By Linda Toga
THE FACTS: My friend Joe, a New York State resident, was never married, but he and his on-again off-again girlfriend had a son together. The child was 14 months old when Joe died without a will. Before his death, Joe spent most of his free time with his son who lives with the girlfriend in New York. My friend’s parents live in Ohio and did not know about the girlfriend, much less the baby. They were shocked to learn that a baby they did not even know existed was the sole heir to Joe’s estate. They are now insisting on a DNA test.
THE QUESTION: Can Joe’s parents insist that a DNA test be done to prove paternity?
THE ANSWER: Whether or not a DNA test is appropriate will depend on what steps Joe may have taken to establish paternity. If, for example, Joe signed a paternity acknowledgment, the Surrogate’s Court will not order a genetic marker test or DNA test.
Under Public Health Law 4135-B, the father of a child can establish paternity by signing a paternity acknowledgment immediately before or after an in-hospital birth of a child to an unmarried woman. The acknowledgment must be signed by both parents and witnessed by two people who are not related to either parent. The acknowledgment must be filed with the registrar along with the child’s birth certificate.
If neither parent rescinds the acknowledgment within 60 days of signing it, the acknowledgment is deemed conclusive evidence of paternity. While challenges to a paternity acknowledgment based upon fraud or duress can be brought, the burden of proof is very high.
Another way the paternity of a child born out of wedlock can be established is through an Order of Filiation. A proceeding to establish paternity may be brought in Family Court by the mother of the child, a person claiming to be the father, the child or the child’s guardian. Assuming adequate proof is submitted to the court, an order will be issued setting forth the relationship between the father and the child. Just as there is a 60-day period during which the paternity acknowledgment can be rescinded, the court has 60 days in which to vacate an Order of Filiation before it is deemed conclusive evidence of paternity.
If, during Joe’s lifetime, an order of filiation was issued stating that the girlfriend’s son was Joe’s child, Joe’s parents cannot demand a genetic marker or DNA test. If there is no paternity acknowledgment or Order of Filiation, Joe’s parents can insist that proof be presented establishing that Joe is the child’s father. In that case, genetic marker and/or DNA testing would certainly be appropriate.
Other evidence may include proof that Joe was providing child support or that he publicly held himself out as the child’s father. If paternity cannot be established, Joe’s parents are in line to inherit his estate. Such an unfortunate outcome could have easily been avoided if Joe discussed his situation with an experienced estate planning attorney and had a will prepared that expressed his desire to leave his assets to his son.
Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate, estate administration, litigation, wills, trusts, small business services and real estate from her East Setauket office.