By James W. Mallonee
Do children born out of wedlock who are not adopted have standing to a decedent’s estate? The answer is possibly, provided that an individual follow certain rules and procedures to prove such person has standing before requesting the courts for relief.
The primary statute that Florida law relies in these situations is Section 732.108, Fla. Stat. The statute provides a mechanism of defining what rights an adopted person has with regard to being considered kindred of the adopting parent(s). To receive recognition of being kindred, the adopting parent must acknowledge such adoption through the courts or by the person claiming paternity in writing including signing.
In the case of White v. Marks, a female (Ms. Marks) claimed to be the illegitimate daughter of Mr. Marks. Her basis for being such person was from a birth certificate and notation in his Will that nothing should be devised to her and some writings in his pocket planner regarding Miss Marks. Although Miss. Marks birth certificate indicated that Mr. Marks was the father, the fact was he agreed to allow his name to be placed on the certificate because of the social stigma associated with being an illegitimate child.
When Mr. Marks died, Miss. Marks attempted to show that she had standing to declare his Will (not naming her as a beneficiary) was obtained by undue influence. The trial court granted judgment in favor of Miss. Marks right to standing and the case was appealed to the 5th circuit court of appeals.
The 5th Circuit Court of Appeals reversed the findings by finding that the birth certificate was not signed by Mr. Marks. Florida statute 732.108 Fla Stat. requires acknowledgement in writing. The assumption here is that in writing includes being signed by the person claiming to the be father. Although the birth certificate would seem to be an acknowledgment of such relationship, the statute requires it to be signed. In this case the birth certificate was not signed by Mr. Marks.
The other problem was that no court proceeding naming Miss. Marks as the daughter of Mr. Marks ever occurred. Lastly, for Miss. Marks to have standing she had to make a declaration of her relationship to Mr. Marks within 4 years after becoming 18 years of age or she would be time barred from claiming to be his daughter. None of the above things occurred.
What is the take-away to be learned from this ruling? If you believe you are a child of a particular person, check your birth certificate and see if it is signed by the individual claiming to be the natural parent. If that does not exist, check to see if there was any court proceeding where the court declared you to be the kindred of a particular person. If that also fails, look to see if there is any writing of any kind by the alleged parent concerning an admission of kindred (signed) by the parent. Lastly, if all else fails, get a blood or DNA test. If any one of these actions is positive, make certain you make the claim within 4 years of turning 18 years of age. Failure to do so may cause you to lose your right to a person’s estate.
If you believe you may be a descendant of an individual, seek out an attorney of your choice and ask for help in determining if you have a right to a person’s estate. Do not wait until the alleged parent passes before taking action otherwise it may be too late.
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.
James W. Mallonee, P.A.
946 Tamiami Trail, #206, Port Charlotte, FL 33953
(941) 206-2223
871 Venetia Bay Blvd., #225, Venice, FL 34285
(941) 207-2223