PRELIMINARY STATEMENT ESTATE OF WALTER OSTAPENKO, Deceased (16-4367)
ESTATE OF WALTER OSTAPENKO, Deceased (16-4367/A&B) — Before the court is the administration proceeding commenced by Vanessa Wojtowicz (“Petitioner”) to appoint her as the administrator for the estate of Walter Ostapenko (“Decedent”), who died intestate on August 19, 2016. The Kings County Public Administrator (“P.A.”) was issued letters of temporary administration, upon the Surrogate’s discretion1. The decision stated that the proofs submitted by the Petitioner were insufficient for the court to determine if the Petitioner was a distributee of the Decedent. This decision and order follows a kinship hearing to determine Petitioner’s status as an alleged distributee of the estate. BACKGROUND Petitioner alleges that she was the sole distributee of the Decedent as his biological non-marital child despite being adopted by her stepfather, Richard Wojtowicz, as a minor in 1987. Before a kinship hearing was scheduled, the Petitioner commenced a subsequent proceeding to revoke the temporary letters of administration issued to the P.A. and to appoint the Petitioner, as the administrator d.b.n. of the Decedent’s estate, File No. 2016-4367/A&B (“Revocation Proceeding”). Upon filing the Revocation Proceeding, the Petitioner cited the P.A. and Richard Wojtowicz, the Petitioner’s adoptive father (her “stepfather”). No objections to the Petitioner’s administration proceeding or Revocation Proceeding have been filed by the P.A. or by anyone purporting to be a distributee of the Decedent. Upon the parties’ consent, a hearing to prove the Decedent’s kinship was held before a court attorney-referee (the “referee”) on April 1, 2019. Counsel appeared in the kinship hearing on behalf of the Petitioner and the P.A. All parties have waived the filing of the referee’s report and have stipulated to the court’s determination of all kinship issues upon the transcript of the hearing testimony and the documents in evidence, pursuant to SCPA §506(6)(c). WITNESS TESTIMONY At the hearing, oral testimony regarding the Decedent’s kinship was given by three disinterested witnesses: Christine Viruet (“Christine”), Rita Rademacher (“Rita”) and Jessica Lemke (“Jessica”), and one interested witness, the Petitioner, Vanessa Wojtowicz. Documentary records relating to the Decedent’s parents, sister, non-marital child, and ex-spouses were admitted into evidence, including an acknowledgment of paternity, birth and death certificates, social security death index records, gravesite records, the petition to terminate paternal rights and adoption records of the Petitioner, and two divorce judgments granted to the Decedent in May 1975 and August 2006. The parties have stipulated to the authenticity and admission of the foregoing documents into evidence on the record and pursuant to a stipulation dated October 24, 2019. Christine is the maternal aunt of the Petitioner and she testified that she met the Decedent in May or June of 1983 in Brooklyn, New York, shortly after the Petitioner was born. Christine stayed with the Decedent and Petitioner’s mother, Dorothy Wojtowicz née Viruet (“Dorothy”), who were living together, but not married, for a month in the family home owned by the Decedent’s mother, Halyna Ostapenko (“Halyna”). Christine stated that the Decedent acknowledged the Petitioner as his child during her stay. Rita is the maternal aunt of the Petitioner, who also testified that she initially met the Decedent in 1983 in Brooklyn, New York, after the Petitioner’s birth. Rita’s second meeting with Decedent occurred in Michigan when he traveled to contest the petition to terminate his paternal rights and adoption of Petitioner by her stepfather. Rita stated that the Decedent did not want to give up his paternal rights to the Petitioner and did not understand why Dorothy commenced the petition since the Decedent sent gifts, money, cards, and outfits to the Petitioner. Rita further stated, that to her knowledge, the Petitioner and the Decedent stayed in contact during his lifetime despite his parental rights being terminated. As to the Decedent’s marital status, Rita stated she knew the Decedent was married and divorced before the Petitioner’s birth. The third witness, Jessica Lemke, a friend of Petitioner for over eighteen years, testified that she knew the Decedent was the Petitioner’s father from conversations with the Petitioner and overhearing calls on speakerphone between the Petitioner and Decedent during holidays, Christmases, and birthdays. She stated that the Petitioner had moved to New York in 2014 to help care for the Decedent and live in the family home. Jessica first met the Decedent in August 2015 in Brooklyn after Halyna’s death. During Jessica’s visit, the Decedent referred to the Petitioner as his daughter, and the Decedent did not mention having any other children. Jessica stated that the Decedent was not married and live alone when she met him in 2015. Petitioner testified that she was the only child of the Decedent, and her paternal grandparents, Halyna Ostapenko and Hryhorij Ostapenko (“Hryhorij”), died July 2015 and December 1998, respectively. Petitioner testified that Halyna and Hryhorij had two children: the Decedent, who died on August 19, 2016, and a daughter, Olga Ostapenko (“Olga”), who died in December 1965. The Decedent and Olga were the only children of Halyna and Hryhorij. Olga died during her honeymoon due to an infection caused by an animal bite and never had any children. Petitioner testified that the Decedent and her mother, Dorothy, were never married, but during his lifetime the Decedent was married twice. Both marriages ended in divorce and neither marriage produced any children. The Petitioner testified that a petition to terminate the parental rights of the Decedent was commenced in Michigan when she was a minor child. The Petitioner testified that the Decedent hired an attorney to oppose the termination of his parental rights, but the court issued an order terminating the Decedent’s parental rights and granting the adoption of the Petitioner to her stepfather. DISCUSSION In order to demonstrate kinship, a party claiming kinship must establish by a preponderance of the evidence i) her relationship to the decedent, ii) the absence of any person with a closer degree of relationship, and iii) the maximum number of persons having the same degree of relationship to the decedent. Matter of Whelan, 93 AD2d 891 (2d Dept 1983), aff’d 62 NY2d 657 (1984). The court finds on the present state of the record that the Petitioner was born the non-marital child of the Decedent as established by the signed instrument acknowledging parentage dated March 31, 19832, see EPTL §4-1.2(a)(2)(B), and the clear and convincing evidence provided by three disinterested witnesses that the Decedent openly and notoriously acknowledged the Petitioner as his own child. See EPTL §4-1.2(a)(2)(C). 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 N.Y. 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 collected. Armena Gayle, Esq., counsel to the Kings County Public Administrator, waives an award for legal services. Decree signed.
