Tuesday, March 30, 2010

After Born Children Statute Not Extended to "After Known" Children

COURT RULES NON-MARITAL CHILDREN ARE NOT ENTITLED TO ANY RIGHTS UNDER AFTER-BORN LAW

In a January 25, 2010 entry in the New York Trusts and Estate Litigation blog, Farrell Fritz partner, Eric Penzer, Esq., reports on Matter of Gilmore, 1/19/2010 NYLJ 21 (col 1), a case in which I drafted opposition as the ward of an infant, to a motion by putative distributees to the decedent's estate.  The purported non-marital children sought a determination of their status and a distributiuon as "after known" or "after ackonwledged" children pursuant to a novel theory involving an expansion of the "after born" statute codified in EPTL 5-3.2.

The movants, Andrea and Malverick Hofler, alleged that after the decedent executed his will on June 24, 1996, he underwent DNA tests in 2005 and 2006 which revealed to him for the first time that he was their biological father.  Although the Hoflers were in fact born long before the execution of decedent's will, they claimed that non-marital children, only known or acknowledged by their father after execution of his will, should be accorded the same presumption of inadvertent disinheritance as an after-born child and extended the same rights.

In concluding that the movants did not have any rights pursuant to the after born statute, the Court stated that the statute itself speaks clearly of a "child born after the execution of a last will" (EPTL 5-3.2 [a]).  Nonetheless, the putative distributees argued that the meaning should have be extended to a non-marital child who is known or acknowledged by a decedent only after execution of his will.  To the contrary, the Court held that it is not at liberty to conjecture about, add to or subtract from words having a definite and plain meaning.  The Court stated in no uncertain terms that if it were to engraft exceptions where none exist it would constitute a trespasses by a court upon the legislative domain (City of Buffalo v. Lawley, 6 AD2d 66 [4th Dept 1958]; McKinney's Cons. Laws of NY Book 1, Statutes, §76).  When, as here, a statute is free from ambiguity and its sweep unburdened by qualification or exception, a court must apply the language as it is written (Zaldin v. Concord Hotel, 48 NY2d 107 [1979]; 2 A Sutherland, Statutory Construction [7th ed.] §46:1).


The 2007 amendment to EPTL 5-3.2 specifically restricts a non-marital child's entitlement to "a non-marital child, born after the execution of a last will."  Accordingly, the Court held that it may not ignore a statute's language in an effort to derive or construct a legislative intent that could easily have been articulated by the Legislature when it drafted the [amendment].  "'The court will not exceed its authority by reading the [claimant's] language into the statute‘" (New York State Crime Victims Bd. v. T.J.M. Productions Inc., 176 Misc 2d 777, 785 [Sup Ct, New York County 1998]; affd 265 AD2d 38 [1st Dept 2000]; see also 97 NY Jur 2d, Statutes, §104).  Accordingly, the Court concluded that the Hoflers were not entitled to any rights under the after-born statute (EPTL 5-3.2).

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