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SURROGATE'S COURT OF NEW YORK, KINGS COUNTY 1969.NY.42763 <>; 303 N.Y.S.2d 806; 60 Misc. 2d 756 August 15, 1969 IN THE MATTER OF THE ESTATE OF JULIO S. ORTIZ, DECEASED Joseph Klotz for petitioner. Dora Aberlin for claimants. Nathan R. Sobel, S. Author: Sobel

Nathan R. Sobel, S.

Author: Sobel

 This proceeding raises the issue of the right of illegitimate children who have suffered "pecuniary injuries" to share in the distribution of damages recovered in an action for the wrongful death of their putative father.

Two issues are discussed:

I. The rights of such illegitimates under the Equal Protection Clauses of the Federal and State Constitutions (U. S. Const., 14th Amdt.; N. Y. Const., art. I, § 11).

II. The recognition required to be given by the courts of this State to legitimation statutes of other States, in this instance, Puerto Rico.

The parties have agreed to submit the legal questions before offering proof of paternity. Some other factors need to be mentioned. The issue of the rights of these illegitimate children is first raised after a compromise had already been reached and approved in an action brought by the administrator. The damages were sought on behalf of the dependent parents as sole distributees of the deceased. The children seek only to share in the statutory distribution although they were not "persons for whose benefit the action is brought" (EPTL 5-4.3). It should be observed also that under the pertinent statute (EPTL 4-1.1) the children would take all to the exclusion of the parents, although the latter did establish pecuniary injury while the former might not have been able to do so. These problems and the issue of paternity will be reserved for later determination. Only the legal questions are discussed.


EPTL 5-4.4 provides that damages in an action for wrongful death "are exclusively for the benefit of the decedent's distributees and, when collected, shall be distributed to the persons entitled thereto under 4-1.1" in proportion to the pecuniary injuries suffered by them.

EPTL 4-1.1 governs the descent and distribution of property of a decedent in intestacy.

The wrongful death statute's incorporation by reference of the distribution statute is "short-cut" legislation. The former did not always include all distributees as beneficiaries of a wrongful death action. Like such statutes in many States it at one time limited damages to closest of kin. The point is that the Legislature may in its absolute discretion designate one class of beneficiaries to inherit and another class to receive the damages for wrongful death. That it elected to make each the same has no significance.

When, however, one statute incorporates by reference the provisions of another, it usually incorporates by operation of law amendments to the latter and often as well decisions of courts affecting the latter. In the instant situation, as the classes of distributees entitled to inherit in intestacy are broadened or narrowed, so are those entitled to damages in wrongful death action; and, to state the issues specifically, as illegitimates are permitted by statute or decision to inherit, these become automatically entitled to distribution of the proceeds of wrongful death actions.

As do other States, New York has two kinds of legitimation statutes. One kind legitimates a child born illegitimate. The other kind, by broadening the class of legitimates, in effect makes a child born illegitimate, legitimate from birth nunc pro tunc.

EPTL 4-1.2 is a legitimation statute. It specifies the circumstances under which a child born illegitimate may be a "distributee" (EPTL 1-2.5) entitled to inherit in intestacy and therefore by operation of law to be the beneficiary of a wrongful death action. That statute provides that an illegitimate child is the legitimate child of his mother entitled to inherit from her and she from him and, in consequence, each may share as beneficiary for the wrongful death of the other. But under the same statute an illegitimate child may neither inherit from his father nor the father from him unless "a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child." Thus, only if such an order of filiation is duly made may the illegitimate child share in the recovery for the wrongful death of his father.

Some things, pertinent to the later discussion of the legal problems, should be noted about this filiation statute.

First, neither formal acknowledgment outside of court nor informal acknowledgment, such as residing in the same household or furnishing support, suffices to give the illegitimate status (Matter of Consolazio, 54 Misc. 2d 398). Status, if it is to be recognized, must be effected through a proceeding in the Family Court (Family Ct. Act, §§ 511-518). Many States recognize less formal procedures and because of this conflict of law problems are created for our courts when the illegitimate is born in one of such jurisdictions.

Second, because of the short limitation of time within which to commence a filiation proceeding, no initiative of the child -- since he cannot act for himself -- can achieve for him legitimate status. Such a provision creates constitutional questions.

Former sections 24 and 145 of the Domestic Relations Law represent the second kind of statute, those that legitimate for all purposes an illegitimate nunc pro tunc from birth. Both sections speak in terms of a marriage of the parents. In the instant case there is no claim that the parents married common law or otherwise. The statutes are briefly discussed ...

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