CAN ADOPTEE INHERIT FROM BIOLOGICAL PARENT INTESTATE ESTATE?

MATTER OF OSTAPENKO, 2023 NY Slip Op 23349 - NY: Surrogate's Court, Kings 2023:

"The question before the court is whether the adoption of the Petitioner by her stepfather prohibits the Petitioner from inheriting from her birth father, the Decedent, as an "adopted-out" child. The EPTL states that an adopted child's right to intestate distribution is governed by the domestic relations law ("DRL"). See EPTL §4-1.1(d). Under most circumstances, "[t]he rights of an adoptive child to inheritance from and through his birth parents shall terminate upon the making of the order of adoption." DRL §117(1)(b).

The legislature has created exceptions to the general rule, which would apply to the herein case. In 1987, the statutory exception was expanded for adopted children to "inherit from and through their natural parents as to estates of persons dying after August 31, 1987, provided that the decedent is the adoptive child's natural grandparent or is a descendant of such grandparent and that an adoptive parent is married to the child's natural parent or is the child's natural grandparent." In re Estate of Morrow, 187 Misc 2d 742, 744, (Sur Ct, Bronx County 2001), See DRL § 117(1)(e); Matter of Seaman, 78 NY2d 451 (1991).

In Matter of Johnson, 18 Misc 3d 898, 901, (Sur Ct, Kings County 2008), the Court made the following observations about the legislative intent for the expanded exception for adopted children to inherit from their birth parents as codified in DRL §117(1)(e):^[3]

The Recommendation of the 1987 Law Revision Commission to the 1987 Legislature indicates the intent of the amendment to Domestic Relations Law § 117 was to advance a fundamental policy underlying the laws governing intestate distribution. McKinney's Session Laws of NY 1942. In sum, the laws of intestacy attempt to distribute the decedent's property to persons whom the decedent would likely have chosen had he or she executed a will. See Matter of Shupack, 158 Misc. 873, 877, 287 N.Y.S. 184 (Sur Ct, Kings County 1936).

Accordingly, in cases where a child is adopted by a close family member, "[t]he Legislature has chosen not to cut off inheritance ties between the adopted-out child and the natural family that has been replaced because of the likelihood of continued contact with that family." Matter of Seaman, 78 NY2d 451, 461 (1991) (emphasis added). Because there is a likelihood of contact with biological parents in intrafamily adoptions, the policy concerns of severing adoptees from their biological parents and securing them in new families are not implicated. See Matter of Best, 66 NY2d 151, 155 n. 1 (1985).

Based on the evidence presented at the kinship hearing, the two-prong exception under DRL §117(1)(e) is satisfied in this proceeding. The Petitioner, as the adopted-out child, inherits through the Decedent, her birth father, because the Decedent is a descendant (son) of the adoptive child's birth grandparents (Halyna and Hryhorij), and the Petitioner was adopted by her stepfather.^[4]" In a stepparent adoption, the adoptive child inherits from and through both biological parents, including the biological parent that has not married the stepparent or consented to the stepparent adoption." In re Estate of Morrow, 187 Misc 2d 742, 744 citing Matter of Seaman, 78 NY2d 45 (1991). Thus, Petitioner's right to inherit from or through either birth parent did not terminate upon her adoption. The testimony of the witnesses and the evidentiary submissions have established that the Decedent died without a spouse and is survived by one child, the Petitioner, as the Decedent's sole distributee. Therefore, the net estate shall be distributed to Vanessa Wojtowicz, the Petitioner, pursuant to the provisions of EPTL §4-1.2(a)(2)(B) and EPTL §4-1.2(a)(2)(C).

Petitioner, Vanessa Wojtowicz, appears to be competent to act as administrator of the estate and has offered proof sufficient to establish her superior entitlement to letters of administration over the P.A. See SCPA §1001(1)(b). Accordingly, letters of administration shall issue to Vanessa Wojtowicz, without bond, upon duly qualifying under law, and the temporary letters of administration issued to the P.A. are hereby revoked. Petitioner's Revocation Proceeding under File No. 2016-4367/A&B is dismissed, without prejudice, since the herein decision renders it moot.

The P.A. shall turnover to Petitioner all property belonging to the estate in his possession and control, within sixty (60) days of service of a certified copy of this order, if any estate assets have been collected.

Armena Gayle, Esq., counsel to the Kings County Public Administrator, waives an award for legal services.

Decree signed.

[1] See Surrogate Diana Johnson's Decision dated November 14, 2016.

[2] The instrument acknowledging parentage dated March 31, 1983 was entered into the kinship hearing as Exhibit A-10.

[3] A 2002 amendment to DRL § 117 substituted the word "birth" for the term "natural" throughout the statute. (L 2002, ch 312, § 4.)

[4] Petitioner entered into evidence as Exhibit A-13 certified copies of her adoption, which states that Richard Wojtowicz was the spouse of Petitioner's mother, Dorothy."