
    In the Matter of the Estate of Mario Lalli, Deceased. Robert M. Lalli, Appellant; Rosamond Lalli, as Administratrix of the Estate of Mario Lalli, Deceased, Respondent.
    Argued October 13, 1977;
    decided November 17, 1977
    
      POINTS OF COUNSEL
    
      Morris R. Henkin and Leonard M. Henkin for appellant.
    Limitations imposed by EPTL 4-1.2 on right to inherit of illegitimates as applied to petitioner-appellant herein, as soon acknowledged in writing, are unconstitutional in light of Trimble v Gordon. (Trimble v Gordon, 430 US 762; Dunn v Blumstein, 405 US 330; Matter of Lalli, 38 NY2d 77.)
    
      Leonard A. Weiss for respondent.
    The alternative provided by EPTL 4-1.2 (subd [a], par [2]) which the State of Illinois does not—vis., the "order of filiation”, suffices to protect the New York statute from the "equal protection” challenge pursuant to Trimble v Gordon. (Trimble v Gordon, 430 US 762; Weber v Aetna Cas. & Sur. Co., 406 US 164; Labine v Vincent, 401 US 532; Matter of Flemm, 85 Misc 2d 855.)
    
      Louis J. Lefkowitz, Attorney-General (Irwin M. Strum, Samuel A. Hirshowitz and Suzanne M. McGrattan of counsel), in his statutory capacity under section 71 of the Executive Law. The determination of the Supreme Court of the United States in Trimble v Gordon (430 US 762 [1977]) does not require this court to declare EPTL 4-1.2 to be unconstitutional.
    
      Kalman Finkel, John E. Kirklin, Susan B. Lindenauer, Janet M. Calvo and Jane Greengold Stevens for The Legal Aid Society and another, amici curiae.
    
    In a proceeding to establish the right of an illegitimate child to inherit from his/her father by intestate succession, the State of New York cannot constitutionally bar consideration of any form of proof of paternity which is not imprecise and unduly burdensome. (Trimble v Gordon, 430 US 762; Matter of Anonymous v Anonymous, 25 AD2d 350, 19 NY2d 840, 20 NY2d 742; "Brown" v "White”, 29 AD2d 1054; Matter of Green v Blue, 28 AD2d 628; Matter of Jay v Andrew "Y” 48 AD2d 716; Matter of Dolores D. v Mario N. D., 69 Misc 2d 689; "White” v "Grey”, 26 AD2d 972; Matter of Kiamos v Chiladakis, 25 AD2d 647; People v Guley, 281 App Div 927.)
   OPINION OF THE COURT

Jones, J.

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 US 762). We adhere to our previous decision (38 NY2d 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 US 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 (111 Rev Stat, ch 3, § 12 [1961]; cf. Ill Rev Stat, ch 3, § 2-2 [1976-1977 Supp]). By contrast, under our New York statute the right to inherit depends only on proof that a court of competent jurisdiction has made an order of filiation declaring paternity during the lifetime of the father. (EPTL 4-1.2, subd [a], par [2]).

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. The Supreme Court held unacceptable such a statutory provision which penalized children born of an "illegitimate relationship” between their parents—concluding that the sins of the parents are not to be visited upon their children. There is nothing similar in our statute; it is concerned only with proof of paternity and the establishment of a blood relationship between the father and the child.

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 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 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 [2]). 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 of titles to property passing under intestacy laws” (430 US 762, 771, supra). We know of nothing, and there is nothing in the record, to suggest that our statute was intended as a moral, ethical or social disparagement of illegitimacy or was the product of proponents whose objective, even in small part, was to discourage illegitimacy, to mold human conduct or to set societal norms.

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.

Cooke, J. (dissenting).

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 [2]). Nevertheless, it is respectfully submitted that our statute is likewise unconstitutional in light of Trimble v Gordon (430 US 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 without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws. Because it excludes those categories of illegitimate children unnecessarily, § 12 is constitutionally flawed.” Furthermore, concerning the interests of the States in the accurate and efficient disposition of property, the court commented (p 772, n 14): "Evidence of paternity may take a variety of forms, some creating more significant problems of inaccuracy and inefficiency than others. The States, of course, are free to recognize these differences in fashioning their requirements of proof. Our holding today goes only to those forms of proof which do not compromise the States’ interests. This clearly would be the case, for example, where there is a prior adjudication or formal acknowledgment of paternity. Thus, we would have a different case if the state statute were carefully tailored to eliminate imprecise and unduly burdensome methods of establishing paternity.”

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 voluntarily supported, no matter how compelling the proof, will be absolutely barred if such an order is not obtained.

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). However, the court did not suggest that this is the only method for making this determination. Our statute considers no alternatives and imposes a sine qua non requirement that an order of filiation be obtained during the lifetime of the father (EPTL 4-1.2, subd [a], par [2]). For this reason, in light of Trimble, our statute fails to pass constitutional muster.

Accordingly, if paternity is established, the petition for an accounting should be granted.

Chief Judge Breitel and Judges Jasen, Gabrielli and Wachtler concur with Judge Jones; Judge Cooke dissents and votes to reverse in a separate opinion in which Judge Fuchsberg concurs.

Upon reargument: Prior determination of this court affirming the decree of the Surrogate’s Court adhered to, with costs. 
      
      . As we noted when this case was initially before us, inasmuch as we uphold that provision of the statute which forecloses this appellant’s claim to status as a distributee because no order of filiation was made during the lifetime of his father, we do not reach or consider the challenge to the separate clause of our statute which requires that the paternity proceeding have been instituted "during the pregnancy of the mother or within two years from the birth of the child” (EPTL 4-1.2, subd [a], par [2]; 38 NY2d, at p 80, n).
     
      
      . We observe that this appears to have been the case in Trimble itself. A paternity order had been entered during the lifetime of the father finding Gordon to be the father of the child, Deta Mona (430 US, at p 764). On the facts there would have been no question but that Deta Mona would have been entitled to inherit from her father under the New York statute.
     
      
       This pronouncement by the Supreme Court warrants this observation. This court does not "reach or consider the challenge to the separate clause of our statute which requires that the paternity proceeding have been instituted 'during the pregnancy of the mother or within two years from the birth of the child’ ” because in this matter no order of filiation was made during the lifetime of the father (see p 68, n 1). Nevertheless, it is difficult to ignore the fact that under our statutory scheme a public welfare official may institute a proceeding within 10 years of the birth of the child (Family Ct Act, § 517, subd [b]) for purposes of requiring the father to provide support, and yet the order of filiation emanating from such proceeding would not allow the child to inherit from his or her father unless said proceeding was instituted within two years of the birth of the child (EPTL 4-1.2, subd [a], par [2]; see Matter of Flemm, 85 Misc 2d 855, 862).
     