Bronx County Surrogate Lee Holzman, in a case of first impression, has found that a decedent’s posthumous non-marital son was entitled to posthumous DNA testing to determine his standing as a potential distributee of his late father. This decision on a motion in the Estate of Jermaine Michael Williams was rendered on December 3rd and was also reported in today’s New York Post appears to be the first time a request for posthumous testing was made on behalf of a posthumous child.

Jermaine Michael Williams was a bodyguard of rapper Busta Rhymes who was allegedly murdered  on May 28, 2008 several months before the birth of the alleged posthumous child on September 26 2008. In addition to this child, the decedent was the father of two other non-marital sons of different mothers. His brother is the guardian of the property of the two boys and has objected to the  posthumous child’s inclusion as a distributee.

Previous cases of this nature which involved situations where the decedent’s body would have to have been exhumed which prior appellate courts found to be against public policy. In addition, the legislative intent of the law providing for DNA testing indicates that the test had to have been administered prior to death. Those previous cases where — as in this case– it was not necessary to disinter the body because tissue samples existed following an autopsy required some open acknowledgment by the decedent of his paternity of the child in question. Surrogate Holzman realized that this would be a virtual impossibility in a situation where the decedent never had the opportunity to get to know an as yet unborn child and his decision relieves the movant of proving this otherwise necessary element of the claim. Whether or not that will be upheld should there be an appeal of this decision can certainly not be predicted at this time — but one would surely think that the Surrogate’s findings were logical and totally in step with the times.