Who Gets What? Paternity Issues in Probate

When it comes to inheritance litigation, paternity actions have their own unique challenges, especially in Florida probate proceedings. One of the biggest is that they can be time-barred, depending on when the action commences.

If a man dies without a will, all children born of his current and / or previous marriages are entitled to a share of his estate as determined by the Florida laws of intestate succession. Legally adopted children fall into the same category. Children born out of wedlock, however, do not unless one of the following circumstances applies:

  • The father took part in a marriage ceremony later found to be void
  • His paternity was established in court
  • The father acknowledged his paternity in writing

Any other illegitimate sons and daughters will have to pursue a paternity action if their father dies before they are legally acknowledged as his children. What many of them do not realize is that their claim could be barred by statute.

Florida Statute of Limitations for Inheritance Actions

Under F.S. 95.11(3)(b), a four-year statute of limitations exists for paternity lawsuits, beginning when the child turns 18. This means that if they don’t act before that time period is up, they lose the right to pursue a share of their father’s estate.

The Florida courts have not always agreed on whether or not F.S. 95.11(3)(b) applies to paternity actions in probate proceedings. In the 1996 action Estate of Smith, 685 So.2d 1206, the Florida Supreme Court ruled that it did. In 2009 this ruling was overturned by an amendment to F.S. 732.108(2), which said the four-year limitation did not apply.

Latest Development in Paternity Litigation

For years, one key question regarding the 2009 change to F.S. 732.108(2)(b) remained open. Did it only apply prospectively, or was it retroactive, which could allow previously denied claims to be revived? In a recent case, the 3rd District Court of Appeals finally issued its answer.

The case involved a man born out of wedlock in 1964. When his alleged father died intestate in 2012, he launched a paternity action, although he had turned 18 in 1982. This claimant argued that 2009 change to F.S. 732.108(2) allowed him to revive his claim. The trial court disagreed.

So did the 3rd DCA, which stated that the plaintiff’s paternity claim following his father’s death was time-barred because more than four years has passed since he turned 18 in 1982. The court pointed out that the Florida Legislature did not make the amendment to section 732.108(2)(b) retroactive in its application. Once a claim was extinguished by the applicable statute of limitations, it could not be revived because the defendant had a constitutionally protected property right to be free from the claim.

The message was clear: any illegitimate children who were 22 or older in 2009 are permanently time-barred from adjudicating paternity in a Florida probate proceeding. This is issue is still presently on appeal and while the 3rd DCA’s opinion is final, pending motions remain.

Florida laws of intestate succession can be challenging to understand, especially where adjudicating paternity is concerned. If you require assistance please call the experienced estate planning attorneys at Luis E. Barreto & Associates today.

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Written by Luis E. Barreto

Luis E. Barreto

Luis is a probate and guardianship litigator with over 23 years of experience in the field. Determination of heirs, will contests, breaches of fiduciary duty, removal of personal representatives, guardians and trustees are just some of the types of litigation he addresses. In addition, he administers non-contested estates and guardianships.