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July. 2022

MA Probate Court judge invalidates voluntary acknowledgment of paternity

A Massachusetts Probate Court judge in a case of first impression invalidated a voluntary acknowledgment of paternity signed and notarized in 2010 by a biological mother and man who knew he was not the father, barring the claim of the woman’s son and declaring he was not a legal heir entitled to inherit from the man’s intestate estate.

Richard M. Novitch, representing the man’s sister who had been nominated as his attorney in fact in conjunction with a Special Personal Representative, also persuaded the judge to annul the marriage between the woman and man due to the man’s lack of capacity to enter a marriage contract at the time of the 2019 civil wedding ceremony, rendering moot the woman’s Complaint for Separate Support. The last time a reported Massachusetts appellate decision annulled a marriage following the death of a spouse was in 1818.

Under Massachusetts law, a voluntary acknowledgment of paternity is considered final and binding unless either signatory rescinds an acknowledgment within 60 days of the date of signing or it is challenged within one year based on fraud, duress, or material mistake of fact.

Nonetheless, the judge – implicitly rejecting the doctrine of adoption by estoppel, recognized only by a handful of states – found that the 2010 voluntary acknowledgment was void because both parties knew at the time they executed the document that it did not accurately reflect the parentage of the child in question and had the man truly intended to adopt the woman’s child, he easily could have done so but did not.

The decedent died intestate in June 2020 and was survived by several siblings.

Mr. Novitch, a partner at the firm, has tried numerous cases in Probate and Family Courts in Massachusetts, and has extensive experience handling complex cases and issues on appeal, including matters before the Massachusetts Supreme Judicial Court and Appeals Court.