When a child is born to parents who are not married, the child oftentimes must satisfy Estates, Powers and Trusts Law (“EPTL”) § 4-1.2 (which requires, among other things, an order of filiation, an acknowledgement of paternity by the father, or other clear and convincing evidence of paternity, such as genetic-marker testing) in order to inherit from his or her father (see EPTL § 4-1.2).  However, as the Appellate Division’s recent decision in Tiwary v. Tiwary illustrates, a child born of parents who are not married at the time of the child’s birth, but who subsequently marry each other, generally need not satisfy EPTL § 4-1.2 in order to inherit from his or her father.  The reasons why are discussed below.

Under Domestic Relations Law § 24, a child born to parents who are married at the time of the child’s birth is presumed to be “the legitimate child of both” parents (see Domestic Relations Law § 24[1]).  A similar presumption of legitimacy arises when a child is born to parents who are not married at the time of the child’s birth, but who subsequently enter into “a civil or religious marriage,” or consummate “a common-law marriage where such marriage is recognized as valid” (see id.).  Where a child’s legitimacy is presumed, “the child is legitimated for all purposes of New York law,” including inheritance (see Tiwary v. Tiwary, Docket Nos. 2019-5671 and 2020-2665N, 2020 NY Slip Op 07479 at *1 [1st Dep’t Dec. 10, 2020]).

In Tiwary, the plaintiff’s mother gave birth to the plaintiff in 1973 (see id.).  Two years after the plaintiff’s birth, the plaintiff’s mother married the decedent (see id.).  At some point after the plaintiff’s birth, the decedent consented, in writing, to add his name to the plaintiff’s birth certificate as the plaintiff’s father (see id.).  When the decedent died, a dispute arose as to whether the plaintiff should be treated as one of the decedent’s distributees, since the plaintiff’s birth occurred before the decedent married the plaintiff’s mother (see id.).

Although the Supreme Court denied the plaintiff’s motions for a summary determination that he was the decedent’s distributee, the Appellate Division modified the Supreme Court’s order, holding that the plaintiff was the decedent’s marital child; and recognizing the plaintiff as the decedent’s distributee (see id.).  In doing so, the Appellate Division explained that the plaintiff should be presumed to be the decedent’s legitimate child, since (a) the plaintiff’s birth certificate constituted prima facie proof that the plaintiff’s mother and the decedent were the plaintiff’s parents, and (b) the decedent married the plaintiff’s mother after the plaintiff’s birth (see id.).

As Tiwary illustrates, a child born to parents who are not married at the time of the child’s birth, but who subsequently marry, is presumed to be a marital child.  Such a child’s legitimacy generally will be presumed for all purposes of New York law, including inheritance from the child’s father.