Modern Day Thorn Birds: Recent Case Concerns Proving Paternity of Non-Marital Children under the NY EPTL

Modern Day Thorn Birds: Recent Case Concerns Proving Paternity of Non-Marital Children under the NY EPTL

A recent article in the New York Daily News entitled Man Claiming to Be Son of Dead Brooklyn Priest Loses Battle for Piece of His Estate provided a sensational headline for an interesting scenario involving paternity and inheritance under the New York Estate Powers and Trust Law (EPTL). In the Matter of Otto L. Garcia, et al, N.Y.L.J., Feb. 29, 2012 (Sup. Ct. Kings County), the previous guardian and a successor guardian to a Roman Catholic priest, previously adjudicated an incapacitated person, sought approval and judicial settlement of final accounts that were submitted to the Court after the incapacitated priest passed away. While the proceeding was pending, an individual came forward claiming to be the son the deceased priest, and the Court was faced with the question of whether the purported son had standing in the accounting proceeding as a non-marital child of the deceased priest. 

Pursuant to the EPTL 4-1.2(a)(2)(C), as stated on the date of the decedent's death, a non-marital child must show paternity by clear and convincing evidence and the father must have openly and notoriously acknowledged the child as his own.DNA testing results are statutorily authorized as clear and convincing evidence of paternity under the  NY Family Court Act § 418(a) which states that:

[w]hen a mother, the child and the alleged father...submit to one or more genetic marker or DNA marker tests... [i]f the record or report of results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall  create a rebuttable presumption of paternity, and, if unrebutted, shall establish paternity...

In the instant case, the priest had been buried and his DNA was unavailable. As explained by the Court, before disinterment can be sanctioned, there must be shown to be "good and substantial reasons." Matter of Currier (Woodlawn Cemetary), 300 N.Y. 162, 164, 90 N.E.2d 18 (1949) [enhanced version available to subscribers]. However, "disinterment merely to facilitate the resolution of an inheritance claim does not meet the good and substantial reason standard." Matter of Sekanic, 229 A.D.2d 76, 78, 653 N.Y.S.2d 449 (3d Dep't 1997) [enhanced version available to subscribers]. 

Instead, a son of the decedent's brother provided a DNA sample to help determine paternity. DNA samples were analyzed, and the laboratory found there was an 89.63% probability that the two men were first cousins-not the 95% required under the Family Court Act.  Thus, the DNA results did not rise to the rebuttable presumption of paternity under the Family Court Act, and certainly did not show paternity by clear and convincing evidence required by the EPTL. 

Notwithstanding, his failure to prove paternity through DNA, the purported son attempted to show other circumstantial evidence of paternity including accounts which were opened for him by the decedent, and the resemblance of the two men in separate photographs. The Court concluded that the steps taken to provide for the purported son financially could just as likely have been a desire by the decedent to provide for the son of a friend. In addition, while photographs of a purported father and son together has been seen by some courts as suggestive that they spent time together and an open acknowledgement of paternity; the proffered two separate photos of the decedent and the purported son did not show any interaction between the two. 

The Court concluded that the purported son had failed to meet either prong of EPTL 4-1.2(a)(2)(C), and failed to establish standing as a legitimate child of the decedent. However, the purported son was able to assert standing to object to the accountings as a named beneficiary on two Totten Trust bank accounts which were utilized by the guardians.  


Jennifer F. Hillman is an attorney at Ruskin, Moscou Faltischek, P.C., Uniondale, New York where her practice focuses in the area of trust and estate litigation. She can be reached at

1 This statute has since been revised and the amendment as enacted to take effect April 28, 2010, stated that "paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own....  

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