For most of our English common law history, children born out of wedlock were disfavored. In feudal days, the first born male was entitled to the manor, and so succession to wealth and entitlement all depended on the children being “legitimate” children of a legitimate marriage. It has taken years for that system to be eroded by changes in the law. And the recent headlines in the newspaper now highlight how that can matter.
Michael Morgan Taylor was a bond broker who was in the World Trade Center when it collapsed, killing him along with so many others. Some of his remains were recovered and buried. At the time, he had a paternity suit pending against him by a woman who claimed that he had fathered her son. I am not sure what took so long, but I just read today that the court has ordered the remains to be DNA tested to determine the paternity issue. DNA testing has taken a lot of the guesswork out of that issue; and in fact is dispositive of the issue in most cases. And so the law has had to catch up.
Every state has its own laws on this issue, so I am going to look only at New York for this note. Like the others, New York had once disfavored illegitimate children - because it was difficult to prove a paternity case unless you had some type of admission from the father. Absent that proof, a child who claimed but could not prove paternity was left where he started, with no rights to the father’s estate.
New York decided in 2010 that it was unfair to penalize a child for the circumstances of his birth, and so changed its laws. First, it recognized that the term “illegitimate” was a bad starting point - it cast the child in a poor light by using this term. So these children in New York are now “Non-Marital Children”. Second, it recognized that DNA testing has made huge advances, and so permits a child to claim paternity in one of two ways: either by “clear and convincing evidence” of kinship (which DNA testing can furnish) or evidence that the father held them out as his own child through “open and notorious” means.
So, the putative son of Michael Morgan Taylor has been given the right to exhume the remains of Taylor to do DNA testing. As gruesome as that sounds, it is the right result. No matter how horrific his death, if he is survived by a son, then the son should be entitled to the rights granted to a son.
If Taylor died with a will in place that named specific people but not others, then his will would likely be honored; and so the non-marital child would likely not inherit under the will. But if Taylor, 42 years old and not expecting death, died without a will, then the laws of intestacy generally provide for either all or a large share of the estate to go to the surviving children of the deceased (depending upon whether a spouse survives or not). In that case, proving paternity leads to the right result.
The son’s mother has been criticized for being a gold-digger, but in addition to her specific memories of her relationship with Taylor, which in the past would probably not be enough to prove the case, she may have science on her side. If the DNA test proves paternity, then the son is likely entitled to his share of his father’s estate. He is no longer a bastard, or illegitimate; he is the much improved 21st century version, the non-marital child. While I don’t care much for wholesale revisions of language done in the name of political correctness, this change corrects an historical injustice done to children whose only sin was being born to the wrong people at the wrong time. It will be interesting to see how the rest of the case plays out.