The Will and the After-Discovered Child

Biology being what it is, it has never been all that unusual for men to father children and never learn of it. So long as the mother of a child did not pursue financial help or press for contact between the father and child, many men went to their graves not knowing they had offspring.

The same scenario plays itself out today as well, but changes in our society mean that children are searching for their biological fathers with increasing frequency. Aided by social media and online records ' as well as by mothers and others who are more willing to reveal the details of parentage now that the social stigma of illegitimacy has faded ' more of these offspring are successfully finding their lost parent.

Since adult children are not statutorily entitled to support from their parents, the primary legal question to be answered when a parent residing in New York learns of the existence of a previously unknown child is, “What rights, if any, do such offspring have in their parent's estate?”

Under New York Law, No Duties

Over the course of the last century, New York's legislature has attempted to address the problems created when parents fail to leave any portion of their estates to their dependent children. To date, little progress has been made in this regard, and parents in the State of New York still have no duty to leave any part of their estates to their children, whether they are financially dependent or not. McLean v. McLean, 207 N.Y. 365 (1913) (“it has never been held or assumed, in this state at least, that it was the intention of the legislature by [the statute providing for implied inclusion in a parent's will for after-born children] to compel, regulate or control testamentary provision even by a parent for children ' “). A parent who executes a will may disinherit his or her children, whether they are financially dependent on the parent or not. All that is required is some clear indication in the instrument that the un'provided-for child was intentionally left nothing.

If a parent dies without a will, his or her children will take an intestate share, as set out in New York's Estates, Powers, and Trusts Law (EPTL) ' 4-1.1. Section ' 4-1.1 provides that if a parent dies without a will and a spouse also survives, that spouse takes $50,000 plus half the remainder of the estate, with the children splitting the rest, by representation. If a parent dies intestate and there is no surviving spouse, his or her children take the whole estate in equal shares, by representation.

If a parent wills all or a portion of his or her estate to his or her named offspring, any unnamed children will generally be entitled to claim nothing. However, New York's legislature created an exception to this rule when it enacted EPTL ' 5-3.2, after it became apparent that some children were inadvertently taking nothing from their parents' estates because they were born after their parents' wills were executed. Section 5-3.2 has several provisions concerning the inheritance of after-born children, the gist of most of which is that the after-born child will take a share of that which was to go to the children who were discussed in the will. As explained in the statute, “To the extent that it is feasible, the interest of the after-born child in the testator's estate shall be of the same character, whether an equitable or legal life estate or in fee, as the interest which the testator conferred upon his children under the will.” EPTL ' 5-3.2 (a)(1)(B)(iv). This exception expresses the legislature's willingness to protect those unintentionally cut off from their parents' estates, while preserving a parent's right to disinherit a child intentionally.

The Late-Discovered Child

What happens, then, when a father (or conceivably, in far fewer cases, a mother) finds out soon before his death that he has one or more children that he did not know of previously? If he has already made a will disposing of his property and does not change it subsequent to the discovery that he has additional children, are these newcomers entitled to be treated like after-born children? That was the question posed in Matter of Gilmore, 2010-01270, NYLJ 1202498019924, at *1 (App. Div., 2nd, Decided June 14, 2011).

The case concerned the will of Roy Gilmore, a man who executed his last will in 1996. Approximately 10 years later, he underwent DNA testing to see if he was the father of two adult children, Andrea Hofler and Malverick Hofler. The tests showed that he was indeed their father. Soon afterward, on Jan. 13, 2007, Roy Gilmore died, never having executed a new will. Angela Manning, another of Gilmore's daughters who was mentioned in the will and had been named executrix of the estate, offered the will for probate.

On Feb. 11, 2008, the Hoflers moved the Surrogate's Court to treat them as after-born children, in accordance with EPTL ' 5-3.2. That motion was denied, leading to an appeal to the Appellate Division, Second Department.

On appeal, the movants cited to Bourne v. Dorney (184 App Div 476, affd 227 NY 641), the 100-plus-year-old case establishing that children adopted after the execution of a will, though born before it was made, will be treated as after-born children when a will leaves them out. In accordance with Bourne, in the eyes of the estate law of the State of New York, an adopted child is considered to be “born” of the testator at the time of the adoption, and is therefore eligible to inherit from the testator despite not having been named in the will. See Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 17B, EPTL 5-3.2 at 278.

The Hoflers also pointed to dicta in the case of In the Matter of Walsh (NYLJ, May 13, 1998, at 31, col 6). In Walsh, a non-marital daughter had asked to be treated as an after-born child pursuant to EPTL 5-3.2, even though her father's will was executed 20 years after her birth. The Surrogate's Court, noting that the case was one of first impression, concluded that the fact that a person has proven that she is a non-marital child pursuant to EPTL ' 4-1.2 does not establish her right to be treated as an after-born child for the purposes of EPTL ' 5-3.2. The court then stated that while the legislative intent of EPTL 5-3.2 and 4-1.2 “might allow a non-marital child born and acknowledged as the child of decedent after the execution of a will to be treated as an after born child,” in the case before it the petitioner “was born before decedent's 1984 will was executed and she alleges that he was aware that he was her father prior to the will's execution.” Presumably then, as the father knew he had an out-of-wedlock daughter before he signed his will, he could have included her, yet chose not to. However, the Surrogate's Court went on to say in Walsh that “had petitioner been born after the execution of dec[e]dent's 1984 will, or perhaps even if dec[e]dent was unaware of petitioner's existence until after the execution of the will, she may have had a valid claim under Sec. 5-3.2 and Sec. 4-1.2″ (emphasis added). It was this language that the Hoflers pointed to in Gilmore as an indication that they should be treated as after-born children. As stated by the Second Department, “The movants concede that they are not, strictly speaking, 'after-born' children as defined in EPTL 5-3.2, but they argue that because they were not known to the decedent, they are 'after-knowns' and should be treated in the same manner as adopted children.”

The appellate court rejected the Hoflers' motion, primarily based on a review of the legislative history of EPTL ' 5-3.2 and amendments to it. For example, ' 5-3.2 was amended in 2006, several years after the Walsh decision was handed down. That amendment (L 2006, ch 249) provided that the definition of “after-born child” includes only a child born during the decedent's lifetime or at the time of his or her death. (The memorandum in support of that amendment (see Senate Mem in Support of L 2006, ch 249) explained that the legislature wanted to promote finality in the distribution of estates by precluding the later claims of children born after the death of a decedent through advanced scientific means, such as artificial insemination with preserved sperm.) By contrast, the legislature had not acted to change ' 5-3.2 to include after-found children, as some other states' legislatures have done. Looking at this and at other evidence of legislative intent, the court found “no indication that the Legislature intended that nonmarital children, born prior to the execution of a will, are to be considered after-born children pursuant to EPTL 5-3.2 and, thus, are entitled to succeed to a portion of a testator's estate. A contrary holding would promote uncertainty in identifying persons interested in an estate and finality in its distribution, which are critical to the public interest in the orderly administration of estates.”

Something to Think About

The Gilmore court went one step further by finding that a person's failure to include in a will any mention of unknown children signals an intent to disinherit them. As the court explained, “There is a significant difference between adopted children and so-called after-known children. Adopted children do not become the children of a person until after the adoption. On the other hand, after-known children are children of a person at the time of their birth. Further, by adopting a child, a parent makes an affirmative decision to incur legal obligations that are triggered by an adoption. By contrast, a child's birth prior to the execution of a will, and a testator's subsequent discovery of said child, involves no affirmative act. Here, the decedent's conduct prior to the execution of his will included activities which could have, and ostensibly did, result in the birth of nonmarital children. Thereafter, he executed a will which made no disposition to any unknown children that he may have fathered. This failure to address any potential offspring can be considered as an intent to preclude succession to the same.”

This conclusion seems a bit extreme. By attributing to the testator a conscious intent to disinherit children whose existence he (or she) is not aware of presumes more thought on the subject than most people will ever give it. And, as a practical matter, how would one provide for unknown children in a will? By putting a statement in the instrument to the effect that any unknown children who surface during the lifetime of the decedent should be included in the distribution? It is easy to imagine that many people would find such a statement to be embarrassing at the very least, or, more crucially, a danger to their current parental and marital relationships.

Conclusion

The ultimate lesson to take from the Gilmore case is that anyone who discovers a previously unknown child after executing a will should be encouraged to alter that will if he or she wishes to provide for that child upon death. Failure to act will result in disinheritance.

Janice G. Inman is Editor-in-Chief of this newsletter.

Biology being what it is, it has never been all that unusual for men to father children and never learn of it. So long as the mother of a child did not pursue financial help or press for contact between the father and child, many men went to their graves not knowing they had offspring.

The same scenario plays itself out today as well, but changes in our society mean that children are searching for their biological fathers with increasing frequency. Aided by social media and online records ' as well as by mothers and others who are more willing to reveal the details of parentage now that the social stigma of illegitimacy has faded ' more of these offspring are successfully finding their lost parent.

Since adult children are not statutorily entitled to support from their parents, the primary legal question to be answered when a parent residing in New York learns of the existence of a previously unknown child is, “What rights, if any, do such offspring have in their parent's estate?”

Under New York Law, No Duties

Over the course of the last century, New York's legislature has attempted to address the problems created when parents fail to leave any portion of their estates to their dependent children. To date, little progress has been made in this regard, and parents in the State of New York still have no duty to leave any part of their estates to their children, whether they are financially dependent or not. McLean v. McLean , 207 N.Y. 365 (1913) (“it has never been held or assumed, in this state at least, that it was the intention of the legislature by [the statute providing for implied inclusion in a parent's will for after-born children] to compel, regulate or control testamentary provision even by a parent for children ' “). A parent who executes a will may disinherit his or her children, whether they are financially dependent on the parent or not. All that is required is some clear indication in the instrument that the un'provided-for child was intentionally left nothing.

If a parent dies without a will, his or her children will take an intestate share, as set out in New York's Estates, Powers, and Trusts Law (EPTL) ' 4-1.1. Section ' 4-1.1 provides that if a parent dies without a will and a spouse also survives, that spouse takes $50,000 plus half the remainder of the estate, with the children splitting the rest, by representation. If a parent dies intestate and there is no surviving spouse, his or her children take the whole estate in equal shares, by representation.

If a parent wills all or a portion of his or her estate to his or her named offspring, any unnamed children will generally be entitled to claim nothing. However, New York's legislature created an exception to this rule when it enacted EPTL ' 5-3.2, after it became apparent that some children were inadvertently taking nothing from their parents' estates because they were born after their parents' wills were executed. Section 5-3.2 has several provisions concerning the inheritance of after-born children, the gist of most of which is that the after-born child will take a share of that which was to go to the children who were discussed in the will. As explained in the statute, “To the extent that it is feasible, the interest of the after-born child in the testator's estate shall be of the same character, whether an equitable or legal life estate or in fee, as the interest which the testator conferred upon his children under the will.” EPTL ' 5-3.2 (a)(1)(B)(iv). This exception expresses the legislature's willingness to protect those unintentionally cut off from their parents' estates, while preserving a parent's right to disinherit a child intentionally.

The Late-Discovered Child

What happens, then, when a father (or conceivably, in far fewer cases, a mother) finds out soon before his death that he has one or more children that he did not know of previously? If he has already made a will disposing of his property and does not change it subsequent to the discovery that he has additional children, are these newcomers entitled to be treated like after-born children? That was the question posed in Matter of Gilmore, 2010-01270, NYLJ 1202498019924, at *1 (App. Div., 2nd, Decided June 14, 2011).

The case concerned the will of Roy Gilmore, a man who executed his last will in 1996. Approximately 10 years later, he underwent DNA testing to see if he was the father of two adult children, Andrea Hofler and Malverick Hofler. The tests showed that he was indeed their father. Soon afterward, on Jan. 13, 2007, Roy Gilmore died, never having executed a new will. Angela Manning, another of Gilmore's daughters who was mentioned in the will and had been named executrix of the estate, offered the will for probate.

On Feb. 11, 2008, the Hoflers moved the Surrogate's Court to treat them as after-born children, in accordance with EPTL ' 5-3.2. That motion was denied, leading to an appeal to the Appellate Division, Second Department.

On appeal, the movants cited to Bourne v. Dorney (184 App Div 476, affd 227 NY 641), the 100-plus-year-old case establishing that children adopted after the execution of a will, though born before it was made, will be treated as after-born children when a will leaves them out. In accordance with Bourne, in the eyes of the estate law of the State of New York, an adopted child is considered to be “born” of the testator at the time of the adoption, and is therefore eligible to inherit from the testator despite not having been named in the will. See Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 17B, EPTL 5-3.2 at 278.

The Hoflers also pointed to dicta in the case of In the Matter of Walsh (NYLJ, May 13, 1998, at 31, col 6). In Walsh, a non-marital daughter had asked to be treated as an after-born child pursuant to EPTL 5-3.2, even though her father's will was executed 20 years after her birth. The Surrogate's Court, noting that the case was one of first impression, concluded that the fact that a person has proven that she is a non-marital child pursuant to EPTL ' 4-1.2 does not establish her right to be treated as an after-born child for the purposes of EPTL ' 5-3.2. The court then stated that while the legislative intent of EPTL 5-3.2 and 4-1.2 “might allow a non-marital child born and acknowledged as the child of decedent after the execution of a will to be treated as an after born child,” in the case before it the petitioner “was born before decedent's 1984 will was executed and she alleges that he was aware that he was her father prior to the will's execution.” Presumably then, as the father knew he had an out-of-wedlock daughter before he signed his will, he could have included her, yet chose not to. However, the Surrogate's Court went on to say in Walsh that “had petitioner been born after the execution of dec[e]dent's 1984 will, or perhaps even if dec[e]dent was unaware of petitioner's existence until after the execution of the will, she may have had a valid claim under Sec. 5-3.2 and Sec. 4-1.2″ (emphasis added). It was this language that the Hoflers pointed to in Gilmore as an indication that they should be treated as after-born children. As stated by the Second Department, “The movants concede that they are not, strictly speaking, 'after-born' children as defined in EPTL 5-3.2, but they argue that because they were not known to the decedent, they are 'after-knowns' and should be treated in the same manner as adopted children.”

The appellate court rejected the Hoflers' motion, primarily based on a review of the legislative history of EPTL ' 5-3.2 and amendments to it. For example, ' 5-3.2 was amended in 2006, several years after the Walsh decision was handed down. That amendment (L 2006, ch 249) provided that the definition of “after-born child” includes only a child born during the decedent's lifetime or at the time of his or her death. (The memorandum in support of that amendment (see Senate Mem in Support of L 2006, ch 249) explained that the legislature wanted to promote finality in the distribution of estates by precluding the later claims of children born after the death of a decedent through advanced scientific means, such as artificial insemination with preserved sperm.) By contrast, the legislature had not acted to change ' 5-3.2 to include after-found children, as some other states' legislatures have done. Looking at this and at other evidence of legislative intent, the court found “no indication that the Legislature intended that nonmarital children, born prior to the execution of a will, are to be considered after-born children pursuant to EPTL 5-3.2 and, thus, are entitled to succeed to a portion of a testator's estate. A contrary holding would promote uncertainty in identifying persons interested in an estate and finality in its distribution, which are critical to the public interest in the orderly administration of estates.”

Something to Think About

The Gilmore court went one step further by finding that a person's failure to include in a will any mention of unknown children signals an intent to disinherit them. As the court explained, “There is a significant difference between adopted children and so-called after-known children. Adopted children do not become the children of a person until after the adoption. On the other hand, after-known children are children of a person at the time of their birth. Further, by adopting a child, a parent makes an affirmative decision to incur legal obligations that are triggered by an adoption. By contrast, a child's birth prior to the execution of a will, and a testator's subsequent discovery of said child, involves no affirmative act. Here, the decedent's conduct prior to the execution of his will included activities which could have, and ostensibly did, result in the birth of nonmarital children. Thereafter, he executed a will which made no disposition to any unknown children that he may have fathered. This failure to address any potential offspring can be considered as an intent to preclude succession to the same.”

This conclusion seems a bit extreme. By attributing to the testator a conscious intent to disinherit children whose existence he (or she) is not aware of presumes more thought on the subject than most people will ever give it. And, as a practical matter, how would one provide for unknown children in a will? By putting a statement in the instrument to the effect that any unknown children who surface during the lifetime of the decedent should be included in the distribution? It is easy to imagine that many people would find such a statement to be embarrassing at the very least, or, more crucially, a danger to their current parental and marital relationships.

Conclusion

The ultimate lesson to take from the Gilmore case is that anyone who discovers a previously unknown child after executing a will should be encouraged to alter that will if he or she wishes to provide for that child upon death. Failure to act will result in disinheritance.

Janice G. Inman is Editor-in-Chief of this newsletter.