Relates to establishing inheritance by a non-marital child; repealer

This measure would clarify the way a non-marital child can establish status to inherit from his or her father under section 4-1.2 of the EPTL. The measure would resolve a split in the appellate courts, which was remedied, in part, by a recent decision of the Appellate Division, Second Department. Matter of Poldrugovaz, 50 AD 3d 117 (2d Dept 2008). The measure also would settle decisional law by establishing two differ- ent methods of proof, both using the same clear and convincing evidence standard.

Under section 4-1.2(a)(2) a non-marital child may inherit from his or her father (or the father's side of the family) only if paternity is established in one of the following four ways:(i) an order of filiation (clause (A)); (ii) an acknowledgment signed by the father and filed with the putative father registry (clause (B)); (iii) by clear and convincing evidence that the father has openly and notoriously acknowledged the child as his own (clause (C)); or (iv) a blood genetic marker test, which had been administered to the father together with other evidence (clause (0)). The law has been amended over the years to parallel socie- ty's acceptance of the inheritance rights of non-marital children and to reflect recent advancements in science whereby paternity may be estab- lished by genetic marker testing.

Since 1993, use of genetic marker tests (DNA) to establish paternity has been discussed in many decisions. The issue initially involved the restriction contained in clause (D) that such a blood test had to be performed during the father's lifetime. In the leading case, Matter of Janis (157 Misc 2d 999 (NY Co. 1993), aff'd210 AD2d 620 (1st Dept 1994)), the court analyzed the history of section 4-1.2(a)(2)(0) and held that a blood genetic marker test (DNA) was admissible only if it were performed before death (see also Matter of Sekanic, 229 AD2d 76 (3rd Dept 1997); Matter of DeLuca, NYLJ, January 15, 1998, at 37, col 2; Matter of Johnson, NYLJ, October 15, 1997, at 37, col 2). After Janis, however, two courts extended use of DNA testing to the father's rela- tives where such persons sought, or contested, a determination of pater- nity (Matter of Sandler, 160 Mise 2d 955 (NY Co. 1994) and Matter of Nasert, 192 Misc 2d 682 (Richmond Co. 2002)).

The court in Janis observed "that, notwithstanding this interpretation of 'clause D', post-death genetic marker tests might be admissible under clause (C) of EPTL 4-1.2(a)(2), which allows paternity to be established by clear and convincing evidence...." The prescience of the Jams court became apparent in several subsequent decisions where genetic marker

testing (of all types of samples from a decedent's body) was authorized under clause (C) (see Matter of Morningstar, infra; Matter of Poldrugo- vaz, NYLJ, 10/27/05, at 31, col 3 (Suffolk CO. 2005); Matter of Santos, 196 Misc 2d 972 (Kings Co. 2003); Matter of Bonanno, 192 Misc 2d 86 (NY Co. 2002) (Petitioner sought to disprove paternity); Matter of Thayer, 1 Misc 3d 791 (Madison CO. 2003) (where the father died before the child was born)).

Many of the courts permitting a post-death genetic marker test to be admitted as evidence under clause (C) concluded that the scientific reliability of DNA testing met the standard for clear and convincing proof of paternity. Furthermore, Santos, supra, suggested that where the results of the DNA test are conclusive (one way or the other) no other evidence should be required.

As noted, EPTL 4-1.2(a)(2)(C) had been construed as having a two-prong test, namely, "clear and convincing evidence of paternity" and "open and notorious acknowledgment by the father." But whether this latter prong had to be established before a court could admit the results of a genet- ic marker test initially resulted in a split between two appellate departments. The Fourth Department, in Matter of Morningstar (17 AD3d 1060 (4th Dept 2005)), held that a party seeking to prove paternity under clause (C) based upon a genetic marker test need not first estab- lish "open and notorious acknowledgment" before seeking to admit such proof into evidence. The Second Department, in Matter of Davis, 27 . AD3d 124 (2nd Dept 2006)), held that proof of the father's "open and notorious acknowledgment" of the child must be shown before another party could be directed to submit to genetic marker testing.

Recently, the Second Department, in Matter of Poldrugovaz, supra, departed from Davis, holding that a court may use the results of a posthumous genetic marker test under clause (C) provided there is some evidence that decedent acknowledged the non-marital child as his own.

Poldrugovaz summarized the development of the law concerning the rights of non-marital children as intended to "enhance the ability of non-mari- tal children to assert their rights of inheritance" (50 AD3d at 123-124). Where evidence of paternity by a genetic marker test is clear and convincing, the court questioned the necessity of establishing open and notorious acknowledgment by the father. The court then resolved the question as to the degree of proof needed to obtain authorization for genetic marker testing by requiring some proof of open and notorious acknowledgment by the father.

We are now left with the possibility that Poldrugovaz may not be followed in other departments. Accordingly, this measure would facili- tate the use of genetic marker testing as a means of proving paternity and eliminate any further inconsistency in the application of the two standards under clause (C). It is noted that, although in most cases, the results of a genetic marker test will be dispositive of the non-mar- ital child's status, it is conceivable that a court may determine for

policy or equitable reasons that a father's open and notorious acknowl- edgment prevails.

Accordingly, this measure merges clauses (C) and (D) of section 4-1.2(a)(2) into a single clause (C) with respect to use of a genetic marker test and recognizes two methods by which a person may establish paternity: the results of a genetic marker test, or by open and notori- ous acknowledgment of the father during his lifetime. Thus, proof may be in the form of a genetic marker test administered to the father (or close relative at any time), or a party may demonstrate that the father openly and notoriously acknowledged the child as his own. The burden of proof for either method is by clear and convincing evidence.

Clause (D) no longer serves a purpose and should be repealed. Addi- tionally, this measure would amend subdivision (b) to delete the word "legitimate" and substitute "marital child," and to provide that a paternal relative may seek to share in an estate where proof of status meets one of the three requirements provided under 4-1.2(a)(2).

This bill is not intended to alter the rights of any party to make an application for exhumation pursuant to Public Health Law Sec. 42.10. (4), nor the rights of any party to object to such an application. Moreover, this bill is not intended to disturb the strong policy of this State that "(the) quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is to be sanctioned." Matter of Currier (Woodlawn Cemetery), 300 N. Y. 162, 164. See also, Saperstein v. Commercial Trav- elers Mutual Accident Association, 36 NY2d 79.

This measure, which would have no fiscal impact on the State, would take effect immediately and apply to the estates of persons dying on or after such effective date.

2008 LEGISLATIVE HISTORY:

OCA 2008-116 Senate 8488 (DeFrancisco) (Rules)