Paternity in Probate bench court – timing is everything, be aware

Seeking Paternity in Probate: Are You Out of Time?

When an estate enters probate and is being distributed, the distribution is usually between family members. Family members can include spouse, children from the marriage, parent, adopted child, aunt, cousin, etc. If there are issues or questions about the status of these individuals, they are usually litigated after the estate holder passes. But what if you are a child born out-of-wedlock? What status do you have and what rights do you have to the estate?

Under Fla. Stat. § 732.103, any children from the marriage are automatically deemed heirs of the estate, and entitled to a share of the intestate estate. But out-of-wedlock children have to establish paternity if they want to share in the distribution of the estate. But do these individuals have the opportunity to litigate the paternity after the father has passed? The opportunity is there, but it is subject to a statute of limitations under Fla. Stat. § 95.11(3)(b). The statute imposes a four year limitation for paternity actions generally, starting from the date the individual turns eighteen.

The Florida Supreme Court previously stated that the four year limitation applies to probate proceedings in In re Estate v. Smith. However, this ruling was overturned by an amendment to Fla. Stat. § 732.108(2), which stated that Fla. Stat. § 95.11(3)(b) does not apply to paternity actions in probate. However, a 2016 case in the Third District Court of Appeal addressed whether the amendment was retroactive or only applies prospectively.

In Rose v. Sonson, Stephen Rose was born out of wedlock in 1964. The man he claimed was his father passed away in 2012. Stephen turned eighteen in 1982. In 2013, Sonson’s family filed a petition for administration of the intestate estate in probate court. Stephen filed a counter-petition to determine beneficiaries, claiming to be a son of the decedent and a rightful beneficiary. The co-personal representatives of the estate moved to dismiss the counter-petition claiming that it was time barred. The trial court dismissed the counter-petition arguing that the amendment to Fla. Stat. § 732.108(2)(b) did not revive his claim.

On appeal, the Third District agreed with the trial court that the amendment was not meant to retroactively apply. The court stated that the Florida legislature did not intend for the amendment to apply retroactively. Further, the court stated that even if they did apply the amendment retroactively, the outcome of the case would be the same as Stephen’s claim had long since expired. The court addressed that the amendment was meant to be helpful in the future to those individuals who need to determine paternity, but it was not meant to help those individuals (like Stephen) whose claims had long since expired.

So while this case provides that the amendment did not apply retroactively, it also reinforces that moving forward, the four year limitation does not apply to probate proceedings for paternity actions. This article is meant to provide a brief understand about paternity actions and possible limitations associated with probate litigation. Those who have more questions about paternity actions and probate should consult an attorney. Please do not hesitate to contact the attorneys of Chepenik Trushin LLP, Bart Chepenik, 305-613-3548 Cell, Brad Trushin, 305-981-8889, office, who are ready, willing, and able to assist with your estate planning and probate litigation needs.

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