Authored by: Paul J. Sowell, Esq.

New York State Governor David A. Paterson has signed into law a bill that clarifies the degree of proof necessary to establish paternity for inheritance purposes. Under the new law, paternity may be established by two methods: a genetic marker test or open and notorious acknowledgement during the father’s lifetime.

Since 1993, use of genetic marker tests to establish paternity has been discussed in many New York court decisions. The issue initially involved the restriction that such a blood test had to be performed during the father’s lifetime. Because of the scientific reliability of genetic marker testing, the courts began to allow post death genetic marker tests in support of the prior laws clear and convincing paternity standard. In addition to the clear and convincing standard, New York law had been construed as also requiring an “open and notorious acknowledgment by the father.” But whether this latter prong had to be established before a court would admit the results of a genetic marker test initially resulted in a split between two appellate departments.

The Fourth Department held that a party seeking to prove paternity based upon a genetic marker test need not first establish “open and notorious acknowledgment” before seeking to admit such proof into evidence. The Second Department held that proof of the father’s “open and notorious acknowledgment” of the child must be shown before another party could be directed to submit to genetic marker testing. The Second Department further complicated the issue in a recent case by providing that a genetic marker test functioned as “clear and convincing evidence” as long as there was some (but not necessarily the statutorily-required “open and notorious”) acknowledgment by the father that the non-marital child was his own.

The new law makes it clear that the two methods by which a person may establish paternity are by a genetic marker test or by open and notorious acknowledgment of the father during his lifetime. Thus, proof may be in the form of a genetic marker test administered to the father (or close relative at any time), or a party may demonstrate that the father openly and notoriously acknowledged the child as his own.  As a result, the new law should make it easier for non-marital children to establish their rights in their fathers’ estates.