University of St. Thomas Law Journal

Unexpected Heirs: Direct-to-Consumer DNA Testing and the Risks of Dying Intestate

Asher Z. Introlegator*

I’ve been doing genealogy as a hobby for nearly two decades now. When I started circa 2007, DNA tests—as a commercially viable methodology—were just beginning to take off.1 Never could I have imagined the potential of genetic genealogy. While many of us are familiar with its use by law enforcement—particularly to solve decades-old murder cases2—a more novel and lesser known application is emerging in estate disputes.3 Direct-to-consumer DNA testing exposes how fragile traditional assumptions about parentage and intestacy can really be, making proactive estate planning more important than ever.

Take the case of Carmen Thomas from Lexington, Massachusetts.4 She knew merely that the name of her father was “Joe Brown.”5 Upon taking a direct-to-consumer DNA test purchased through 23andMe, Thomas had a match with a woman named Kali Brown.6 Based on the test, the website estimated that the two were likely half-sisters.7 Thomas messaged Brown; Brown replied, giving Thomas her phone number.8 At first, both were overjoyed.9 Indeed, Brown’s father was a man named Joe Brown, although he had passed away.10 Thomas eventually met Brown in person, as well as her sister, Abby Brown, and their mother, Kristin Eckhardt.11 After a month of good feelings, Kali Brown expressed to Thomas via text message that the sisters wanted to take a break, citing their mental health as the primary motivation.12 Thomas replied to the effect that this made sense to her and that she would give the family their space.13

In 2024, Thomas decided she wanted to honor the anniversary of her father’s death.14 In attempting to locate the date online, she stumbled upon a lawsuit in which Kristin Eckhardt—her father’s widow—in her capacity as the personal representative of Joe Brown’s estate, had sued two doctors for medical malpractice in relation to her husband’s death.15

What Thomas discovered was that, in late April 2023—only days after Kali’s text asking for space—a jury had returned a $28 million verdict against the doctors: $1 million to the estate for Joe’s pain and suffering, and $9.5 million to Kali and Abby for past and future damages.16 Two weeks later, the parties settled for an undisclosed amount.17 The timing was striking. Jurors had been empaneled on April 4, 2023; Kali’s text came three days later; and evidence in the wrongful death trial began on April 10—the same day Thomas sent her measured reply hoping that the family would find “clarity, healing, and inner peace.”18 Thomas did not appear on the verdict form as next of kin. Neither did Eckhardt—a detail which, together with other admissions in the record, suggested that she and Joe had never actually married.19

In February 2024, Thomas filed a six-count verified complaint in Essex County Superior Court, alleging unjust enrichment, imposition of a constructive trust, intentional interference with inheritance or expectancy, breach of fiduciary duty, conversion, and equitable accounting.20 Her theory drew on two separate Massachusetts statutes. Under the Massachusetts Wrongful Death Statute, where a decedent leaves no surviving spouse, damages pass “to the use of the next of kin,”21 which Thomas argued necessarily included her as Joe’s biological daughter. And because Joe had died intestate, Thomas contended that she was also entitled to a share of the estate itself, which Massachusetts law distributes, in the absence of a surviving spouse, “to the decedent’s descendants per capita at each generation.”22 The heart of the claim against Eckhardt, however, was the fiduciary-duty theory: that Eckhardt, as personal representative, had a duty to identify Thomas to the estate’s trial counsel, to include her on the verdict form, and to give her notice of both the probate and wrongful death proceedings—and that her failure to do any of those things deprived Thomas of her rightful share.23 According to defense counsel, the case was ultimately resolved in the Brown family’s favor, though the terms were not disclosed.24

Part of the solution to this problem, given the ubiquity of direct-to-consumer DNA tests, may lie not in the court system, but rather in the providers’ terms and conditions. For example, in August 2025, Ancestry updated its Terms of Service: “In exchange for access to the Services, you agree . . . [n]ot to use the Services in connection with any law enforcement investigation or judicial proceeding.”25 In another section, the Terms state: “In addition to the requirements in Section 1.3 above, you also agree . . . [n]ot to use information obtained from the DNA Services (including any downloaded DNA Data), whether in whole, in part, or in combination with any other database or service, for any medical, diagnostic, law enforcement, or paternity testing purpose, [or] in any judicial proceeding. . . .”26 Other providers have yet to follow Ancestry’s lead, but it wouldn’t be surprising if they chose to do so.

However, serious practical concerns exist with how exactly Ancestry or any other provider could practically enforce such terms. Simply put, how could Ancestry know if an individual downloads their DNA test, uploads it to another website, and discovers that their birth parent recently died intestate? If the DNA match leads to a civil suit (like in the Thomas case), how is a court to know that the provider’s terms of service preclude the use of the DNA in the suit? And perhaps most importantly, would a court, in a separate suit, even uphold the terms of service? All of these questions point out serious flaws in this approach to the problem; until more substantial litigation ensues, the answer will remain unknown.

Ultimately, the most reliable solution is the least novel one: estate planning. While most people don’t enjoy contemplating their own mortality, the fact remains that leaving a mess to one’s descendants bears the potential to cloud one’s legacy after they do indeed pass away. While it’s a difficult conversation to initiate, many professionals—some speaking from personal experience—advise heirs apparent to discuss these matters with their parents.27 Another practical measure that estate planning attorney in particular may wish to embrace for those being proactive and creating estate plans is to be careful about their terminology.28

In particular, the terms “children” and/or “descendants” can prove problematic.29 A sounder practice is to make bequests to discrete individuals by name.30 One practice I myself have seen is to define early on in the will that the terms “children” and/or “descendants” apply to only to the individuals named in the section—nobody else. Here in Minnesota, the probate code provides specific definitions for the terms “genetic father,”31 “genetic mother,”32 and “genetic parent.”33 However, the intestacy provisions of the probate code also essentially provide that where a child is not adopted, “a parent-child relationship exists between a child and the child’s genetic parents, regardless of the parents’ marital status.”34 Accordingly, “if a parent-child relationship exists or is established under this part, the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession.”35

While estate disputes arising from DNA rarely produce the result borne in the Thomas case, unexpected litigation can easily escalate what is already an unpleasant experience—the probate process, regardless of whether the decedent died testate or intestate—into a nightmare. The claim brought by the previously unknown putative heir nevertheless prolongs the process. And more practically, it costs money. However, while this type of occurrence may become relatively more prevalent, the best solution is nothing new: a good, rock-solid estate plan.

* Asher Z. Introlegator, J.D. Candidate, University of St. Thomas School of Law Class of 2027 (Associate Editor).

  1. See generally Blaine Bettinger, How Big Is the Genetic Genealogy Market?, The Genetic Genealogist (Nov. 6, 2007), https://thegeneticgenealogist.com/2007/11/06/how-big-is-the-genetic-genealogy-market/ [https://perma.cc/37CT-3CFZ]. ↩︎
  2. Laurel Wamsley, In Hunt for Golden State Killer, Investigators Uploaded His DNA to Genealogy Site, NPR (Apr. 27, 2018, 19:31 ET), https://www.npr.org/sections/thetwo-way/2018/04/27/606624218/in-hunt-for-golden-state-killer-investigators-uploaded-his-dna-to-genealogy-site [https://perma.cc/BC8Y-SHY6]. ↩︎
  3. Pat Murphy, DNA Test Connects Half-Sisters, Spawns Payout Fight, Minn. Lawyer (Feb. 27, 2024), https://minnlawyer.com/2024/02/27/dna-test-connects-half-sisters-spawns-payout-fight/ [https://perma.cc/36SS-EXQW].         ↩︎
  4. Verified Complaint, Thomas v. Eckhardt, No. 2477-CV-00130A (Mass. Super. Ct. Essex Cnty. Feb. 8, 2024). ↩︎
  5. Id. ¶ 7. ↩︎
  6. Id. ¶ 9–14. ↩︎
  7. Id. ¶ 14. ↩︎
  8. Id. ¶ 15–16. ↩︎
  9. Id. ¶ 15–28. ↩︎
  10. Id. ¶ 18. ↩︎
  11. Id. ¶ 22–24. ↩︎
  12. Id. ¶ 28. ↩︎
  13. Id. ¶ 29. ↩︎
  14. Id. ¶ 32. ↩︎
  15. Id. ¶ 33–34. ↩︎
  16. Id. ¶ 35–39. ↩︎
  17. Id. ¶ 40. ↩︎
  18. Id. ¶ 29, 38. ↩︎
  19. Id. ¶ 55–83. ↩︎
  20. See id. ↩︎
  21. Mass. Gen. Laws ch. 229, § 1(4) (2024). ↩︎
  22. Mass. Gen. Laws ch. 190B, § 2-103(1) (2024). ↩︎
  23. See Verified Complaint, Count IV. ↩︎
  24. See Ashlea Ebeling, Hash Out the Inheritance Now, or Fight Your Family Later, Wall St. J. (Apr. 8, 2024, 21:00 ET), https://www.wsj.com/personal-finance/hash-out-the-inheritance-now-or-fight-your-family-later-5fd836b9 [https://perma.cc/K58D-CAHJ] (quoting defense counsel Joseph D. Lipchitz). ↩︎
  25. Ancestry Terms and Conditions, Ancestry, https://www.ancestry.com/c/legal/termsandconditions [https://perma.cc/V75L-ALS4] (last visited Apr. 14, 2026); Thomas MacEntee, Ancestry Terms and Conditions Update: New Restrictions on Law Enforcement and DNA Usage, Genealogy Bargain$ (Nov. 24, 2025), https://genealogybargains.com/ancestry-terms-and-conditions-update/ [https://perma.cc/U26W-69PD]. ↩︎
  26. Ancestry, supra note 25. ↩︎
  27. Ebeling, supra note 23. ↩︎
  28. See DNA Tests and Estate Planning, ElderLawAnswers (Feb. 17, 2026), https://www.elderlawanswers.com/dna-tests-and-estate-planning-21430 [https://perma.cc/Y5BL-B93K]. ↩︎
  29. Id. ↩︎
  30. Id. ↩︎
  31. Minn. Stat. § 524.1-201(23) (2024). ↩︎
  32. Minn. Stat. § 524.1-201(24) (2024). ↩︎
  33. Minn. Stat. § 524.1-201(25) (2024). ↩︎
  34. Minn. Stat. § 524.2-117 (2024). ↩︎
  35. Minn. Stat. § 524.2-116 (2024). ↩︎

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