McGuire: Surrogate’s Courts May Compel Sibling DNA Testing to Establish Nonmarital Parentage Even in Testate Estates

Introduction

This commentary analyzes the Appellate Division, Fourth Department’s decision in Matter of McGuire (2025 NY Slip Op 04398), a significant estates and trusts ruling clarifying the scope of Surrogate’s Court authority to compel nonconsensual DNA testing of a decedent’s known child to establish the parentage of an alleged nonmarital child. The case squarely addresses whether the genetic testing mechanism in EPTL former 4-1.2(a)(2)(C)—traditionally housed in the intestacy article—may be invoked in a probate (testate) context and, if so, from whom DNA may be compelled. The Court’s answer: yes, it applies even when the decedent left a will; and yes, testing can be compelled from a sibling when the decedent’s own biological material is unavailable.

Background and Parties

Decedent: Francis J. McGuire, died July 7, 2020, survived by seven known children (six biologically related respondents).
Estate posture: Decedent left a will; probate was granted in March 2021. The will did not specifically bequeath to his children; the family business passed outside the will.
Petitioner: Jordan A. Tripi claimed in January 2023 to be decedent’s nonmarital biological child, filing a notice of claim under SCPA 1803 and commencing a proceeding under SCPA 1809 to determine her claim. Her claim was based on her mother’s later-admitted affair with decedent around the time of conception and corroboration from consumer ancestry DNA results.
Relief sought: An order compelling a known child of the decedent (one of the respondents) to submit to DNA testing to assess whether decedent was petitioner’s biological father.
Opposition: Most respondents argued the Surrogate lacked authority, that testing was unnecessary because petitioner purportedly could not inherit, and that privacy concerns outweighed the request.

Summary of the Judgment

The Appellate Division unanimously affirmed the Surrogate’s Court’s order that, upon renewal and reargument, adhered to its prior determination compelling nonconsensual DNA testing of one respondent for the limited purpose of determining whether decedent is the petitioner’s biological father.

Appeal No. 1 dismissed as superseded by the later order entered on renewal and reargument.
Authority confirmed: The Surrogate properly relied on EPTL former 4-1.2(a)(2)(C), the court’s equity jurisdiction (NY Const art VI, § 12; SCPA 201), and CPLR 3101 to compel genetic marker testing in a probate context.
Sibling testing allowed: The 2010 amendments to EPTL 4-1.2 broadened genetic testing beyond samples from the putative father to include close relatives; legislative history supports testing “of the father (or close relative at any time).”
Discretion properly exercised: Applying the Poldrugovaz factors, the Surrogate did not abuse discretion in ordering minimally invasive identity-only testing, given corroborating affidavits and ancestry results and the unavailability of the decedent’s DNA.
Privacy law not a bar: Civil Rights Law § 79-l permits genetic testing and disclosure pursuant to a court order; the Surrogate must still implement safeguards to confine testing and use to identity.

Detailed Analysis

Precedents and Authorities Cited

EPTL former 4-1.2(a)(2)(C): At decedent’s 2020 death, the statute allowed nonmarital parentage to be established by clear and convincing evidence, “which may include” evidence derived from a genetic marker test or open and notorious acknowledgment. Because decedent did not know of petitioner, acknowledgment was unavailable; genetic testing was effectively the only path.
Cross-references showing application in will contexts: EPTL 2-1.3(a)(3), 3-3.3(b), and 5-4.5 incorporate the 4-1.2 definition of nonmarital child, demonstrating that parentage determinations under 4-1.2 reach beyond intestacy and into testamentary regimes.
Constitutional and statutory equity jurisdiction: NY Const art VI, § 12(d)-(e) and SCPA 201(3) confer “full and complete general jurisdiction in law and in equity” on Surrogate’s Courts to administer estates and craft appropriate relief. The Court relied on this structural grant to authorize shaping relief—including compelled testing—consistent with 4-1.2’s evidentiary pathway.
CPLR 3101(a) and SCPA 102: CPLR disclosure rules apply in Surrogate’s Court unless SCPA provides otherwise. CPLR 3101’s “material and necessary” standard supports discovery orders for genetic testing linked to determining distributee status.
2010 Amendments to EPTL 4-1.2: The Legislature removed earlier language that limited testing to samples taken from the putative father during life (former 4-1.2[a][2][D]). The new phrasing—allowing proof by “a genetic marker test”—and legislative history explicitly contemplate testing “the father (or close relative at any time).”
Sibling-testing case law:
- Matter of Sandler, 160 Misc 2d 955 (Sur Ct, NY County 1994): No express prohibition on compelling testing of relatives.
- Matter of Gaynor, 13 Misc 3d 331 (Sur Ct, Nassau County 2006); Matter of Abramaitis, 2011 NY Slip Op 33234(U) (Sur Ct, Nassau County 2011): Courts have ordered sibling testing to establish parentage.
Standard for authorizing testing: Matter of Poldrugovaz, 50 AD3d 117 (2d Dept 2008), and Matter of Betz, 74 AD3d 1459 (3d Dept 2010) set out a multi-factor reasonableness framework for posthumous/inheritance DNA testing.
Identity-only testing vs. broad genomic inquiries: Rogers-Duell v Ying-Jen Chen, 42 Misc 3d 291 (Sup Ct, Albany County 2013), distinguishes ubiquitous, reliable identity testing from broad, unspecified genetic analysis that could reveal sensitive health/genomic information.
Standing and necessary party principles: SCPA 1403(1)(a), SCPA 1410, and Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82, 95 (2008), recognize that a distributee has standing to participate in and object to probate and to seek will construction.
Exhumation disfavored: Matter of Currier (Woodlawn Cemetery), 300 NY 162 (1949), and Yome v Gorman, 242 NY 395 (1926), underscore the burdens and limits on exhumation, favoring less intrusive alternatives like sibling testing when the decedent’s tissue is not available.
Preservation doctrine: Arguments that respondents were nonparties who had not put their genetic condition in issue were unpreserved for appellate review (Sky v Catholic Charities of Buffalo, NY, 194 AD3d 1417; Ciesinski v Town of Aurora, 202 AD2d 984).
Procedural supersession: The prior order was superseded by the later order entered on renewal/reargument; the first appeal was dismissed accordingly (Loafin’ Tree Rest. v Pardi, 162 AD2d 985 [4th Dept 1990]).
Civil Rights Law § 79-l: Generally requires consent for genetic testing and protects confidentiality, but expressly permits testing and disclosure pursuant to a court order from a court of competent jurisdiction.

Legal Reasoning

1) EPTL 4-1.2 applies in probate matters, not just intestacy

The respondents’ narrow reading—that 4-1.2 is confined to intestate succession because it sits in the intestacy article—was rejected. The Court pointed to multiple will-related EPTL provisions that explicitly import 4-1.2’s definition of “nonmarital child,” confirming a cross-article function. That structure presupposes courts must determine nonmarital parentage using 4-1.2 even when a will exists. Practice commentaries reinforce this view.

2) Surrogate’s equity and discovery powers support compelled testing

Surrogate’s Courts possess constitutional and statutory equity jurisdiction to “make a full, equitable and complete disposition of the matter by such order or decree as justice requires.” That authority, coupled with CPLR 3101’s broad discovery standard (via SCPA 102), empowers the court to compel a genetic marker test where parentage is materially in dispute and determinative of distributee status, standing, and participation in the estate proceeding.

3) 2010 statutory reforms authorize sibling testing

Earlier iterations of EPTL 4-1.2 focused on blood samples from the putative father taken during life. The 2010 amendments removed that limitation, broadening admissible genetic proof to “a genetic marker test.” Legislative history explicitly contemplates testing “close relative[s] at any time.” The Court read this evolution to permit compelled testing of siblings when the decedent’s own DNA is unavailable, aligning with prior Surrogate’s Court practice.

4) Discretion properly exercised under Poldrugovaz

Applying the totality-of-the-circumstances framework, the Court affirmed the Surrogate’s measured exercise of discretion:

Reasonable possibility of a match: Petitioner provided more than bare allegations: her mother’s affidavit admitting a sexual relationship with decedent around conception and corroborating consumer ancestry DNA results linking petitioner to decedent’s family.
Practicability and source of sample: No preserved tissue from decedent; exhumation would likely fail or be disfavored. A saliva sample from a sibling is simple and noninvasive.
Reliability safeguards: The Surrogate limited the testing to identity-only parentage confirmation, which is scientifically accepted and routine.
Privacy and religious concerns: The court balanced respondents’ privacy interests against petitioner’s interest in ascertaining parentage, noting that identity-only testing does not intrude into health or predisposition data and that the factual context had already partially displaced privacy around the affair and possible paternity.

5) Civil Rights Law § 79-l does not bar court-ordered identity testing

While § 79-l protects against nonconsensual genetic testing and unauthorized disclosure, it expressly allows both when ordered by a court of competent jurisdiction. Because the Surrogate had jurisdiction and lawfully exercised it, § 79-l poses no barrier. The Court nevertheless emphasized the need for the Surrogate to continue protecting privacy, including limiting the scope of testing and use of results.

6) Standing and estate administration stakes

If petitioner proves nonmarital child status by clear and convincing evidence, she becomes a distributee with rights to participate in probate, object to the will, and seek construction. Thus, the testing bears directly on necessary-party status under SCPA 1403 and on the integrity of the probate proceeding itself.

Impact and Implications

For Surrogate’s Courts and practitioners

Confirmed jurisdictional breadth: Surrogate’s Courts statewide may draw on their equity powers and CPLR discovery to compel genetic marker testing to resolve parentage in both intestate and testate estates.
Sibling testing is viable: When a decedent’s DNA is unavailable, courts may order minimally invasive testing of siblings, consistent with 2010 legislative reforms and prior case law.
Structured analysis: Expect courts to expressly address Poldrugovaz factors. Counsel should develop the record on each factor—especially the reasonable likelihood of a genetic match and the practicality of noninvasive sampling.
Privacy management: Orders will likely limit testing to identity-only analysis, include chain-of-custody safeguards, and restrict dissemination, aligning with § 79-l’s confidentiality regime.

For litigants asserting nonmarital parentage

Proof threshold matters: Affidavits from knowledgeable witnesses and corroboration (including consumer ancestry matches) can satisfy the “reasonable possibility” prong for ordering testing, though ultimate parentage still requires clear and convincing evidence.
Pathway to standing: A credible parentage claim can unlock distributee status, enabling objections to probate and will construction requests even where much of the estate passed outside the will.

For respondents and estate planning

Opposition strategy: Privacy objections carry less weight against identity-only testing ordered by a court. Preservation arguments must be raised in Surrogate’s Court or risk being unreviewable on appeal.
Estate documentation: Practitioners may consider whether and how to preserve decedent DNA samples in sensitive matters, mindful of ethical and statutory constraints, to reduce the need for relative testing or exhumation disputes.

Complex Concepts Simplified

Nonmarital child: A person born to parents who were not married to each other. Under EPTL 4-1.2, such a child can inherit from the father if parentage is proven by clear and convincing evidence (e.g., genetic marker test or open and notorious acknowledgment).
Distributee: A person entitled to share in a decedent’s estate if there is no will; distributee status also affects who must be notified and who may participate in probate of a will.
Probate vs. intestacy: Probate administers estates under a valid will; intestacy applies when there is no will. McGuire confirms that 4-1.2 parentage rules inform rights in both settings.
SCPA 1803 and 1809: Section 1803 covers presenting claims against an estate. Section 1809 authorizes proceedings to determine such claims in Surrogate’s Court.
Clear and convincing evidence: A high evidentiary standard requiring that the claim be highly probable.
Genetic marker test (identity-only): DNA analysis limited to determining biological relationships (e.g., parent-child), not broad genomic data about health or predispositions.
Equity jurisdiction: The court’s power to craft fair, tailored remedies (e.g., ordering narrowly scoped DNA testing to resolve a critical parentage issue).
Necessary party: Someone whose rights may be directly affected by the proceeding and who must be included to ensure a complete adjudication.
Renew and reargue; superseding order: When a court grants leave to renew/reargue and issues a new order, that order supersedes the prior one; appeals from the earlier order are typically dismissed.

Conclusion

Matter of McGuire decisively affirms that Surrogate’s Courts have the authority to compel nonconsensual DNA testing of a decedent’s known child to determine the parentage of an alleged nonmarital child—even in estates governed by a will. Grounded in EPTL former 4-1.2(a)(2)(C), reinforced by the court’s equity jurisdiction and CPLR discovery, and informed by the 2010 statutory broadening of acceptable genetic proof, the decision validates sibling testing where the decedent’s DNA is unavailable. The Court’s careful application of the Poldrugovaz factors and its emphasis on identity-only testing strike a measured balance between a claimant’s right to establish familial status and the privacy interests of existing family members, all within the framework of Civil Rights Law § 79-l.

Practically, McGuire will influence parentage litigation in estate proceedings by: (1) clarifying that 4-1.2’s parentage mechanisms operate across probate and intestacy; (2) endorsing sibling DNA testing under court control; and (3) setting out a road map for evidentiary and privacy considerations. For courts and practitioners alike, the case provides a comprehensive blueprint for handling contested nonmarital parentage claims that hinge on posthumous genetic proof.