Law professors Joanna Grossman and Mitchell Gans, both of Hofstra University, published an interesting two-part article dissecting the outcome of Heath Ledger's untimely death from a probate point of view. Entitled Heath Ledger's Estate: Why Daughter Matilda, Who Was Left Nothing in Her Father's Will, Might Have a Claim to Everything, the article is worthwhile reading for all probate practitioners because it provides a useful outline for thinking about any estate involving a pretermitted child. The following excerpts are from part one of the series.
1. The Few, but Potentially Important, Rights of a Disinherited Child
Under American law, children have no right to inherit from their parents, but they do have the right not to be disinherited by accident – at least, in most states. At a minimum, most jurisdictions protect children who are born after the execution of a parent's will – so-called "afterborn" children – from unintentional disinheritance. Under omitted child statutes (also called "pretermitted" child statutes), the forgotten child is entitled to some share of the parent's estate on the assumption that the parent simply forgot to amend the will after the child's birth.
Let's assume that New York law applies to the distribution of Ledger's estate, because New York is the place he resided and then died. (The conflict-of-law issues will be considered in detail in Part II of this column.) Under Section 5-3.2 of the New York Estates, Powers and Trusts Law (EPTL), a child born after the execution of a parent's last will is entitled to a portion of the estate as long as she is neither provided for nor mentioned in the will. Matilda was born in 2005, clearly after execution of his will in 2003, and there is no mention in Ledger's will of future children. (In contrast, in Anna Nicole Smith's will, she intentionally disinherited all existing and future children not mentioned, putting her daughter Dannielynn's right to inherit in jeopardy – as discussed in a prior column for this site.).
Florida law:
The law in Florida regarding pretermitted children is similar to New York's on this point and would result in the same outcomes discussed above. Here's our statute:
732.302 Pretermitted children.--When a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator's property equivalent to a child's part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless:
(1) It appears from the will that the omission was intentional; or
(2) The testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will.
The share of the estate that is assigned to the pretermitted child shall be obtained in accordance with s. 733.805.
2. When Do Children Born Out of Wedlock Inherit from Their Fathers?
Matilda's rights as a disinherited child turn on whether she is considered the "child" of Ledger under New York law. The many magazine photos of the two strolling through the park may cement the social perception of the parent-child relationship, but the legal standard is more technical.
A child born to married parents is considered to be legally the child of both – and, as such, will have full inheritance rights from both parents. However, New York, like most other states, has different rules for determining legal parenthood of children born out of wedlock. A non-marital child is always considered the legal child of her mother and may thus always inherit from her. Yet such a child may only inherit from her father if steps were taken to establish the legal parent-child relationship, such as an acknowledgment of adjudication of paternity.
In New York, under EPTL § 4-1.2, a man is the legal father of a non-marital child if paternity has been adjudicated by a court; the parents have acknowledged paternity in writing; or paternity has been established by other "clear and convincing" evidence and the father has "openly and notoriously acknowledged" the child as his own.
Here, it seems pretty clear that Ledger's paternity has been adequately established. He is listed as the father on her birth certificate, and he lived with Matilda and Michelle for the first year of Matilda's life. (Plus, all the photos in US Weekly of Ledger pushing her stroller do support the claim of open and notorious acknowledgment.)
Moreover, a recent appellate case in New York rules that a child can get posthumous DNA paternity testing as long as she can show open acknowledgment of paternity. So, one way or the other, Matilda should be able to establish a parent-child relationship with Ledger.
Florida law:
In Florida the rules for establishing paternity of out-of-wedlock child are governed by F.S. 732.108, and would again result in the same outcome. Here's the relevant portion of the statute
732.108 Adopted persons and persons born out of wedlock.--
. . .
(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a descendant of his or her mother and is one of the natural kindred of all members of the mother's family. The person is also a descendant of his or her father and is one of the natural kindred of all members of the father's family, if:
(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.
(b) The paternity of the father is established by an adjudication before or after the death of the father.
(c) The paternity of the father is acknowledged in writing by the father.
3. To What Share of a Parent's Estate is an Afterborn Child Entitled?
As an after-born child, what portion of Ledger's estate might Matilda be entitled to? Now, this is where the story gets interesting. Under New York's omitted child law, when a testator has no children living at the time the will is executed, the afterborn child is entitled to the same share she would have taken had the testator died without a will (in legal terms, "intestate"). In other words, the afterborn child is entitled to her "intestate" share of his estate, and the will is revoked to the extent of that share.
The laws of intestate succession determine who succeeds to a decedent's estate and in what proportions when the individual died without a will. These laws tend to first give priority to a decedent's spouse, but then seek to distribute the estate to the closest surviving relatives, with descendants always being preferred to ancestors. As a general matter, for example, parents of a decedent would never take under the rules of intestacy unless the decedent had not a single living descendant.
In this case, New York's intestacy laws lead us to a somewhat striking result: Matilda, who was omitted from her father's will entirely, would be entitled to everything. Why? Under EPTL §4-1.1, when a decedent is survived by no spouse, the decedent's "issue" (a legal term that includes any direct descendant of the deceased such as children and grandchildren) take everything. Ledger was single when he died (he had never been married), so Matilda is next in line.
What about the Will, which was designed to benefit Ledger's parents and sisters? If New York law governs disposition of his estate, his Will would be revoked in its entirety by the pretermitted child law. Ledger's Will, in other words, could be declared valid, but, ultimately, completely revoked by the share due Matilda.
This result is counterintuitive, yet,clearly supported by both statutory and caselaw in New York. In a 2003 ruling of a probate court in New York, Lance Nelson's entire estate was given to his infant daughter under the omitted child law, even though he had executed a valid will leaving everything to his parents. As the court explained in that case: "If Ashley Nelson is determined to be an afterborn child and was unprovided for by any settlement, the Will is revoked to the extent of her intestate share. If she is the only child of the decedent, that intestate share is the entire estate and the entire dispositive provisions of the Will are revoked." If Ledger's Will were probated in New York, and governed by New York law, this exact same analysis would apply, and Matilda would inherit his entire estate.
Florida law:
Here again the result under Florida law would be the same as under New York law: the pretermitted children of an unmarried decedent get 100% of his estate, even if the decedent executed a valid will leaving everything to his parents, a girl friend, a neighbor or a local charity. If there's only one pretermitted child, he or she gets everything. Here's the relevant portion of the governing Florida statute.
732.103 Share of other heirs.--The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
(1) To the descendants of the decedent.
4. What Effect Might a Second, Pre-Will Child Have on Matilda's Claim?
After Ledger died, tabloids reported that Ledger might have fathered a child long before he fathered Matilda. There is an as-of-yet-unsubstantiated claim that he fathered a child while still in high school in Australia, with an older woman. If this claim is true, would the existence of that child (claimed to currently be an 11-year-old girl) have any effect on the distribution of Ledger's estate?
That depends largely, at least under New York law, upon whether the criteria for legal parenthood would be met. There is no reason to think, with the current evidence, that Ledger had acknowledged paternity of the Australian child, had a DNA test during his life to determine paternity, or indeed even knew about her. As a result, under New York's § 4-1.2, at least as presently interpreted, the child would be unable to prove paternity.
But what if the Australian girl were nonetheless determined to be Ledger's child? Such a claim might be made either by the girl (through her mother or another representative), by pointing to the law of some other jurisdiction, or by Ledger's parents and sisters, in order to wholly defeat Matilda's rights.
The latter claim is somewhat counterintuitive: As a child born prior to the execution of the Will, the Australian girl is not protected by New York's omitted-child law. So how can her existence, if the law treats her as Ledger's legal child, deprive Matilda of her after-born share?
Here is the logic behind New York's rule: If the testator omitted a child who was already in existence when he wrote his Will (for Ledger, this would be the Australian girl), how can we assume that he would have provided for the after-born child (for Ledger, Matilda)? To the contrary, we might assume that he intentionally had disinherited and would continue to disinherit, any and all children he might have. That assumption might be unfair in a particular case – Ledger may not have know about the Australian girl (if she exists) and that may be the only reason he did not include her in his Will. But the assumption applies in all cases, and cannot be rebutted.
Florida law:
Here for the first time Florida and New York law diverge in their results. New York's pretermitted child statute [EPTL § 5-3.2] is more restrictive than Florida's pretermitted child statute [F.S. 732.302]. Under Florida's statute, intentionally disinheritting a child in existence at the time the will is executed does NOT result in an automatic disinheritance of a later-born child. As such, under Florida law Matilda would still be entitled to 100% of the estate . . . even if another child, born before Ledger executed his will, establishes paternity.
It's interesting to note that neither Florida nor New York have adopted the Uniform Probate Code's pretermitted child statute (Section 2-302. Omitted Children.) The UPC commentary to this subsection is, as usual, an excellent starting point for figuring out the public policy rationales underlying the statute. Reading the UPC commentary and comparing how the Florida statute differs also makes clear the public policy decisions we've made here in Florida.
Blogging credit:
Credit goes to Texas probate litigator J. Michael Young for first reporting here in his Texas Probate Litigation Blog on the linked-to article.