Paternity in Probate Litigation

Establishing paternity in probate proceedings is a common issue, especially with the widespread availability of inexpensive and highly reliable DNA testing.  The rules for establishing paternity in Florida probate proceedings, however, have a number of hurdles, some of which intentionally deny biological paternity from controlling the outcome.

Florida Probate Paternity Statute

The starting point for paternity determinations in probate is found at section 732.108, Florida Statutes (2011), which provides that paternity for children born out of wedlock can be established as follows: 

(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.

If there is an adjudication of paternity, prior to the death of the father, it will likely have taken place in the family courts, whereas an adjudication of paternity after the death will most likely end up in the probate courts. Section 732.108 permits the probate courts to adjudicate paternity rights which have not already been adjudicated in another proceeding.

Section 732.108 does not permit the probate court to address paternity issues after a prior paternity determination in family court or elsewhere.  Instead, a litigant is required to go back to the court making the original paternity determination. In Glover v. Miller, 947 So.2d 1254, (Fla. 4th DCA 2007), a probate court addressed this very issue with regard to a party’s right to contest a prior paternity adjudication. 

Because any determination of paternity will involve many other parties and have effects more far reaching than a mere adjudication of the biological connection between Jerrod and Glover, we are not convinced that such a determination can and should be made as part of the probate proceedings where the only issue to be determined is intestate succession. We agree with the trial court that in order for Glover to assert a right as an heir, the existing judgment of paternity would have to be vacated. A child cannot have two legally recognized fathers.

Acknowledgment in writing may be in the form of a birth certificate, affidavit, or other writing such as a beneficiary designation under a life insurance policy. There is no requirement that the writing take on any particular formality. When faced with the question of whether eyewitness testimony should be required to authenticate writings of a father acknowledging a child, the court in In re: Estate of Jerrido, 339 So.2d 237 (Fla. 4th DCA 1976) refused to require such evidence.  The Florida live birth form, for example, requires the signature of the father if the mother and father are not married to each other at the time of birth.  

The applications in question upon acceptance by the life insurance carriers were incorporated into the policies the carriers issued and became part of those policies. Because of this incorporation, the applications became prima facie evidence of their own authenticity, including those portions of the applications bearing the signatures of witnesses.

Limitations on DNA Evidence

As discussed in a recent article in the New York Times, the use of DNA evidence has become very liberalized to the extent that privacy rights are trumped in order to seek out the identity of criminals.  However, probate courts have taken a more conservative approach in refusing to permit DNA evidence to identify true biological parents when paternity has already been established pursuant to 732.108. 

In Glover v. Miller, the Court refused to consider DNA evidence, which would have confirmed the child’s biological father, because there had been a prior adjudication of paternity for another man before the child’s death.

Section 732.101(2) provides that the decedent’s date of death is the event vesting the heirs’ rights to intestate property. At the date of Jerrod’s death, Glover was not considered Jerrod’s father for purposes of intestate succession, because he never married Jerrod’s mother, was never adjudicated to be his father, and never acknowledged in writing that he was Jerrod’s father. In contrast, Miller was Jerrod’s father for purposes of intestate succession because he was adjudicated to be Jerrod’s father. Thus, Miller’s rights vested on Jerrod’s death because he is Jerrod’s father by a paternity judgment. Jerrod was a lineal descendant of Miller within the meaning of section 732.108(2)(b), so he is an heir for purposes of section 733.301(1)(b)3.

In Holmen v. Holmen, 697 So.2d 866 (Fla. 4th DCA 1997), the trial court refused to consider DNA evidence of paternity, finding that the decedent’s written acknowledgment of the child was sufficient proof to settle the issue. On appeal, the issue was whether the rebuttable presumption of paternity in family law proceedings (section 742.10) should be applicable in probate proceedings. The appellate court refused to apply the standard in probate proceedings.

The appellants, who contested the petition, argued that the decedent’s affidavit created only a rebuttable presumption. They wanted the opportunity to demonstrate by scientific testing and other evidence that the decedent was not in fact the father of the child. They relied on section 742.10(1), which provides:

(1) This chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock. When the establishment of paternity has been raised and determined within an adjudicatory hearing brought under the statutes governing inheritance, dependency under workers’ compensation or similar compensation programs, or vital statistics, or when an affidavit acknowledging paternity or a stipulation of paternity is executed by both parties and filed with the clerk of the court, or when a consenting affidavit as provided for in s. 382.013(6)(b) is executed by both parties, it shall constitute the establishment of paternity for purposes of this chapter. If no adjudicatory proceeding was held, a voluntary acknowledgment of paternity shall create a rebuttable presumption as defined by s. 90.304, of paternity § 742.10(1), Fla. Stat. (1995) (emphasis added).

In In re Estate of Smith, 685 So.2d 1206, 1208 (Fla.1996), the Supreme Court agreed with the conclusion of the first district and held that “paternity may be established in the course of probate proceedings.” The first district had concluded that section 732 does not require that an adjudication of paternity in probate be by an action pursuant to chapter 742, explaining:

To the contrary, it would seem to us that inclusion in the Probate Code, chapter 732, of a provision allowing intestate succession by the illegitimate child of a father indicates that the issue of paternity may be properly adjudicated in the probate proceeding.

. . .

Based on Estate of Smith, we agree that chapter 732 controls in this probate proceeding. The decedent’s written acknowledgment in this case thus establishes paternity for purposes of intestate succession. . . .

Statute of Limitations

Pursuant to section 95.11, “within four years . . . an action relating to the determination of paternity, with the time running from the date the child reaches the age of majority” must be filed to prevent being barred under this section.”

Does this serve as a bar to a proceeding brought in probate? At one time the caselaw said yes, but now due to an amendment to the probate code the answer is “No.” Section 723.108(b) was recently amended to address this very issue and now states as follows: “Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph.”

Prior to the amendment, the caselaw on this issue held that statute of limitations did apply to probate proceedings to determine heirship, but only to those proceedings requiring an adjudicatory hearing.  

The court in Thurston v. Thurston, 777 So.2d 1001 (Fla. 5th DCA 2001) had addressed the applicability of section 95.11 to the predecessor statute (section 731.29) to section 732.108 and further discussed the legislative intent of allowing inheritance rights to be established without an adjudicatory proceeding. Section 731.29 read as follows:

Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents’ kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.

The court in Thurston held that the amended section 732.108 required an adjudicatory hearing or determination of paternity to prove a marriage was between natural parents under subsection (a) and to determine paternity of a father under subsection (b). However, the analysis of in Thurston made clear that a determination of paternity through an adjudicatory hearing is not necessary if you seek to prove your intestate right through a writing under subsection (c). Although an interesting analysis on this issue, the holding in Thurston has been overruled by the amendment to section 732.108(b).

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

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Jeffrey H. Skatoff, Esq.

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