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Statute of Limitations for Paternity in Florida Probate

Written by Brian Spiro • September 12th, 2016

Probate Litigation,  

A child may establish paternity in Decedent’s probate estate, provided the child complies with the statute of limitations governing such paternity claims.  See Fla. Stat. § 742.10(1). 

In Rose v. Sonson, 2016 Fla. App. LEXIS 13408 (Fla. 3d DCA Sep. 7, 2016) the Third District Court of Appeal recently affirmed a trial court’s dismissal of a petition for paternity in a probate proceeding where the putative child’s paternity claim was time barred. The child’s petition was styled as a petition to determine beneficiaries, and was dismissed as being time barred by the applicable statute of limitations.

Here, a child was born out of wedlock in 1964 in New York. At the time, only the child’s mother could initiate paternity actions.  The law has since been amended to permit children born out of wedlock to bring actions in their own name to determine paternity.  Such determinations are not indefinite, however.  An adjudication of paternity must be sought within four years from the date the child reaches majority.  Such an action is permitted in the paternal Decedent’s probate estate and would serve as an adjudication of paternity for purposes of inheritance.

Pursuant to Fla. Stat. § 95.11(3)(b), the statute of limitations is four years for, “[a]n action relating to the determination of paternity, with the time running from the date the child reaches the age of majority.

Fla. Stat. § 732.108(2) governs an adjudication of paternity for the purpose of intestate succession as follows:

For the purpose of intestate succession . . . a person born out of wedlock is a descendant of his or her mother and is one of the natural kindred of all members of the mother’s family. The person is also a descendant of his or her father and is one of the natural kindred of all members of the father’s family, if:

* * *

(b) The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 [Florida Statutes] shall not apply in determining heirs in a probate proceeding under this paragraph

In Rose v. Sonson, the child sat on his rights and was held to be time barred when he attempted to have his paternity adjudicated after the Decedent’s death many years after he had reached majority.  The Court, consistent with the Supreme Court’s decision in In re Estate of Smith, 685 So. 2d 1206 (Fla. 1996) that a putative child’s paternity claim following “Decedent’s death in 2012 was time barred because more than four years has passed since [the putative child] attained majority in 1982.

This decision is another reminder of the detriment(s) one may face for sitting on their rights. Had the putative child sought the determination years ago he would have been treated as an heir and entitled to his intestate share because Decedent, here died without a will.

Brian M. Spiro is a Florida probate lawyer who handles contested probate, trust, and inheritance disputes throughout Florida.  Mr. Spiro may be reached for a free consultation at (561) 842-4868.