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Is There a Time Limit to Establish Paternity in a Probate Case?


A common source of estate litigation is paternity claims. That is to say, individuals claiming to be a child of the deceased claim a share of the parent’s estate. In cases where the parent died intestate–without leaving a will–the children have certain inheritance rights under law. And this includes any children born outside of wedlock.

Court Holds 2009 Legislative Amendment Not Retroactive

Historically, Florida has maintained a statute of limitations for paternity claims. This meant that in cases where an alleged father failed to acknowledge paternity, the child had to file a petition with the court within four years of reaching the “age of maturity.” Put another way, once you turn 18, you have until reaching the age of 22 to file a lawsuit to establish someone is your father.

In 2009, the Florida legislature abolished this four-year statute of limitations when “determining heirs in a probate proceeding.” So let’s say a child turned 18 in 2010, which was after the legislature adopted the amendment. If the child’s alleged father passed away in 2018, the child could still seek a paternity determination in the father’s probate case, even though more than four years have passed.

But does this amendment apply retroactively–that is, to children whose claims already expired under the pre-2009 statute of limitations. The short answer to this question is “no.” For a longer explanation, consider the Florida Third District Court of Appeal’s recent decision in Dixon v. Bellamy.

In this case, a man (the decedent) passed away in 2016 without leaving a will. Initially, the decedent’s son filed a petition to administer the estate, alleging he was the only living heir. The probate court subsequently appointed the son as personal representative of the estate.

A few weeks after the son’s appointment, a woman filed a separate petition with the probate court seeking a paternity determination. She claimed to be the decedent’s child from a prior relationship. And in fact, a DNA test confirmed the decedent was her biological father.

The son, acting as personal representative, nevertheless objected to the paternity determination, arguing the pre-2009 statute of limitations still applied to this case. The daughter was born in 1959. This meant she reached the age of majority in 1977, and the four-year statute of limitations for her to establish paternity expired in 1981.

The daughter argued the 2009 amendment “carved out a new cause of action” that allowed her to seek a paternity determination at this time. While the probate court agreed with this reasoning, the Third District did not. It held the 2009 amendment was not retroactive, and even if it was, it could not revive a paternity claim that was “extinguished” as a matter of law in 1981.

Need Help with an Estate Litigation Matter?

Dealing with claims from purported heirs is just one of many tasks the personal representative of an estate may face. This is why it is important to work with a qualified Fort Myers estate litigation attorney. Contact the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free consultation with a member of our team today.


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