Abandonment under the Estates Powers and Trusts Law (” EPTL “).

A parent is not supposed to outlive his/her children. This is a tragic truth that can only be enhanced when determining that child’s estate. Due to the statute EPTL 3-1.1, a child under 18 dies intestate, meaning without a will.[1] The laws of intestacy clearly state that in the event the decedent is not married and has no children, his estate shall be inherited by the decedent’s parents. But what happens when one of those parents has not been there for the child? Either due to divorce or other circumstances the child and parent do not have a relationship; is that parent still entitled to collect his distributive share of the child’s estate?

The statute is clear. EPTL 4-1.1(a)(1) provides: “No distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while the child is under the age of 21 years has failed or refused to provide for the child or has abandoned such child, whether or not such child dies before having attained the age of 21 years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child.”

In interpreting and applying this statute, the courts have been clear in their determination. The disqualification of a parent is premised upon either (1) a failure or refusal to support the child or (2) abandonment of the child.[2] Either of these can be the basis for denying a parent their right a distributive share of the child’s estate, although neither is a necessary element in order to prove the other.[3] A parent’s disqualification is determined by their relationship before the child turns 18, regardless of whether or not the child dies after 18. If the child dies intestate and one parent asserts abandonment by the other parent, an analysis is necessary to determine whether the parent asserting abandonment has sustained her burden.[4]

A parent has the duty to support his minor child in accordance with his means.[5] A failure or refusal to support a child financially can prevent that parent from receiving his distributive share. Financial support of a minor child must be shown by monies paid by the non-custodial parent to the parent with custody. Direct payments to the child are not included, nor are payments made to the child by others. Relying on others, including the state in the form of public assistance will result in the parent forfeiting his rights to any distributive share. The statute “imposes an equitable penalty upon parents who fail to fulfill their obligations of support under FCA 413.”[6]

It is relatively easy to determine whether a parent takes on the responsibility of financially supporting his child. It is more difficult to determine whether a parent has abandoned his child. What is abandonment? The statute does not provide a definition of abandonment, so a review of the case law is necessary to determine how the term ‘abandonment’ is interpreted.

Case law has been clear on what constitutes ‘abandonment.’ Abandonment is a voluntary breach of neglect of the duty to care for and train a child and the duty to supervise and guide his growth and development.”[7] There are limitless interpretations of the relationship between a parent and child and each one is unique. Therefore, how can a court determine that a particular parent has abandoned his child under the statute? There must be an analysis of the facts and circumstances of the parent/child relationship in order to make a determination.

A father who paid child support, but made no effort to contact his son for the seven years between his remarriage and the child’s death, despite living nearby was found to have abandoned his son, despite the fact that he paid child support.[8]

Similarly, a father who professed his long-distance love for his child but had no more than sporadic, infrequent visits did not reach the threshold of demonstrating his “natural and legal obligations of training, care and guidance owed by a parent to a child.”[9] A claim the child’s custodial parent ‘poisoned’ the child against the non-custodial parent will not be sufficient to overcome the burden of proof.[10]

A court’s order limiting a parent’s involvement is also not a valid excuse to avoid a determination of abandonment. Courts have clearly held, “while a court order restricting a parent to visitation may lessen the measure of such parent’s obligation, it does not eliminate it. Rather the inquiry then becomes whether or not the parent has fulfilled this responsibility…”[11]

However, a father who was absent for nearly half a child’s life due only to the fact that he did not know of the child’s existence, and subsequently financially supported and attempted to participate was found to have not abandoned the child.[12]

A parent who has failed to fulfill his parental duties due to incompetency will not be held as abandoning his child so long as there is no history of non-support.[13]

A parent cannot prove his involvement in his child’s life merely by asserting his love for the child or by stating his intent to have a relationship with the child. Actions speak louder than words. It is the actions of the parent accused of abandoning his child that will determine whether or not his parental duties were fulfilled, not his plan or intent or wish to spend time with the child during their life. A parent’s absence in the child’s life, as evidenced by a lack of knowledge regarding the child’s health, education and well-being are strong indicators of abandonment and will support a court’s denial of any distributive share of the child decedent’s estate.


[1] NY EPTL Section 3-1.1; N.Y. Prac., Trusts and Estates Practice in New York Section 7:61 (A person must be 18 in order to execute a will).

[2] In the matter of Wright, 20 Misc.3d 648 (2008); In the matter of Pessoni, 11 Misc.3d 245 (2005).

[3] Matter of Pridell, 206 Misc. 316 (1954)(Where the father paid child support to decedent’s mother, he admits to having no relationship with the decedent, and was denied participation in decedent’s estate); Matter of Musczak, 196 Misc. 364 (1949).

[4] Matter of the Estate of Clark, 119 A.D.2d 947 (1986).

[5] Matter of Gonzalez, 196 Misc.2d 984 (2003).

[6] Id at 988.

[7] Wright at 867; Pessoni at 247; Pridell at 318; N.Y. Prac., Trusts and Estates Practice in New York Section 7:63

[8] Pridell at 318.

[9] Gonzalez at 987.

[10] Pessoni at 549.

[11] Pridell at 318.

[12] The matter of the Estate of Ball, 24 A.D.3d 1062 (2005).

[13] Musczak at 367.

— by Elisa S. Rosenthal, Esq.
Law Office of Richard A. Klass
Copyright 2013 Richard A. Klass, Esq.