New York Estate Planning & Elder Law Blog
As was outlined in the most recent blog posting, if you compare the costs and benefits of creating a will now versus passing away intestate, there is no doubt that the benefit is huge and the cost is small. It is thus high time to explore New York’s intestacy laws in detail. It is important to note that intestacy laws are important not only because they instruct a probate Judge on how the estate must be divided but it also tells the probate Court what is not permitted as well as what is neither required nor prohibited; in other words the parties can agree to certain final dispositions. The specific statute that defines intestacy and the outlines the specific requirements that a Court must adhere to is found at New York Estates, Powers and Trusts Law (EPTL) Section 4-1.1.
Family Law and intestacy laws are one of the few areas of the law that recognizes and codifies a different treatment of the sexes, insofar EPTL Section 4-1.2 requires that a child conceived outside of marriage (so called and grossly titled “illegitimate” children) must have an acknowledgement of paternity by their father or a finding by a Court that the children in issue are indeed the children of the deceased man before those children can inherit as a child of the deceased. Not so with mothers, since, except in the case of children mistakenly switched following birth, there is no doubt that children are the issue of their mother.
The technical legal term when a person passes intestate is that their estate is administered and a person who passes with a will, called testate, has their will probated. Within the universe of individuals who are material to the probate Court are children, spouses and siblings. Adopted children at treated the same as biological children although unadopted stepchildren are not considered children as far as the intestacy law is concerned. New York has adoption proceedings and recognizes adult adoptions to legally redefine this relationship. Divorced spouses are immaterial, although separated spouse are still considered spouses as far as the law is concerned.
New York does not recognize common law marriages except those when the marriage was/is recognized in a sister state. If a person has neither children nor a spouse, his/her siblings are the default parties to inherit. In this regards the law does not recognize any difference between a half and full blood sibling. The law grants each one of these parties standing to contest a will and distribute the estate via the state’s intestacy laws. Of course they need a proper factual basis to invalidate a will to proceed.
As noted in the most recent blog, the specific outline of the distribution depends on whether or not the deceased was married or had children. Things get a little more confusing if and when a deceased has grandchildren but their parent passed away prior to or predeceased the grandparent. The same share that the predeceased child would have received passes to his/her children and is equally divided amongst them, rather than treating the grandchildren as an individual to receive their own share of the inheritance as some states mandate.