If a man dies in Florida without having his own will or trust prepared, he is considered to have died intestate. In other words, his estate will be distributed according to the “will” the state wrote for him. Under the state’s will, any children he had while legally married are automatically considered to be his legal heirs. But what if he fathered a child out of wedlock? Children born out of wedlock must file a paternity action to have themselves legally declared a “child” of the decedent, if they want to share in the estate. What if they wait until after the alleged father’s death to make a claim? Well, if they are adults now, it likely is too late.

Florida has two different statutes of limitation for paternity actions. The first one says that a child only has 4 years after the child turns 18 to sue for paternity or be forever barred. But, there is another statute, enacted in 2009, that says the first one doesn’t apply to paternity actions in probate proceedings. So, it looks like that newer statute saves tardy filers from being unable to inherit. Well, it does and it doesn’t.

A recent court case refused to apply the 2009 law retroactively. This means that if you were 22 years old or older in 2009, you are forever time barred from asserting a paternity claim in a Florida probate proceeding. So, a sizable chunk of our population is out of luck. But, if you were less than 22 years old in 2009, you still may have time to prove that you really are the child of that dead billionaire. Have questions about probate litigation? Call us.

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