It will have blood, they say; blood will have blood.

~William Shakespeare~

Court rules the phrase “descendants by blood” is a legal term of art, not a scientific one.

Court’s are often called upon to interpret ambiguous language contained in wills, trusts and other legal instruments.  Recently, I was curious to read that a court was called upon to give meaning to the phrase “descendants by blood” in Doe v. Doe, 34 Fla.L.Weekly D1819c (Fla 2^nd DCA February 4, 2009).  I had presumed its meaning was clear, however, when I read the opinion issued by this court, it appears that it was necessary for an interpretation given the recent advances in technology, especially in the area of genetic testing.

The facts of Doe are uncomplicated.  Chester Jr. and Eleanor, his wife, executed mutual revocable trust agreements.   Each trust provided for a class gift to the settlor’s grandchildren.  One of the grandchildren was Catherine, who was the daughter of Chester III by virtue of his name appearing on her birth certificate and a court order entered in the domestic relations division following Chester III’s divorce with Catherine’s mother. Read the rest of this entry

Can a Parent Inherit from a Child Whom the Parent Did Not Support?

An infant was born severely handicapped as a result of medical malpractice by doctors at birth. The doctors were sued and a judgment was entered against them for almost three million dollars, the bulk of which was placed in a trust for the child’s benefit. The child died on September 2, 2005.

The child’s mother took care of her throughout her life and received funds from the trust to attend to the child’s needs. After the child’s death, her biological father sought half of the balance remaining in the trust under their state’s intestacy laws. The child’s mother argued that the father didn’t contribute to the child’s support during her life, and owed unpaid child support, and therefore shouldn’t be entitled to half of the remaining funds in the trust. Further, the child’s mother claimed that even if there was no dispute as to his status as the child’s biological father, he didn’t qualify as a “parent” because the dictionary defines “parent” as not only one who “brings forth offspring,” but also includes a person who “brings up and cares for another.”

This case was decided recently under New Jersey’s state law in In the Matter of Rogiers, 396 N.J.Super. 317, 933 A.2d 971 (2007). The New Jersey court in this determination of heirs case, acknowledged that parents must contribute to the basic support needs of an unemancipated child to the extent of their financial abilities and regardless of marital status and also recognized that the absence of meaningful relationship does not relieve a legally-obligated parent from providing for his child’s basic needs. Nevertheless, the New Jersey court looked to that state’s probate code and found that a “parent” was “any person entitled to take or who would be entitled to take if the child, natural or adopted, died without a will, by intestate succession from the child whose relationship is in question and excludes any person who is a stepparent, resource family parent or grandparent.” Thus, under New Jersey law, a parent includes a mother and child and father and child legal relationships, either natural (biological) or adoptive. This relationship alone qualified the child’s father as a parent under the New Jersey probate code for purposes of inheriting half of the child’s remaining trust fund.

A different result might be reached if this case were decided by application of the Uniform Probate Code, which has been partially adopted in Florida. The Uniform Probate Code provides that neither natural parent (nor that natural parent’s kindred) can inherit from or through a child unless that natural parent, mother or father, has openly treated the child as his or hers and has not refused to support the child. Unif. Probate Code § 2-114(c).

The Florida Probate Code has not adopted the above section of the Uniform Probate Code, but does provide for a mechanism to determine what happens to probate assets when there is no will. Under the Florida Probate Code, section 732.103 provides that, the part of the intestate estate not passing to the surviving spouse, or the entire intestate estate if there is no surviving spouse, descends, if there is no lineal descendant, to the decedent’s father and mother equally or to the survivor of them. At this time, the only conduct by a heir that would disqualify him or her from taking their intestate share of a relative’s estate is murder. Under the Florida Probate Murder Statute, a slayer is prohibited from inheriting from the murder victim. One provision of the Florida Probate Code that might be relevant in the type of case described above is section 733.809, which provides that the amount of a noncontingent indebtedness due from a beneficiary to the estate or its present value, if not due, may be offset against that beneficiary’s interest.