Senate Bill S3682

                                 BILL NUMBER:  S3682A

 TITLE OF BILL :  An act to amend the estates, powers and trusts law,
in relation to establishing inheritance by a non-marital child; and to
repeal certain provisions of such law relating thereto

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Surrogate's Court Advisory Committee.

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
different 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 (D)). The law has been amended
over the years to parallel society's acceptance of the inheritance
rights of non-marital children and to reflect recent advancements in
science whereby paternity may be established 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)(D) 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
relatives where such persons sought, or contested, a determination of
paternity (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 Poldrugovaz, 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.
2003J (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 genetic 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 establish "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-marital 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
facilitate 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-marital child's status, it is conceivable that a court may
determine for policy or equitable reasons that a father's open and
notorious acknowledgment 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
notorious 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.
Additionally, 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 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)