When Is a Child an Heir under New York Law?

In days gone by, legitimate heirs were the product of a legitimate marriage.   Any child born of a legitimate wife was considered to be the heir of her husband.  Hence, a woman's virginity prior to marriage was a necessary precondition of the propertied classes, as was her fidelity during marriage.  Adultery by the wife was a crime against property for it chanced to produce an heir who was not the issue of her spouse, thereby depriving the legitimate heirs of a portion of their birthright.    Of course, a man could sow his "seed" far and wide and, unless he recognized the child as his own, the illegitimate child would never inherit from the father.  

But family construction is much more fluid these days, and the laws of New York have sought to respond to these changes.  The legal standard remains the best interest of the child, and the laws seek to protect the child's welfare.  Let us look at a few of the more common scenarios where establishing legal paternity means that the child will also inherit from his/her father in intestacy.

A.  Child Born of an Unwed Mother

While our society and our laws no longer impose the stigma of illegitimacy or bastardy on an innocent child, the laws governing intestacy in New York nonetheless provide the parameters for defining who is a legitimate heir.  This is necessary to protect the rights of succession of legally-recognized descendants and to arrange for the orderly transfer of property. 

Until 1997,  no formal acknowledgment was required by the father for the mother to list his name as the child's father.   But because paternity brings with it a host of legal and financial obligations, New York State's Public Health Law §4135 now requires that the father fill out and sign a form formally acknowledging legal paternity of the child.   The law was passed to prevent fraud.

A putative father can also petition the court for an order of filiation to establish paternity.  The court may order DNA testing in order to establish filiation.  Putative fathers are also encouraged to register with the New York State Putative Father Registry (a non-public registry) so that they can be notified should the child, for example, be put up for adoption.

With an acknowledgment of paternity, the child is vested with certain rights, including inheritance rights, rights to support until age 21 or emancipation, Social Security survivor benefits, among others.  The father

also gains support obligations and rights such as the right to refuse adoption or foster care of the child, the right to consent to medical treatment for the child, and the rights of shared custody and visitation, among others.

It is worth noting here that if the putative father is under the age of 18, he does not have the legal capacity to establish paternity in this way (or in court) without legal representation.  As a minor he cannot enter into a legally binding contract.  The contract is voidable.  However, upon reaching majority the putative father can expressly ratify the contract, and the ratification brings with it all of the rights and obligations of paternity.

B. Adopted Child

Adoption was uncommon prior to the 19th century, and today remains the province of each state to govern. In New York, adopted in children may inherit from their adoptive parents but not from their biological parents, unless the biological parent specifically names the adopted out child as a beneficiary in a duly executed Will. The law also permits step-parent adoption and second parent adoption in cases of same-sex couples. Where a child has been conceived through surrogacy, a practice not permitted in New York, then the non-biological parent(s) must petition the court for paternity in the case of the father and for adoption in the case of the second  mother.

C. A Child Born of a Marriage but Where the Father is not the Wife's Husband

Because a child born of a legal marriage is presumptively the husband's child, this raises special concerns for both the husband and the biological father.  As we discuss these scenarios, it is important to remember that the best interests of the child remains the legal standard.

Should the biological father wish to be declared the legal father of the child, then either the mother or the alleged father can petition the Family Court.  The petition will state that the child was not a product of the marriage, that the mother is married but not to the alleged father, and that the mother and the alleged father had sexual relations during which time the child was allegedly conceived.  The alleged father may also provide an affidavit stating these same facts and admitting paternity. 

If the non-biological father does not wish to block the challenge to paternity, then he may provide an affidavit of "no access"  in which he will swear that he had no sexual relations with his wife during the time period when the child could have been conceived.   The legal presumption for the time of conception is between 266 and 299 days from the beginning of the mother's last menstrual period.

It is worth noting that New York public policy limits third party challenges to paternity of a child born in wedlock.  Thus  the husband has the right to block this petition if he wishes to raise the child as his own.  The court has the right to deny DNA testing if in the court's opinion this would not be in the best interest of the child, especially if the child is no longer an infant and has been part of the family unit for some time. 

The legal principle of equitable estoppel may also prevent a husband or wife from challenging paternity several years after the birth.  Thus is particularly true where the non-biological father has established himself in the role of the father, where both husband and wife have held out the non-biological father as the father of the child, and where the child has relied upon these representations of paternity.

Conclusion

Because of the importance of establishing and clarifying filiation, it is important that parents take the necessary steps to ensure that their child is properly filiated so that his/her inheritance rights are secure.

If you would like to discuss your own personal situation with me, or how a revocable living trust for your digital assets can be tailored to your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.

Estate Planning for Your Digital Assets, Part 2: Using A Revocable Living Trust

When it comes to planning for digital assets, most people figure that when they die their digital assets (user names, passwords, profiles, etc) die with them.  But the sad truths are these:  many of us will lose our mental capacity to age or illness before we lose our lives; and when we lose either our mental capacity or our lives, our digital assets are left behind unattended.  In this digital age, we need to think about appointing a successor trustee to care for our digital assets so as to prevent identity theft and fraud.

What digital assets do most people have?  Here is a partial list of the most popular:

• email accounts(s)
• online banking access
• online credit card access, including the scheduling of recurring payments
• online password to access your retirement accounts that allow you to change your asset allocation and your distribution schedule
• online photos on sites like Flickr
• online password to reach your investment accounts, including setting up recurring investments, or choosing between a dividend payout or dividend reinvestment
• an online business
• accounts on online auction sites
•  a PayPal account
• a personal or business website, or both
• a blog or other social media site.

Because Wills are public documents, you may not want to include a list of your digital assets as part of your Will.  In any case, a Will is an end-of-life document.  Many of us -- and our families -- will have to deal with mental incapacity long before we die.  So we need a strategy that takes into account this growing reality.

One strategy is to include a list of your digital assets as part of a revocable living trust.  In contrast to a Will, a revocable living trust is a private document.  While you are alive and in possession of your faculties, you maintain control of your digital assets and you are free to update your list with additions and deletions.  As part of your living trust, you can include instructions for your successor trustee as to the disposition of each of your digital assets.    Perhaps you will want your business email to be available to your business partner or successor to ensure a smooth transition.  Perhaps you want your online photo albums to be given to your children or grandchildren to preserve the family legacy.

At the time of your death or mental incapacity, your revocable living trust becomes irrevocable, meaning that no changes can be made to the trust "corpus," or contents, at that point.  Your successor trustee then executes the plan outlined in the trust for the disposition of your digital assets as part of your living trust. 

If you would like to discuss your own personal situation with me, or how a revocable living trust for your digital assets can be tailored to your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.

Death and Passwords: Estate Planning for Your Digital Assets, Part 1

If you are reading this, it is because you have Internet access. With Internet access comes a host of services, including online banking, online businesses, and online access to pension savings and other investments.  All of these services require you to create a user name and a password.  Many have challenge questions as well.  What is your plan for these digital assets if you should become incapacitated or die?

With the exception of Oklahoma, state laws that control the disposition of your estate have not been enacted to keep up with this massive societal change in the way we transact our financial lives. For instance, if a family member has given you a power of attorney over their financial affairs, a bank will work with you with respect to their non-virtual accounts. But if that family member schedules payments and transactions through their online account, the power of attorney may be ineffective to gain access to that online account. You must have at least the password.

But you or your family members may not want to give out passwords to online banking or investment accounts. The possibilities for fraud or mismanagement are large. In addition, many people do not want to reveal the full extent of their financial lives. Access to passwords provide that full view.

On the other hand, there are good reasons to give access to passwords to these trusted sites. Mental incapacity due to illness can rob the individual of the ability to manage their online financial life. At the same time, mental incapacity prevents a person from legally drafting a Will or trust. Thus, estate planning for our digital assets becomes a priority for anyone with anyone who manages their financial life online.

Even if you have a Will, you probably did not make provisions in this document for your digital life. In any case, a Will is not the proper place to list your passwords. If you include your passwords as part of your Will, a probated Will is a public document, exposing your digital assets to prying eyes. These user names, passwords, challenge questions, and other online account identifiers are best protected in a digital assets trust. Trusts, in contrast to Wills, are private documents and a safe way of communicating your online passwords to your trusted family members and advisers.

So who is a candidate for digital asset estate planning? If you can answer "yes" to any of the following questions, then you need an estate plan for your digital assets.

-- Do you do online banking?

-- Do you regularly schedule payments through your online banking accounts?

-- Do you use an online password to access your retirement accounts?

-- Do you use an online password to reach your investment accounts?

-- Do you have an online business?

-- Do you sell items on eBay or other online auction sites?

-- Do you have a PayPal account?

-- Do you have a business website?

-- Do you have a blog or other social media site associated with your business?

In the next part of this series, we will look at why a digital asset trust may be a good solution for your estate planning needs.

If you would like to discuss your own personal situation with me, or how a digital assets estate plan can be tailored to your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.