The Challenge of Dealing with Children Born During and Outside Marriage

The difference between children born during a marriage and those born outside of marriage might seem insignificant, but this issue can become a substantial one for people who are navigating estate planning issues. 


In a recent case, Hollywood producer Steve Bing passed away with two illegitimate children. Steve’s father had created various trusts for the benefit of future grandchildren in 1980. Before Steve’s death, some litigation had occurred involving trusts. The dispute arising from the trusts addressed the meaning of the word, “grandchild”, as it was used in the trust’s tools. The trustee had taken on the view that “grandchild” did not include grandchildren born out of wedlock who had not lived as regular members of their natural parent while minors. Steve Bing had not resided with his children as regular members of his household. 


This case raises issues common to many jurisdictions in respect to definitions used in trusts as well as other estate planning tools. 


The Rights of Children Born Outside of Marriage in New York


In 2010, the New York legislature realized that society’s approach to children born outside of marriage had changed. Consequently, New York legislatures revised the previous law, EPTL 4-1.2, which had addressed the issue. The law was revised to require alleged non-marital children of intestate estates within New York to show either “clear and convincing” evidence of kinship or evidence that the deceased individual had held the children out as their own through “open and notorious” means. This marked a huge step forward for the rights of children born out of wedlock in the state given that they no longer were required to only one of these two options. 


Additionally, New York estate law was revised to reflect a more equitable manner where a class is no longer referred to by courts as illegitimate but are now known as “non-marital” children. Society has become more compassionate to the fact that children should not be punished under the law or by society for something that lies beyond their control. Consequently, unlike some other states, New York has evolved with the belief that all men and women are equal. This does not, however, mean that disputes cannot arise among family members. If you end up in a family dispute, you should not hesitate to speak with an experienced attorney.


How to Reduce the Risk of Family Disagreements


Fortunately, the creator of a trust can utilize several strategies to reduce the potential risk of family disharmony and costly litigation. Some of these steps include: 



  • Follow the advice from your attorney when ambiguity exists about a trust’s terms
  • If a mismatch occurs between the understanding of beneficiaries and the legal position, use the trust instrument to resolve the situation
  • If you cannot use a trust instrument, consider what alternative options are available
  • Make sure that an adequate line of communication exists and continues between beneficiaries


Contact an Experienced Estate Planning Attorney


The estate planning process can seem overwhelming without the assistance of an experienced attorney. As a result, if you have questions or concerns about this process, you should not hesitate to speak with an experienced attorney. Contact Ettinger Law Firm today to schedule a free case evaluation.

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