Birth Certificate, Will, and Pocket Planner Not Enough To Serve As Acknowledgment Of Paternity In Florida Probate

In White v. Marks, a Florida appeals court reviewed whether or not certain writings were sufficient evidence of a Decedent’s acknowledgment of paternity under the Florida Probate Code, and also reviewed when the four-year statute of limitations for paternity actions is applicable in probate.

We have written about paternity in Florida probate litigation before here and here.

The Facts of White v. Marks

Donald Marks passed away in 2018, and his will was submitted to probate.  Marks’ will devised his estate to Joseph White and Darla Hall in equal shares. The will stated:

“I have also intentionally made no provision under this will for my adopted daughter Samantha Nicole Marks, although it is my desire that Joseph White make appropriate provisions for her.”

Nicole petitioned for revocation or probate and for intestate administration of the estate.  Nicole alleged that the will was the product of undue influence and that she was an intestate heir to the estate because there was an acknowledgment of paternity by Decedent under Florida law.

Nicole, admittedly, (1) was not Decedent’s biological daughter, and (2) was never adopted by Decedent.  However, Nicole claimed to be Decedent’s daughter, asserting that Decedent had acknowledged paternity in writing.

Nicole’s mother was pregnant with Nicole at the time she met Decedent, and, despite the fact that Decedent was not Nicole’s biological father, his name was entered on her birth certificate.  Decedent and Nicole’s mother never married, and their relationship lasted less than three years.  After the brief three year period, Nicole met Decedent only two times – once when she was in her early twenties, and again decades later when the decedent was in hospice immediately before his death.

Nicole moved for summary judgment on her claim that as Decedent’s daughter she had standing to contest the will.  At summary judgment, Nicole relied upon (1) the appearance of Decedent’s name on her birth certificate and (2) references to her as an adopted daughter in the Decedent’s will and a notation in a pocket planner to argue that there had been an acknowledgment of paternity under Florida law.

In response, the beneficiaries under the will argued that the applicable statute of limitations barred Nicole’s claim that she was Decedent’s daughter, and that therefore Nicole lacked standing to bring a proceeding to revoke probate and for intestate administration of the estate.  Alternatively, they argued that the written documents relied upon by Nicole were insufficient to establish paternity.

The Florida probate court granted summary judgment, determining that Nicole had standing as a matter of law because the three writings (the birth certificate, will, and pocket planner) were each an acknowledgment of paternity under section 732.108(2)(c), Florida Statutes (2018). In finding for Ms. Marks, the trial court ruled against Appellants on their statute of limitations affirmative defense.

Florida’s Paternity In Probate Statute – Section 732.108

Section 732.108 of the Florida Probate Code provides that for purposes of intestate succession, a person born out of wedlock is a descendant of his or her father if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph.

(c) The paternity of the father is acknowledged in writing by the father.

Here, Nicole argued that she was an intestate heir (in fact, the intestate heir) of her father under section (c), because Decedent had acknowledged his paternity of Nicole in writing.  Nicole relied on the birth certificate, the will, and the notation in the pocket planner in her attempt to establish paternity in the Florida probate of decedent’s estate.

Does The Four-Year Statute Of Limitations Apply When The Action Involves Acknowledgment Of Paternity In Writing?

Yes, there is a four-year statute of limitations, beginning when the individual reaches the age of majority, to any “action relating to the determination of paternity.” § 95.11(3)(b), Fla. Stat. (2018). In 2009, the Florida Legislature amended section 732.108(2)(b), such that the statute of limitations no longer applies to section (b) of 732.108 (establishing paternity by adjudication), but the other sections are still subject to the four-year statute of limitations.

The Florida appeals court stated that:

While there appears to be no case directly addressing the applicability of the statute of limitations to section 732.108(2)(c), which was the provision under which Ms. Marks claimed relief, section 95.11(3)(b) provides that the statute of limitations applies to any “action relating to the determination of paternity.” (emphasis added). Ms. Marks is hard-pressed to assert that her action does not relate to the determination of paternity, considering that section 732.108(2)(c) requires a written acknowledgment of paternity and she seeks to inherit from the estate as Mr. Marks’ daughter. § 732.108(2)(c), Fla. Stat; see also Est. of Smith, 685 So. 2d at 1209 (determining that statute of limitations applies to any paternity action regardless of purpose for which it is brought).

Accordingly, the Court found that the statute of limitations applies to Nicole’s claim, and because she was born in 1970, that her claim was extinguished prior to her initiating the action.

How Does Someone Acknowledge Paternity In Writing Under Florida Law?

Under the prior version of the statute, codified as section 731.29(1), every illegitimate child was an heir of “the person who, in writing, and in the presence of a competent witness, acknowledge[d] himself to be the father.” § 731.29(1), Fla. Stat. (1973). In interpreting the prior version, the Florida Supreme Court found that an informal writing was sufficient to meet the statute, provided the acknowledgment “directly, unequivocally and unquestionably acknowledges the paternity of the illegitimate child, in such terms and under such circumstances as may ‘be construed as a formal acknowledgment of parenthood.’” In re McCollum’s Est., 88 So. 2d 537, 540 (Fla. 1956) (quoting In re Horne’s Est., 7 So. 2d 13 (Fla. 1942)).

Here, the birth certificate, the will, and the pocket planner did not qualify as written acknowledgments of paternity under Florida law.

The birth certificate was not signed by Decedent and without the accompanying required written consent, could not qualify as written acknowledgment under the statute.  Although Decedent referred to Nicole as his adopted daughter in the will and pocket planner, the Court found that neither constituted an acknowledgment of his paternity.  The Court stated:

Because it is undisputed that an adoption did not occur, the references in the will and pocket planner are only understandable as descriptive, rather than direct, unequivocal acknowledgments of paternity. See McCollum’s Est., 88 So. 2d at 540. It is undisputed that Mr. Marks did not undertake parental responsibilities during Ms. Marks’ life. Although Mr. Marks dated Ms. Vitale while Ms. Marks was an infant, he and Ms. Marks did not meet again until she was in her twenties. Nor did Mr. Marks provide her with any financial assistance throughout her life. Such behavior is consistent with the testimony of Ms. Marks that Mr. Marks agreed to have his name placed on the birth certificate to avoid having “unknown” listed as the father. Further, Ms. Marks’ name was misstated under the will, and Mr. Marks directed that she not receive any devise from the estate. When considered with the lack of contact and emotional and financial support, the equivocal nature of the references becomes apparent. Accordingly, we find that the references are insufficient to create a legal relationship.

The Florida appellate court reversed and remanded the summary judgment, finding that the probate court erred in granting summary judgment on standing and in finding that Decedent acknowledged paternity under section 732.108(2)(c), and in rejecting the statute of limitations defenses brought by Appellants.

The Court also engaged in a discussion regarding the appealability of the probate order, finding that the trial court’s finding entitled Nicole recover the entirety of the intestate estate if she succeeded in setting aside the will, and that therefore the order was a determination of heirship and reviewable on appeal.

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