Can DNA Testing Be Used To Disinherit A Potential Heir?

The law allows a potential heir to contest a will or trust to establish the right to inherit by proving paternity. These potential heirs seek to have their claims corroborated by genetic testing. But can DNA testing be used to disinherit a potential heir? Can one sibling seek a judgment that another sibling is the child of another father and therefore a half-sibling and not an heir of the decedent “father”? Does it matter if they were raised together, and paternity was never challenged during the decedent’s lifetime?

DNA tests are legally recognized to be the most accurate method to determine paternity.  The New Jersey Supreme Court has concluded that DNA testing has a high degree of scientific reliability that would enable “few spurious claims” to go undetected. The Court made this finding based on testimony that DNA tests for genetic markers can exclude 99% of those individuals who may be accused of paternity. Wingate v. Estate of Ryan, 149 N.J. 227, 242 (citing Clark v. Jeter, 486 U.S. 456, 474 (1988)).

Under N.J.S.A. 3B:5-10, a parental relationship of parent and child can be established for purposes of determining the right to inherit in the case of intestacy. See In re Matter of the Estate of Thomas, 431 N. J. Super. 22 (App. Div. 2013). Under N.J.S.A. 9-17-45(b), the relationship can be established regardless of time limitations set forth in the Parentage Act. Id. Is there a valid reason to deny genetic testing in a case alleging disinheritance, as opposed to a case alleging the right to inherit?

The purpose of the Probate Code is to determine how a decedent’s assets pass to the decedent’s heirs. The primary concern of the Parentage Act is establishing paternity for purposes of child support. The Parentage Act and the Probate Code are separate statutes. Nevertheless, the Legislature has made efforts to link one to the other that have not directly addressed disinheritance by proof of non-paternity.

In the Matter of the Estate of Castellano, 456 NJ. Super. 510 (App. Div. 2018), the court weighed the statutory presumption “that a child born of a mother in wedlock is presumed to also be the child of her husband, N.J.S.A. 9:17-43(a)(1), against the intestacy laws, which declare — without limitation or qualification — that a child inherits to the exclusion of the decedent’s siblings, N.J.S.A. 3B:5-4(a).” In that case the Appellate Division ruled in favor of the intestacy laws.

Elisa Marie Machiaverna ended a two-year relationship with Douglas Castellano and married Gregory Allen Bock two months later in March 1977. Elisa gave birth to a child seven months later. That child was named Gregory Allen Bock, Jr., and his birth certificate declared that Gregory, Sr. was his father, even though Gregory, Sr. knew he did not father the child, and even though Castellano knew that he did father the child.

Castellano was murdered in 2016. He was not survived by a spouse or other children. He died without a will. A blood sample established that he fathered Gregory, Jr. Castellano’s siblings argued that Gregory Jr. had been born during the marriage of Elisa and Gregory, Sr., and therefore was presumed to be Gregory Sr.’s child. They also argued that Gregory, Jr. had been “equitably adopted”. The court ruled that Castellano’s siblings could only inherit under the laws of intestacy if Castellano died without children.  Because DNA testing established that Castellano had fathered Gregory, Jr., Gregory, Jr. was the sole heir of his estate.  The Appellate Division specifically noted: “It is important to emphasize that we are not here attempting to determine whether, under these circumstances, Gregory, Jr. is entitled to inherit from Gregory, Sr.”

What if Gregory, Jr. had never sought to inherit from Castellano, Gregory, Sr. died intestate, and other children of Elisa and Gregory, Sr. brought an action to disinherit Gregory, Jr.? Should the court order genetic testing? Can someone raised as a child of two parents, whose parentage has never been questioned, be disinherited?

In Wingate v. Estate of Ryan, 149 N.J. 227 (1997), an adult thirty-one-year-old plaintiff filed a complaint pursuant to the New Jersey Probate Code to establish that she and her son were heirs of the decedent.  The administratrix of the decedent’s estate filed a motion for summary judgment to dismiss the plaintiff’s complaint as time-barred pursuant to the statute of limitations in the New Jersey Parentage Act, which requires paternity claims to be filed by the claimant’s twenty-third birthday. The trial court denied the motion.  The Appellate Division reversed, holding that the statute of limitations in the New Jersey Parentage Act applied to the plaintiff’s intestacy action to establish paternity and heirship.  The New Jersey Supreme Court reversed the Appellate Division, holding that the New Jersey Parentage Act statute of limitations does not bar a probate intestacy claim.  The Court based this holding on the interplay between the Parentage Act and Probate Code under New Jersey law and concluded that they are “independent statutes designed to address different primary rights.”  Id. at 238.  The Court explained the differences between the Parentage Act and the Probate Code under New Jersey law:

The purpose of the Parentage Act is to establish “the legal relationship … between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations.” N.J.S.A. 9:17-39. Child support is the major concern under the Parentage Act. The purpose of the Probate Code, on the other hand, is to determine the devolution of a decedent’s real and personal property. N.J.S.A. 3B:1-3. The different purposes the two statutes serve, help to explain why the Legislature contemplated different periods of limitations for filing claims under those statutes. Id. at 239.


In contrast to children who file support claims, which accrue on the date of birth, potential heirs have no right to share in an estate until the death of the decedent.  By definition under the Probate Code, heirs are “those persons … who are entitled under the statutes of intestate succession to the property of a decedent.” N.J.S.A. 3B:1-1. Applying N.J.S.A. 9:17-45(b) to actions under the Probate Code would create a statute of repose that commences on the birth of a potential heir, rather than a statute of limitations running from the decedent’s death. Indeed, the Parentage Act provides that it does not affect the time within which an heirship claim must be filed. N.J.S.A. 9:17-45(f). That section provides further evidence that claims under the Probate Code and Parentage Act are subject to independent limitations periods. To hold otherwise would grant heirship immunity to parents of children who are born out of wedlock and do not establish parentage before reaching age twenty-three. That would terminate many claims before they accrue. E.A. Williams, Inc. v. Russo Dev. Corp., 82 N.J. 160, 167, 411 A.2d 697 (1980).  To allow that to occur would be contrary to the Legislature’s recognition in 1991 that “a person is the child of the person’s parents regardless of the marital state of the person’s parents.” N.J.S.A. 3B:5-10.  Id. At 239-240.

The NJ Supreme Court in In re Trust Created by Agreement Dated Dec. 20, 1961, 166 N.J. 340, cert. denied sub nom., Ryan v. Johnson, 534 U.S. 889, 122 S.Ct. 203, 151 L.Ed.2d 143 (2001), “interpret[ed] Wingate and the amendatory enactments more narrowly to apply principally to parties seeking to establish or confirm their parentage, as opposed to those seeking to defeat the established parentage of others.” The Court reversed the decision of the Appellate Division “that third parties in a like proceeding may collaterally attack an adjudication of parentage made in an earlier divorce action.” The Court ruled that the prior determination of parentage barred the probate action seeking to disestablish paternity.  The Court noted that the putative father had acknowledged paternity in a sworn statement in a divorce/paternity action and failed to contest six trust accounting proceedings in which he was identified as the father.  The Court also found that the settlor’s probable intent to include the person at issue as a permissible beneficiary was apparent on the face of the trust document, which named her, as compared to a similar trust made in 1963 that did not name her.

In M.A. v. Estate of A.C., 274 N.J. Super. (Ch. Div. 1993), the court recognized that DNA testing can be the best evidence to exclude paternity as much as to include it. A minor brought a paternity action against the Estate of A.C. to establish that he was A.C.’s son.  A.C. died intestate, survived by his three adult children and the mother of his three adult children.  M.A. sought an order to compel genetic testing of A.C.’s three adult children and their mother.  The Chancery Division reviewed the Parentage Act and determined that the Parentage Act “proposes the existence of an alleged living father” and, in circumstances where the father is no longer living, the Parentage Act does not purport to prohibit testing.  Id. at 247-48.  Furthermore, the Court held that DNA would conclusively answer the paternity question:

It is clear from these experts that DNA testing would be helpful to the Court in determining whether the decedent is M.A.’s biological father. It makes the establishment of paternity an objective finding of fact rather than a self-serving credibility contest. It may provide conclusive evidence that the decedent is not M.A.’s biological father and be the best evidence for the heirs that the decedent was falsely accused. See Tipps v. Metropolitan Life Insurance Company, 768 F. Supp. 577 (S.D.Tex. 1991). (where DNA blood testing of decedent’s family members in order to reconstruct his genetic make-up and thus determine paternity excluded the decedent as infant plaintiff’s biological father). It may produce relevant evidence which can be considered by the trier of fact, with other evidence in evaluating M.A.’s claim.  Id. at 251-52.

The Chancery Division required the non-parties, i.e., A.C.’s sons and the mother of his children, to provide a DNA sample because, as parties in interest and heirs to the estate under administration, their rights would be affected by the results of the DNA testing.  Id. 254.

Genetic testing in a probate matter can overcome the presumptions in the case of a child born during a marriage:

In this case, the child was born while the parties were married. Thus, he was presumed to be defendant’s son until the DNA test showed otherwise, and defendant was responsible for contributing toward the child’s care and support. See N.J.S.A. 9:17-39 (declaring that the “parent and child relationship” confers or imposes rights, privileges, duties and obligations). Those statutorily recognized rights, privileges, duties and obligations cease upon the determination of non-paternity, through genetic testing or other clear and convincing proof rebutting the presumption. See, e.g., Monmouth County Div. of Soc. Servs. v. P.A.Q., 317 N.J. Super. 187, 198, 721 A.2d 738 (App. Div. 1988)  (relieving putative father later determined not to be biological father from both continuing support obligation and accumulated arrearages, but denying, on procedural grounds, claim for refund of past payments).

J.S. v. L.S., 389 N.J. Super. 200, 204 (App. Div. 2006).

Should genetic testing be ordered in a matter involving an attempt to disinherit someone? Presumptions in the law formerly aided in this determination of parentage, but now there is better evidence, i.e., genetic testing.  In In re Estate of Thomas, 431 N. J. Super. 22 (App. Div. 2013), the Court ordered disinterment of the deceased as part of the inquiry into the right to an inheritance. Genetic testing is much less extreme and unobtrusive. If knowing the truth is important, then testing can provide the answer.

Learn more about:  Estates & Trusts Litigation

**  Reprinted with permission from the March 21, 2022, issue of the New Jersey Law Journal. Further duplication without permission is prohibited. All rights reserved. © 2022 ALM Media Properties, LLC.

More PR&A Results

Sign up to PR&A News

Be the first to know about firm news, articles, and announcements!

  • This field is for validation purposes and should be left unchanged.