Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, November 3, 2006

Posthumous Paternity Testing & New York Law

Ilene Sherwyn Cooper has recently published her article Posthumous Paternity Testing: A Proposal to Amend EPTL 4-1.2(a)(2)(D), 69 Alb. L. Rev. 947 (2006).

Here is an excerpt:

The rights of children born out of wedlock have been of critical importance to the New York State legislature and judiciary since the early 1900's. Taking guidance from their federal counterparts, each of these branches of government have pursued an active role in enhancing the rights of non-marital children in order to ensure that they are treated in pari materia with children born in wedlock. [***]

Within the area of trusts and estates, the rights of non-marital children have progressed significantly from the days when they were classified as illegitimates and were forced to suffer for the "sinful" acts of their parents. [***]

A common thread running through each of these legal advances for the non-marital class is the requirement that the paternity of the child first be established pursuant to the provisions of section 4-1.2 of the EPTL, commonly referred to by estate practitioners as the "paternity statute." While this threshold burden is understandable, its end-result vis-à-vis New York's aims of promoting parity between non-marital children and their marital counterparts has been disappointing, if not counterproductive.

Most significantly, this is apparent within the context of applications to determine paternity through use of DNA blood testing pursuant to the provisions of section 4-1.2(a)(2)(D) of the EPTL. Based upon antiquated notions relative to the reliability of DNA test results, this section precludes the use of such evidence for purposes of establishing paternity when the testing is performed, or the results are obtained, posthumously. The ill-effects of the statute upon the rights of non-marital children have been dramatic, depriving some of inheritance rights even under circumstances where scientific testing has established paternity within the range of 99.19% to 99.89%. [***]

To rectify this incongruity, and in an effort to advance the rights of non-marital children otherwise accorded under New York law, the Trusts and Estates Law Section of the New York State Bar Association proposed legislation that "would allow posthumous testing of blood and tissue samples to determine paternity."  As originally drafted, the bill specifically referred to the provisions of Article 15 of the Not-for-Profit Corporation Law authorizing exhumations and would have amended that statute to confer jurisdiction upon the Surrogate's Court as well as the county and supreme courts to hear and determine such applications.

This legislation and the history underlying its proposal was the subject of an article by this author written in 1999.  Unfortunately, however, as herein discussed, since its writing six years ago, the proposed bill has made relatively minor progress in the New York State legislature, leaving New York law still unchanged with respect to recognizing posthumous DNA test results as a means of proving paternity, and well behind the nation, and the current views of many of its surrogates, in its perspective. Change is required.


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