This case is now before us on remand from the Supreme Court of the United States for further consideration in the light of Trimble v Gordon (430 U.S. 762). We adhere to our previous decision (38 N.Y.2d 77).
At the outset we observe that the standard to be applied in our review, while "less than strictest scrutiny", is nonetheless "not a toothless one" (perhaps in the sense that it would be a "toothless" standard if it could be satisfied by a mere finding of some remote rational relationship between the statute and a legitimate State purpose) (430 U.S. 762, 767).
We find the Illinois statute which was before the court in Trimble significantly and determinatively different from the New York statute. Under the former the right of an illegitimate child to inherit from his father depended not only on proof, by way of the father's acknowledgment, of the fact of paternity, but on proof as well that the parents had intermarried (Ill Rev Stat, ch 3, § 12 ; cf. Ill Rev Stat, ch 3, § 2-2 [1976-1977 Supp]).
In our analysis the Illinois statute focuses on a requirement that the family relationship be "legitimatized" by the subsequent marriage of the parents. Thus, there was a manifested and impermissible hostility to illegitimacy as such, unrelieved even if there were no doubt whatsoever as to paternity.
In another aspect we note that even with respect to the issue of paternity there is a different emphasis in the two statutes. Illinois requires in a conclusory form only that the child be "acknowledged by the father as the father's child". New York, on the other hand, is evidently concerned not only with the fact of paternity but with the form and manner, and thus the availability, of its proof, i.e., by order of filiation.
The Supreme Court explicitly recognized the inherently more difficult problems of proof of paternity than of maternity and acknowledged that the States have a legitimate interest in making provision for the orderly settlement of estates and the dependability of titles to property passing under intestacy laws (430 US, at p 771). "The orderly disposition of property at death requires an appropriate legal framework, the structuring of which is a matter particularly within the competence of
The issue here appears to turn, then, on whether a State may constitutionally require as proof of paternity a judicial determination made during the lifetime of the father. We find nothing in Trimble which forecloses this possibility; specifically we do not, as appellant would have us, read footnote 14 at page 772 as forbidding such a requirement. The preference for judicial determinations with respect to title to real property has a long and respected history and provides an available record. In effect our statute requires that the determination of paternity be made in the formality of a judicial proceeding in consequence of which there will follow an order of filiation and a permanent, accessible record. If a father is prepared to execute a formal acknowledgment of paternity (a prerequisite which appears clearly to be acceptable to the Supreme Court), obtaining an order of filiation will not be burdensome. Nor do we perceive the seeds of constitutional infirmity in the requirement that the judicial determination be made within the lifetime of the father. As we noted before, the father "may be expected to have greater personal knowledge than anyone else, save possibly the mother, of the fact or likelihood that he was indeed the natural father. His availability should be a substantial factor contributing to the reliability of the fact-finding process." (38 NY2d, at p 82.) Indeed a formal acknowledgment of paternity, apparently found in Trimble to be an acceptable requirement, obviously entails personal participation by the father during his lifetime.
Finally, we would merely note, if Trimble is to be read as inviting exploration of the intent of the Legislature in adopting the particular statute, that research of counsel as well as our own has disclosed no relevant materials with respect to the enactment of EPTL 4-1.2 (subd [a], par ). We could speculate as to the details of legislative intentions, and so could others. To us it is clear, even in the absence of specific legislative materials, that this statute serves a legitimate State purpose — in the language of Trimble, to make provision for "the orderly settlement of estates and the dependability
For the reasons stated we conclude that our statute meets the constitutional guidelines articulated in Trimble. Accordingly, the decree of Surrogate's Court, Westchester County, should be affirmed, with costs.
Admittedly, the Illinois statute recently declared unconstitutional by the Supreme Court of the United States is significantly different from the New York statute (EPTL 4-1.2, subd [a], par ). Nevertheless, it is respectfully submitted that our statute is likewise unconstitutional in light of Trimble v Gordon (430 U.S. 762).
In Trimble, the Supreme Court was careful to delineate the boundaries of its inquiry, thus explaining that (p 771) "The orderly disposition of property at death requires an appropriate legal framework, the structuring of which is a matter particularly within the competence of the individual States. In exercising this responsibility, a State necessarily must enact laws governing both the procedure and substance of intestate succession. Absent infringement of a constitutional right, the federal courts have no role here, and, even when constitutional violations are alleged, those courts should accord substantial deference to a State's statutory scheme of inheritance." The court also recognized that (p 770) "[t]he more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers' estates than that required either for illegitimate children claiming under their mothers' estates or for legitimate children generally". Nevertheless, considering the Illinois statute, the court reasoned (pp 770-771): "We think, however, that the Illinois Supreme Court gave inadequate consideration to the relation between § 12 and the State's proper objective of assuring accuracy and efficiency in the disposition of property at death. The court failed to consider the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity. For at least some significant categories of illegitimate children of intestate men, inheritance rights can be recognized
Applying the equal protection analysis employed by the Supreme Court in Trimble necessitates consideration of the relation of our statute to our State's "proper objective of assuring accuracy and efficiency in the disposition of property at death" (430 US, at p 770). Of course, our statute is not mindless nor totally irrational and a concern for a solid proof of paternity is a legitimate State purpose. But if the court is now required to put teeth into its scrutiny, we are obliged to go beyond the purpose of the statute to a consideration of the rationality of the burden it places on the State's illegitimate children.
A judicial proceeding may promote accuracy, but the difficulties in otherwise establishing paternity do not justify the narrow confines and procedure mandated by our statute. The requirement of an order of filiation made during the lifetime of the father will, ipso facto, exclude a substantial category of illegitimate children from inheritance. If this exclusion resulted from a lack of proof, it might be justifiable. But in reality not obtaining an order of filiation will often result simply from the fact that the putative father is supporting and acknowledging the children as his own. Or, it might well be and often is the product of carelessness or ignorance on the part of those who might institute a proceeding within the statutory limitation, for neither of which should a child suffer. Indeed, ordinarily the order will be obtained only where the natural father is not providing support. The children who are
The question of paternity is a delicate one. Even though the putative father may petition for the order (see Family Ct Act, § 522), this is a burdensome procedure. To require an order of filiation during the lifetime of the father is to demand, at least in the eyes of laymen, a form of adversary proceeding. The instant matter is illustrative. The natural father was supporting petitioners, and had made an acknowledgment of his parenthood as to one of them. In this instance the only purpose served by an order of filiation would be to satisfy a requirement which may have provoked disharmony and which goes beyond what is necessary in these circumstances. To be sure, the State may desire this method of proof, but this is an extreme requirement in view of the consequences. The State may impose a heavy burden, but the statutory procedure required has only a tenuous relation to the quantum of proof demanded. Viewed in proper perspective, it is apparent that the statute places an undue, if not unyielding, burden on those concerned, and thus in light of Trimble it must be concluded that the statute leaves the "middle ground" of what a State may legitimately require and settles on the side of complete exclusion.
In Trimble, the Supreme Court reasoned that a paternity order obtained for purposes of requiring the father to provide support should be sufficient to establish paternity for purposes of allowing an illegitimate child to inherit from a father who dies intestate (see 430 US, at p 772).
Accordingly, if paternity is established, the petition for an accounting should be granted.
Upon reargument: Prior determination of this court affirming the decree of the Surrogate's Court adhered to, with costs.