11.27.2018
NJ Appellate Division Opines on Parentage Of Intestate Decedent
In the Matter of the Estate of Castellano, No. A-0165-17T3, 2018 WL 5810264 (N.J. Super. Ct. App. Div. Nov. 7, 2018). Approved for publication.
While the facts of this case are complex, the issue was whether the only child (“Child”) of an intestate decedent (the “decedent”) could be cut off from inheritance through an “equitable adoption” theory. This assertion was based on the fact that the Child was born after his mother married a man other than the decedent, who was the Child’s father.
In 1977, the Child’s mother ended a two-year relationship with the decedent and married Gregory Allen Block, Sr. She gave birth to the Child seven months later. That Child was named after her husband – i.e., the name was Gregory Allen Bock, Jr. — and his birth certificate declared that Gregory, Sr. was his father. The birth certificate so listed the father even though Gregory, Sr. knew he did not father the child, and even though the decedent knew that he did father the child. Id. at *4.
Gregory, Sr. and the mother divorced in 1983. Gregory, Sr. remarried, and he and his second wife had two children. He died in 1995.
The mother never remarried, and she alone raised the Child.
She did not reveal to the Child that the decedent was his natural parent until 2008, when the Child was 30 years old. The Child “was stunned by this news; although resistant, he eventually commenced a casual relationship with [the decedent] that consisted of only occasional telephone calls and even fewer visits. It is fair to assume… that a true or psychological parental relationship never came into being.” Id. at *3.
The decedent was murdered in 2016. He was not survived by a spouse or other children. He also died without a will.
A blood sample confirmed that the decedent had fathered the Child.
When the decedent’s siblings sought letters of administration, the Child filed a caveat and litigation followed.
The trial court entered summary judgment that declared the Child was the decedent’s sole descendant and alone entitled to inherit by the laws of intestacy.
The decedent’s siblings appealed. They argued that the trial judge should have permitted additional discovery, and failed to give sufficient weight to N.J.S.A. §9:17-43(a)(1). That statute provides that “[a] man is presumed to be the biological father of a child if . . . [h]e and the child’s biological mother are or have been married to each other and the child is born during the marriage . . . .” Id. at *4.
At the trial court and on appeal, the Child argued simply that, because the decedent died unmarried, and because both his parents predeceased him, the siblings could only inherit if the decedent died without children — but he did not. N.J.S.A. §3B:5-4(c).
The decedent’s siblings conceded that the Child was fathered by the decedent. Nevertheless, as to legal arguments, the siblings cited: the statutory presumption of parentage arising because, at his birth, the Child’s mother was married to someone other than his natural father, pursuant to N.J.S.A. §9:17-43(a); public polies favoring family preservation when the parents have not disavowed the husband’s paternity of the child; and equitable adoption principles.
As to facts in support of their claims, the siblings relied on: representations about the Child’s parentage in his mother’s divorce judgment; the naming of the Child after the mother’s husband; the birth certification listing the mother’s husband as the father; the holding out to the public by the mother and her first husband as the Child being their own; and an obituary referring to the Child as the son of the mother’s husband.
The Appellate Division rejected the siblings’ arguments but did note the tension between the intestacy and parentage statutes:
The siblings’ argument pits the statute that a child born of a mother in wedlock is presumed to also be the child of her husband, N.J.S.A. §9:17-43(a)(1), against the intestacy laws, which declare – without limitation or qualification – that a child inherits to the exclusion of the decedent’s siblings, N.J.S.A. §3B:5-4(a). To be sure, the parentage statute – born out of an unfortunate legal concept that viewed an illegitimate child as a nonperson, Trust Created Dec. 20, 1961, 166 N.J. at 352 – creates “one of the strongest rebuttable presumptions known to the law,” ibid. (quoting 41 Am. Jur. 2d Illegitimate Children § 10 at 213 (1995)). More than a century ago, the Court of Errors and Appeals explained that to overcome this presumption the evidence had to provide “no possible escape from [that] conclusion.” Wallace v. Wallace, 73 N.J. Eq. 403, 404 (E. & A. 1907); see also Trust Created Dec. 20, 1961, 166 N.J. at 352.
Id. at *7.
The Appellate Division explained that, even though the burden was high, it was undisputed, and confirmed by testing, that the decedent was the Child’s father.
The appeals court also rejected the application of equitable adoption. First, the facts presented in support of that argument were “the product of the conscious and deliberate steps taken by persons other than [the Child]. He didn’t choose his own name, he didn’t participate in the birth certificate’s creation, he wasn’t a party to the divorce action, and he likely had no input into a divorce judgment entered when he was six years old.” Id. at *8-9.
The appeals court explained that, “[a]lthough long recognized in general as an available remedy, equitable adoptions have only been found in far more compelling circumstances.” Id. at *9. The court set aside other cases where equitable adoption was invoked, finding the evidence in this case lacked the gravitas found in the earlier cases. Indeed, the court noted that no evidence had been presented that the mother’s husband ever agreed to adopt the Child; rather, he was aware that another man had fathered the child.
The Appellate Division continued:
None of the authorities we have discussed – nor any others of which we are aware – support the use of ‘equitable adoption’ to destroy a child’s right to inherit. Instead, the theory was designed to recognize and enforce inheritance rights that, in the theory’s absence, would be lost. Even the parentage statute on which decedent’s siblings chiefly rely, was designed to ‘facilitate the flow of benefits from the father to the child,’ Trust Created Dec. 20, 1961, 166 N.J. at 352, not the opposite.
Id. at *12 (emphasis in original).
In the end, affirming summary judgment, the Appellate Division concluded:
[The siblings’] arguments at best embody only the contention that because they had a fuller relationship with their brother than [the Child], they and not [the Child] should inherit. The Legislature thought otherwise, allowing for no exception to the priorities of inheritance that favor [the Child]. Had the [D]ecedent intended to provide for his siblings over [the Child], he could have executed a will that so provided.
Id. at *13.