Q.  Does a child have a right of inheritance from a father who never knew the child existed?  The rub is the child’s mother gave the child up for adoption without the father’s knowledge.  The father’s name is not on the original birth certificate but could be easily verified.

 Historically, if a child was illegitimate, most jurisdictions required only the consent of the child’s natural mother to the adoption of the child.  The right to grant or withhold such consent was not extended to the fathers of illegitimate offspring, since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be released for adoption.

In 1979, this trend was reversed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979).  The key issue was whether the consent of an unwed biological father need be obtained before an adoption could be finalized.  In Caban, a mother of illegitimate children and her husband filed a petition for adoption.  The children’s natural father filed a cross-petition to adopt.  The New York Surrogate’s Court granted the mother’s petition, and the natural father appealed.  The decision was affirmed by the Supreme Court, Appellate Division, and subsequently affirmed by the New York Court of Appeals.  On appeal, the United States Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of Sex Discrimination. 

Consistent with the Caban case, the State of Florida requires the consent of all unwed fathers of minor children prior to the termination of parental rights pending adoption.  Fla. Stat. § 63.062(1)(b)(5) (2008); La Follette v. Van Weelden, 309 So. 2d 197 (Fla. 1^st DCA 1975).

Florida Statutes § 63.062(1)(b)(5) (2008) reads in pertinent part as follows:

(1)  Unless supported by one or more of the grounds enumerated under s. 63.089(3), a petition to terminate parental rights pending adoption may be granted only if written consent has been executed as provided in s. 63.082 after the birth of the minor or notice has been served under s. 63.088 to:

 (b)  The father of the minor, if:

 5.  In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required time frames , and has complied with the requirements of subsection (2).

 The effect of the subsequent adoption is that, for the purpose of intestate succession, the adopted child is no longer a descendant of his or her natural parents.  Fla. Stat. § 732.108(1) (2008). 

In Florida, however, the fraudulent procurement of the father’s consent to adoption (i.e., by failing to inform him of the child’s birth) is grounds for setting aside the adoption; thus restoring the adopted child’s intestate inheritance rights.  Lambert v. Taylor, 8 So. 2d 393, 394 (Fla. 1942); Peregood v. Cosmides, 663 So. 2d 665, 669 (Fla. 5^th DCA 1995). 

Furthermore, Florida Courts must give full faith and credit to a foreign adoption, unless the decree from the other state is repugnant to the laws or policies of this State.  Mott v. First Nat’l Bank of St. Petersburg, 124 So. 36, 37 (Fla. 1929); Kupec v. Cooper, 593 So. 2d 1176, 1178 (Fla. 5^th DCA 1992); Tsilidis v. Pedakis, 132 So. 2d 9, 11-12 (Fla. 1^st DCA 1961).  If another state’s judgment or decree terminating the rights of the father was issued pursuant to due process of law, and in compliance with that state’s law, and that the foreign state’s law is similar to the law of Florida, then Florida will give it full faith and credit.  Kupec, 593 So. 2d at 1178.  However, Florida need not recognize an adoption that was obtained in a manner that is repugnant to the laws or policies of Florida.  Id.

The battle over a Will can be more like a battle of wills.

“It’s the principle of the matter”

We hear these words consistently from our clients over phone or in the office… “It is not the money; it is the principle of the matter.”  Litigation over an estate, Will, trust or inheritence can be emotionally traumatic for clients, especially when the dispute is between parties who are family members.  Although the majority of our clients want to resolve their issues quickly and inexpensively, many clients are willing to use the judicial process to vindicate what they believe were wrongs suffered at the hands of a family member.  This path is frequently expensive and may cost more than any eventual recovery; however, many litigants are willing to stand on principle – even when a cost-benefit analysis does not make sense financially - to achieve a measure of satisfaction and closure through the judicial process.    Read the rest of this entry

My brother is refusing  to give an accounting of the estate assets – Why?

A beneficiary of an estate has the right to an accounting of estate assets.  Once an accounting has been requested,  Florida probate law requires that it be produced within a reasonable amount of time.  In fact, the law requires a Personal Representative to file an accounting  with the court and to serve it on all affected beneficiaires (unless it has been waived) when the administration of the estate is complete.  The accounting must be signed by the person preparing it to hold that person responsible for the information contained in the accounting.  Most importantly, a beneficiary has the right to inspect the documents (for example, bank records, receipts and checks) to confirm that the accounting being produced is supported by the evidence.  A probate litigation lawyer should never accept an accounting for her client without the supporting documentation to ensure accuracy.  Be very wary of a fiduciary who refuses to produce an accounting because he probably has something to hide.

In Florida the surviving spouse has certain basic rights regardless of whether the deceased spouse has executed a valid Will or whether the surviving spouse was excluded from the Last Will and Testament.  Something called an elective share may be taken when surviving spouses are dissatisfied with the share of the estate they are to receive under testate and intestate succession.  Under the elective share concept, the surviving spouse is entitled to take 30% of what constitutes the decedent’s “augmented estate,” with probate and certain non-probate transfers being included.  The elective share is considered to be a substitute for dower and curtesy which was the historic basic rights given to a spouse after death of a husband or wife.  Think of the elective share as the surviving spouse’s right to a forced share in the decedent’s entire estate.  It prevents the decedent from entirely disinheriting the other spouse.  The elective share is in addition to homestead, exempt property and the family allowance with all other property rights a spouse receives on top of the elective share.  See Fla.Stat. §732.208.  The elective share provisions found in the Florida Probate Code, resulting from 1999 and 2001 Legislation, consists of Fla.Stat. §§732.201 through 732.2155. Read the rest of this entry

When a person (testator) makes a last will and testament, it is customary that the will contain language that the new will revokes any and all prior wills signed by the testator.   The Uniform Probate Code holds that a new will can revoke prior wills even though it contains no other provisions stating that prior wills have been revoked.  If a person signs a new last will which revoked all prior wills, and destroyed all prior wills by burning, cancelling, tearing or obliterating them, then all prior wills would be deemed revoked.  Should a person die and the newly signed will was missing with no copies to be found, then the testator would be deemed to die intestate, or without a will.

On the other hand, if a person dies, and the most recently signed last will and testament is found to be invalid for any reason, such as undue influence, incompetency, or incomplete at the time of the signing of the new will by the testator, then it may be possible to invoke the Doctrine of Dependent Relative Revocation if there are duly signed prior wills that were not destroyed previously by the testator.  This doctrine has been applied when a person revoked a prior will in order to make a new will, but the testator did not complete the new will or the new will was found to be invalid.  If the Court finds that the testator’s intention was to revoke the prior will only if the new will was valid, then the Court may ignore the revocation of the prior will and give effect to that will so that the testator will not die intestate, or without any last will and testament in place.    Read the rest of this entry

A LESSON IN TRUST…

We often come across cases in which a Will or a Trust leaves assets equally to all of the Decedent’s children. However, at the time of death, most of the Decedent’s assets are held in joint accounts with only one of the children named as a joint owner, thereby entitling only one child to the entire account as the remaining joint owner and avoiding the equal distribution that the parent planned through his or her Will and/or Trust.

Unfortunately, the account title tends to control, despite the understanding that the child receiving the account as joint owner had been placed on the account for convenience purposes only to help mom or dad pay bills, as needed; not to receive all of the assets upon their death. Parents believe their children would never cut out their siblings but this is sadly not always the case. Read the rest of this entry

A recent case from the 5^th District answers the question of when, and under what circumstances, can step children take an inheritance and disinherit lineal descendants.  See Timmons v Timmons  35 Fla.L.Weekly D1264 (Fla. 5^th DCA Case No. 08-4103). 

When Frank died in 1999, he was married to Myrtle and had two adopted children from a previous marriage.  Myrtle had four children, none of which was ever adopted by Frank.  Frank created two trusts, a family trust and a marital trust.   Myrtle was the sole income beneficiary of the trusts during her lifetime, and upon her death, the marital trust was to pour over into the family trust.  The marital trust provided that upon Myrtle’s death, the trust’s remaining principal would pour over into the family trust and be distributed in accordance with the terms of the family trust.  The family trust provided that upon Myrtle’s death, the trust assets were to be divided “into as many equal shares as there are children of mine then living and deceased children of mine leaving issue then surviving.”  Read the rest of this entry

While election and determination of elective share may not pose a problem, enforcing contribution from beneficiaries can.

Under the Florida Probate Code, when a person’s spouse dies, the surviving spouse has the right to take an elective share pursuant to Florida Statute § 732.201.  An elective share is essentially Florida’s way of insuring that some money or property is left to the surviving husband or wife. The elective share estate includes not only probate assets but many assets which are designed to pass outside the probate estate.  Pursuant to Fla. Stat. § 732.2065, the elective share is equal to 30% of the elective estate.  A significant amount of litigation occurs regarding the elective share.  Read the rest of this entry

DETAILS ON NOTICE TO CREDITORS IN FLORIDA PROBATE ESTATES

            The Personal Representative of an Estate must promptly publish a Notice to Creditors pursuant to Florida Statute 733.2121.  The Notice should contain the following:

1)    The name of the decedent;

2)    The file number of the estate;

3)    The designation and address of the Court in which the case has been filed;

4)    The name and address of the Personal Representative of the Estate;

5)    The name and address of the Personal Representative’s attorney; and

6)    The date of the first publication.  Read the rest of this entry

Fourth District Reverses $1.6M Jury Verdict Because Lawyer Failed to Substitute Decedent’s Estate as a Party

Litigation presents lots of surprises and traps for the unwary.  The consequences of failing to follow a seemingly-routine procedure can sometimes lead to horrific consequences. 

An example of one of the plain and simple rules of litigation is that if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party.  The motion must be made within 90 days or the action shall be dismissed as to the deceased party. The purpose of this rule is to facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost

When counsel files a suggestion of death, opposing counsel should (a) contact opposing counsel for information regarding the date and place of death, and such information as opposing counsel may have regarding whether an estate has been opened, or (b) propound discovery directed at obtaining the same information, or (c) both.  Generally, if the decedent’s estate has been opened, then the personal representative should be substituted in place of the decedent; however, if no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted.  Failure to substitute the proper representative or guardian nullifies subsequent proceedings. Read the rest of this entry