In re Gilmore

Appellate Division of the Supreme Court of the State of New York
87 A.D.3d 145, 925 N.Y.2d 567 (2011)

ELI5:

Rule of Law:

A child born before the execution of a testator's will, whose existence is unknown to the testator until after the will's execution, does not qualify as an "after-born child" under New York's EPTL 5-3.2. The judicially created exception for after-adopted children does not extend to "after-known" biological children.

Facts:

Andrea Hofler and Malverick Hofler were born to a mother who was not married to Roy Gilmore.
In June 1996, Roy Gilmore executed his last will and testament, leaving his entire estate to one of his children, Angela Manning.
Approximately ten years after executing his will, Gilmore underwent DNA testing which confirmed he was the biological father of the Hoflers.
In 2006, after learning of his paternity, Gilmore acknowledged the Hoflers as his children to his sister.
On January 13, 2007, Roy Gilmore died without having changed his 1996 will.

Procedural Posture:

After Roy Gilmore's death, his executor, Angela Manning, offered his 1996 will for probate in the Surrogate's Court.
Andrea Hofler and Malverick Hofler, as nonparties, filed a petition in the probate proceeding.
The Hoflers moved for summary judgment in the Surrogate's Court, seeking a determination that they should be treated as after-born children pursuant to EPTL 5-3.2.
The parties stipulated that the court would decide the motion as a pure matter of law, assuming the truth of the Hoflers' factual allegations for the purpose of the motion.
The Surrogate's Court denied the Hoflers' motion, finding they were not entitled to any rights under EPTL 5-3.2.
The Hoflers, as the appellants, appealed the Surrogate's Court's order to the Appellate Division of the Supreme Court of New York.

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Issue:

Does New York's after-born child statute, EPTL 5-3.2, which protects children born after a will is executed from unintentional disinheritance, extend to biological children who were born before the will was executed but whose existence was only discovered by the testator after its execution?

Opinions:

Majority - Leventhal, J.

No. The biological children of a testator, born prior to the execution of a final will, are not entitled to be treated as after-born children under EPTL 5-3.2. The court reasoned that the plain language of the statute unambiguously applies only to a child "born after the execution of a last will." Extending the statute to include "after-known" children would require the court to impermissibly amend the statute by inserting words not present, which is a legislative function. The court distinguished the established case-law exception for after-adopted children, noting that adoption is an affirmative legal act that creates the parent-child relationship post-will, unlike the mere discovery of a pre-existing biological relationship. Finally, the court observed that legislative amendments to the statute have not included protections for "after-known" children, indicating a lack of legislative intent to cover them.

Analysis:

This decision strictly construes New York's pretermitted heir statute, reinforcing the principle of judicial restraint and adherence to the plain meaning of statutory text. It solidifies the distinction between an after-adopted child, whose legal status as the testator's child is created post-will, and an "after-known" biological child, whose status exists from birth. The ruling firmly places the responsibility on the Legislature, not the judiciary, to expand the statute's protection to cover children discovered after a will's execution, highlighting a potential gap in the law compared to states like California that have enacted such protections.

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