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Decedent’s Acknowledgment of Paternity of Nonmarital Child Precluded Objections to Distribution by Sibling

In finding that the decedent’s brother did not have standing to raise objections to the distribution of an estate because the decedent had sufficiently acknowledged paternity of at least one nonmarital child, the Second Department wrote:

…[T]he appellant, in his capacity as a sibling of the decedent, had no standing to raise objections unless he could be considered a distributee of the decedent’s estate. Siblings, who are defined as issue of the decedent’s parents, are only distributees if the decedent dies without issue (see EPTL 4-1.1[a][3]). If the decedent here was survived by any issue, the appellant, in his capacity as a sibling of the decedent, does not have standing as a person interested in the estate (see SCPA 103[39]).

Since the decedent died after April 28, 2010, EPTL 4-1.2, as amended in 2010, is applicable (see L 2010, ch 64). That provision states, among other things, that a nonmarital child may inherit from his or her father and paternal kindred, if paternity was established during the decedent’s lifetime or “paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own” (emphasis added). The affidavits in this case demonstrated that the decedent had at least one nonmarital child whom he openly and notoriously acknowledged as his own. As this Court noted …, “[t]o establish an open and notorious acknowledgment of paternity, there is no requirement that the putative father disclose paternity to all his friends and relatives. An acknowledgment of paternity in the community in which the child lives is sufficient.” Matter of Reape, 2013 NY Slip Op 07048, 2nd Dept 10-30-13

 

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