidential consultation by calling (212) 867-1238.