New York Estate Planning & Elder Law Blog
In the United States, the inheritance rights of children with unmarried parents are virtually the same as those of children with married parents.
New York estate law allows trust holders to leave property to anyone named in a will, trust, or other joint estate or investment device. Where there is no will or trust naming heirs or beneficiaries, however, estate distribution of assets is left up to the courts. For children of unmarried parents, this latter scenario can lead to lengthy probate litigation. Unmarried parents who have not affirmatively left property in a will, or distributed it in a trust, run the risk of leaving their children a serious legal mess.
The “Illegitimate” Child in Estate Law
Rules of intestacy apply to “no will” probate matters in New York. Although children of unmarried parents qualify for consideration, they are not automatically assigned full rights to the assets of a decedent at time of death as children of married parents who had since passed.
Therefore, the legal category of the “illegitimate” child is without full rights to an estate with no will. Some states delineate between inheritance from the mother and the father in absence of a will or trust. A child of unmarried parents is often found to be the rightful inheritor of a mother’s trust with no will, but not to the estate of an unmarried father.
The statute of limitations can also interfere with the child petitioning for rights to a father’s estate depending on the state jurisdiction where the decedent’s estate is held. Written proof of a father’s admission to paternity before death is normally considered to be adequate basis for protection of a child’s inheritance rights (Trimble v. Gordon, Supreme Court 430 U.S. 762 (1977)).
Rights to Public and Private Benefits
A biological or legal child of an unmarried couple may be entitled to public and private benefits. A parent’s income from public sources such as Social Security, or other federal, state, military or pension benefits, and private sources such as a private life insurance policy providing benefits, may all be considered by the courts in a probate case. This can be especially important if probate proceedings evidence that the child was at any time the decedent’s “caretaker.”
Probate court treatment of children differently on basis of the marital status of the parents is unconstitutional. The U.S. Supreme Court deemed that the “legitimate” or “illegitimate” status of a child is not relevant to entitlements as a beneficiary of Social Security and other government benefits. Children of unmarried couples are also protected where private benefits are concerned in most instances. Naming beneficiaries is the key to ensuring a child’s life insurance benefits, regardless if the parents are married or not.
Contact an Estate Law Attorney
Children of unmarried parents have a constitutional right to their inheritance. Without adequate basis for rights to inheritance, probate court can escheat a deceased parent’s property to state coffers. Parents failing to sign a written paternity statement may interfere
with their child’s right as a beneficiary of Social Security or other government, or private benefits. An attorney at law experienced in estate law can advise a client of the rules to inheritance.
Ettinger Law Firm is a licensed attorney practice in New York providing estate planning consultation and probate litigation services. Contact Ettinger Law Firm in New York for representation in a probate matter.
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