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Pretermitted Child: Paternity vs. Adoption

Written by on Apr 23, 2014| Posted in: Probate Litigation

The Florida legislature enacted a statute to protect the inheritance rights of children born after a decedent executed his or her Last Will & Testament.  The statute, known as a “Pretermitted Children” and found at Fla. Stat. §732.302, provides that “when a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received it the testator had died intestate.”  The statute is predicated on the notion that parents intend for their children to inherit from them and that if a child was born after a parent executes a Will that it was probably an oversight not to execute a new Will or Codicil to include that child.

An interesting question was raised in the recent Third District Court case Estate of James P. Maher, III v. Olga Valerievna Iglikova, 39 Fla. L. Weekly D746b (Fla. 3d DCA 2014).  The relevant timeline is as follows:

 

December 15, 2000 Baby girl born out of wedlock (unbeknownst to decedent/father)
July 11, 2001 decedent executes Will making no provision for daughter   but with provision that leaves bequest to “children surviving the decedent”
2002 decedent’s paternity confirmed
2004 decedent disappears
August 10, 2005 court orders daughter’s birth certificate be amended to   reflect decedent is her father
August 3, 2009 decedent is declared presumptively dead by court and his Will   is admitted to probate

As the timeline above indicates, the daughter was born before the Will was executed; however, the Will was executed before paternity was confirmed.  Both the determination of paternity and the order amending the daughter’s birth certificate occurred after the execution of the Will.  Accordingly, the mother of the daughter filed a petition to have her child determined to be a pretermitted child so she would inherit from the decedent.

The Third District Court concluded that the child was not pretermitted because she was born before the Will was executed.  Further, the Court concluded that the daughter was a beneficiary by virtue of the broad language in the Will which made a devise to “children surviving the decedent.”

More interesting is the dictum from the case wherein the court compares paternity with adoption:  “Adoption” means the act of creating the legal relationship between parent and child where it did not exist.”  §63.032(3), Fla. Stat. (2010).  However, adjudication of paternity merely acknowledges an existing relationship.  See e.g. Guerrero v. Staglish, 400 So.2d 190 (Fla. 1st DCA 1981).”

Under the Maher facts, the daughter was not pretermitted because she was born before the execution of the Will and the parent-child relationship existed from birth not from the confirmation of paternity testing or adjudication by a court.  So, for the purposes of the pretermitted child statute, a judicial determination of paternity does not operate to “postpone” the date that the parent-child relationship started to exist, which makes it fundamentally different from the issue of when the parent-child relationship springs to life in an adoption.

 

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