The Fourth Department of New York’s Appellate Division has expanded the rights of nonmarital children to inherit. In the Matter of Uhl,628 a Surrogate’s Court had earlier determined that Lora Elkins and Sally Himelsbach were not entitled to inherit a portion of their cousin’s estate after she died intestate in 2003 leaving six cousins. The lower court found that four of the decedent’s cousins on the decedent’s father’s side were able to establish their rights as distributees but that Ms. Elkins and Ms. Himelsbach were ineligible to do so because they had been unable to prove their parents had been married at the time of their births.
Under existing law at the time their father died in 1953, the sisters would have been precluded from inheriting from their father or his "kindred". Their father was the decedent’s maternal grandfather, thereby placing them as cousins on the decedent’s mother’s side .
The court first cited a 1981 liberalization of the law which enables nonmarital children to inherit from and through their fathers where paternity was "openly and notoriously" acknowledged, which was found to be the case here. What the Applellate Division did here was to determine that the operative date for the claim of the two maternal cousins was the date on which their cousin died (2003) and not the date their father died. Therefore, they were found to be able to benefit from the 1981 liberalization of the law occurring nearly thirty years after their father’s death. The court also found it significant that they were seeking to inherit from their cousin and not from their father. As result, the two women will share one-half of the estate with their four paternal cousins sharing the other half.
Please take note that this decision –which will be published in the New York Law Journal on Monday July 17, is at odds with a similar matter (Matter of Malavase, 133 AD2d, 759) decided in the Second Department of the Appellate division. While it may ultimately require an appeal to the Court of Appeals to reconcile these two positions, the Uhl estate was apparently not very large so it is problematic as to whether or not such an appeal will ultimately be taken.