Tags Posts tagged with "inheritance"


When a person dies without a will, the law determines who the heirs of the estate are. Stock photo

By Linda M. Toga, Esq.

Linda Toga

THE FACTS: After my mother’s death I was approached by a man I will refer to as Joe who claims that my mother was his biological mother as well. According to Joe, before she and my father married, my mother gave birth to Joe and immediately put him up for adoption. Although Joe admits that my mother rejected his attempts to develop a relationship with her during her lifetime, Joe now claims that since my mother died without a will, he is entitled to a share of my mother’s estate.

THE QUESTION: Is Joe correct? Will my siblings and I have to share our inheritance with him?

THE ANSWER: Fortunately for you, Joe is wrong.

HOW IT WORKS: Generally a child who is adopted out does not have the right to an inheritance from the estate of his birth mother. The order of adoption generally relieves the birth parents of all parental duties and of all responsibilities for the adopted child. At the same time, the order extinguishes all parental rights of the birth parent to the estate of a child who has been adopted, including the right to serve as administrator of that child’s estate and the right to inherit under the intestacy statutes.

Although Joe seems to be relying upon the fact that your mother died without a will and, therefore, did not explicitly disinherit him, his reliance is unwarranted. That is because the New York State intestacy statute and the domestic relations law govern how your mother’s estate should be distributed.

While the child of a decedent is generally entitled to a share of his parent’s estate if the parent dies without a will [Estates, Powers and Trusts Law §4-1.1 (a)(1) and (3)], the rights of an adopted child in the estate of a birth parent are governed by subsection (d) of the statute. It provides that the Domestic Relations Law, specifically Domestic Relations Law §117, controls.

Domestic Relations Law §117 (1)(a) and (b) provide that an order of adoption relieves the birth parent of all parental duties and responsibilities and extinguishes any rights the parent would otherwise have over the adoptive child’s property or estate. At the same time, the order terminates any rights of the adoptive child to an inheritance from the birth parent.

Although there are some exceptions to these laws, the logic behind terminating inheritance rights is to prevent people in Joe’s position from enjoying a windfall by inheriting from both his birth and adoptive parents and to prevent a birth mother from receiving an inheritance from a child that she did not support during her lifetime.

Under the circumstances, the only way Joe could inherit from your mother’s estate would be if she chose to name him as a beneficiary in a will or a trust or on a beneficiary designation form. If Joe decides to pursue a claim against your mother’s estate, you should be able to defeat the claim by providing the court with evidence that Joe was legally adopted as a child.

It would be wise to retain an attorney experienced in estate administration to assist you with this matter.

Linda M. Toga provides personalized service and peace of mind to her clients in the areas of elder law, estate administration and estate planning, real estate, marital agreements and litigation. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

By Linda Toga

The Facts: My father married a woman named Jane after my mother’s death. They were married for 10 years before my father died. In his will, my father left everything except the contents of his house to me and my sister.

The Question: Is it true that Jane is entitled to a larger share of my father’s estate than what he left her in his will?

The Answer: Unfortunately for you and your sister, because she is your father’s surviving spouse, Jane is entitled to more than the contents of the house. Under New York law, spouses cannot disinherit each other. Although your father left something to Jane and did not technically disinherit her, the value of the contents of the house likely make up a very small percentage of the value of your father’s estate.

Assuming Jane wants more than what is left to her in the will, and assuming she did not waive her rights in a pre- or postnuptial agreement, Jane may ask the Surrogate’s Court to award her approximately one-third of the net value of your father’s entire estate, regardless of the terms of his will. If someone is legally married at the time of their death, their spouse can exercise what is called a “right of election.” This means that the surviving spouse can elect to receive a share of the decedent’s estate valued at approximately one-third of all of the assets of the deceased spouse. Under the facts you provided, Jane can elect to receive not only one-third of the net value of your father’s testamentary assets passing under his will (assets that were owned outright by your father in his individual capacity) but also one-third of the net value of your father’s nontestamentary assets.

Such assets are sometimes referred to as testamentary substitutes and include, among other things, gifts made by a decedent in contemplation of death, jointly held real property, accounts in a decedent’s name that were held in trust for another person or designated as transfer on death accounts, assets held in trust for the benefit of another, assets payable under retirement plans, pensions, profit sharing and deferred compensation plans and death benefits under a life insurance policy. Since the assets a decedent owned jointly with others and/or held for the benefit of others are considered when calculating the value of a surviving spouse’s elective share, the beneficiaries under the will are not the only people who may be adversely impacted when a surviving spouse successfully exercises his/her right of election.

This is just one of the reasons an election is often the first step in what can be a contentious and protracted litigation. The right of election is personal to the surviving spouse; but, if the surviving spouse is unable to make the election, a guardian or guardian ad litem appointed by the court to represent the interests of the surviving spouse may make the election on the spouse’s behalf. The surviving spouse must exercise the right of election within six months of the issuance of letters testamentary and in no event later than two years after the decedent’s death.

To prevent the distribution of assets that may ultimately be determined to be part of the elective share payable to the surviving spouse, notice of the election must be served upon all people and entities that are in possession of or have control over the decedent’s assets. The executor administering an estate where the right of election has been exercised may be able to disqualify the person who made the election from receiving the elective share. To do so the executor must prove that the person attempting to collect an elective share was not actually married to the decedent at the time of death.

If there is no question that the person seeking an elective is the surviving spouse, the executor may be able to defeat the election by establishing that the spouse had the means but refused to support the decedent prior to death, that the spouse abandoned the decedent prior to death or that the marriage was void as incestuous or bigamous. Although the outcome of all litigation is uncertain, because of the issues raised in litigation involving the right of election, it can be particularly emotional and disturbing. As such, it is best to consult an attorney with experience in estate litigation and specifically with cases involving a claim for an elective share.

Linda M. Toga, Esq. provides legal services in the areas of estate administration and planning, real estate and litigation from her East Setauket office.