The 1 Major Roadblock Older Out of Wedlock Children Face When It Comes to Inheriting and Intestacy.

  1. Probate
  2. The 1 Major Roadblock Older Out of Wedlock Children Face When It Comes to Inheriting and Intestacy.

In today’s day and age being born out of wedlock no longer has the social stigma it once did. But while we may have advanced socially, being born out of wedlock can still present legal hurdles in probate cases.

This is especially so when the intestacy laws are applied to determine inheritance.

In probate, (assuming decedent did not have a properly funded trust) if a decedent does not leave a Last Will and Testament (“Will”) or if the Will is held to be invalid for any reason, the laws of intestacy will be applied to determine inheritance.

The laws of intestacy are also applied if one of the decedent’s children was born out of wedlock either before or after his/her death, and during probate, someone objects to the out-of-wedlock child’s inheriting from the decedent’s estate.

Intestacy

If a person dies without a Will or if the Will is held to be invalid (either in part or in whole), to determine who will inherit, the court applies Florida’s intestacy laws.

In such cases, the intestacy laws determine who may inherit, and in what amount.

Out of Wedlock Children

The intestacy laws do allow children born out of wedlock to inherit from a decedent.

But there’s a catch.

If the decedent was the father of the out of wedlock child and someone objects to the child inheriting, then the child must/can bring a paternity suit in the probate proceedings in order to prove his/her right to inherit.

BUT only if his/her claim is not time-barred.

You see, Florida has a statute of limitations for bringing paternity suits.

Chapter 95.11(3)(b) mandates that all paternity suits must be brought within four years “of the date the child reaches maturity.” Which means that all paternity suits must be brought within four years of reaching the age of 18.

Because the unintended effect of the statute of limitations was to essentially bar almost all paternity suits in probate proceedings, in 2009, the intestacy laws were amended to specifically not have Chapter 95.11 (3)(b) apply to out of wedlock probate paternity actions.

This, then, would allow a child born out of wedlock to bring a paternity action in the probate proceedings despite the four-year statute of limitations.

BUT, BUT, BUT…

The statutory amendment was not retroactive.

Which means that whether you can or cannot adjudicate your paternity in the context of a probate proceeding in order to determine your inheritance rights turns on how old you were in 2009.

If you were 21 or younger in 2009, you can adjudicate your paternity in the context of the probate proceedings.

If, however, you were 22 years old or older in 2009, (18 + 4 = 22), your paternity action will be time-barred, and you will not be allowed to adjudicate paternity in a Florida probate proceeding.

Florida’s trusts and estates laws are complex and complicated. Always consult with an experienced estate and probate lawyer to find out what your rights are.

Protecting Your Family is Just a Phone Call Away.

Don’t leave planning for your future and that of your loved ones to chance. All it takes is one phone call to the Law Offices of Samantha J. Fitzgerald to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well.  When you work with the estate planning attorneys at the Law Offices of Samantha J. Fitzgerald, you get more than just an estate plan: you get peace of mind. Call us at 954-580-3690 or email us at: [email protected] today.

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