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

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.

A 2002 amendment to DRL § 117 substituted the word “birth” for the
term “natural” throughout the statute. (L 2002, ch 312, § 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.”