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Illegitimate Child is Still a Legitimate Heir

Written by on Dec 13, 2010| Posted in: General

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. 1st 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. 5th 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. 5th DCA 1992); Tsilidis v. Pedakis, 132 So. 2d 9, 11-12 (Fla. 1st 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.

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