Today was a big day for 28-year-old Andy. Based on a tip provided by an elderly aunt, he was finally able to locate his long-lost father. Unfortunately he also found out that his father had only hours to live and would be leaving a vast fortune behind. Andy rushed to the hospital, but by the time he got there, his father had already expired without ever meeting Andy.
Andy was grief stricken and severely disappointed. He would never know his father. Yet one question that remained was whether Andy would benefit from the fortune left behind by the decedent . The answer to that question depends on a number factors including:
1. Is Andy in fact the man’s biological child ?
2. Did the man die intestate ?
3. If the man left a will , did he acknowledge Andy in the will?
The first question is a simple matter of fact. Andy was not raised by the deceased man and never met him before. Thus he must prove that he is either the biological or adopted child of the man. Proving that he is the biological child is relatively easy in modern times. Pursuant to state law, Andy is entitled to have a judge order that DNA samples be taken from Andy and the decedent and then compared. If Andy is a genetic match to the decedent, then he is the biological child of the decedent and is entitled to the same rights as any acknowledged biological child.
While it is unlikely that Andy would have been adopted and not aware of the adoption, it is not beyond possibility. To prove adoption , Andy would need to demonstrate that the decedent formally adopted him prior to his death.
The second question is important, because if the decedent died intestate, and Andy was his biological child, then Andy is entitled to a portion of the man’s estate under New Jersey’s intestacy laws . Depending upon who else survived the decedent (e.g., spouse or other children) Andy might be a primary or sole heir .
Things can get a little more complicated if the decedent left a will. It is possible that although Andy did not know who his father was, the father was in fact aware of Andy. In that event, the father may have provided for Andy in a will or expressly named Andy, but decided to leave him a nominal gift of $1.00 or less. If Andy was completely omitted from the will, and can prove parentage, then he may be entitled to an inheritance under New Jersey’s Omitted Children law (NJSA 3B:5-16) .
Establishing parentage for purposes of intestate succession is a complex and hazard-fraught process. That’s why anyone pursuing or defending a parentage claim should consult with a qualified estate planning attorney.