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socrateaser
socrateaser, Attorney
Category: Estate Law
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I just found out my father in New York died 2 months ago. I

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I just found out my father in New York died 2 months ago. I was born and raised in Canada. I am a illigitimate child. He never acknowledged me legally and barely in my life. Never supported me. What are my legal rights?
Hello,

The law of the State of NY is as follows (Matter of Poldrugovaz, 50 AD 3d 117 (NY App. 2nd 2008)):

  • In a proceeding brought by a nonmarital child to establish inheritance rights pursuant to EPTL 4-1.2 (a) (2) (C), what standard of proof is to be applied to a pretrial request for posthumous genetic marker testing? Today we hold that a court may grant a pretrial motion for posthumous genetic marker testing when the applicant provides some evidence that the decedent openly and notoriously acknowledged the nonmarital child as his own, and establishes that genetic marker testing is reasonable and practicable under the totality of the circumstances. However, our holding should not be interpreted as altering the statutory standard of proof essential to the standing of a nonmarital child to assert inheritance rights under EPTL 4-1.2 (a) (2) (C), to wit: clear and convincing evidence of paternity together with proof that the alleged father openly and notoriously acknowledged the child as his own (L 1981, ch 75, § 1).

 

In plain English, you would need clear evidence, in a document or via credible witnesses, that your father acknowledged you as his child during your father's lifetime. If you can get the evidence, then the court can order a DNA test (assuming that your father's remains were not cremated).

 

The above represents the only way to prove you have any rights to your father's estate. The legal expenses related to the petition to the NY Surrogate's Court would be costly. You could expect to pay at least $5,000 to get the DNA order, and perhaps another $5,000 to actually exhume your father's remains, obtain the test information and deliver it to the court for judgment.

 

Consequently, unless the estate is large, there is little point in pursuing the matter. If the estate is large, and if you would like a link to a competent lawyer referral service, please let me know and I will be happy to provide.

 

And, if you need further clarification or assistance please let me know that, too.

 

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