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In 2004 James Maher’s small twin-engine plane went missing somewhere over the jungle between Honduras and Costa Rica. His body was never found.

Maher executed a valid will in 2001. Under F.S. 733.209 Maher’s heirs are permitted to petition to administer his estate while he’s missing; however, no personal representative can be appointed until a court determines he’s dead. So how do you do that in the absence of a body? If someone’s missing for over 5 years or there’s direct or circumstantial evidence of death, under F.S. 731.103 a court can enter an order declaring that person dead (see here, here). That’s what apparently happened in this case. In 2009 (five years after Maher went missing) the probate court entered an order determining him to be dead, and shortly thereafter admitted his 2001 will to probate.

Case Study:

Estate of Maher v. Iglikova, — So.3d —-, 2014 WL 1386660 (Fla. 3d DCA April 09, 2014)

Maher wasn’t married when he died, but he did father two children, a son and daughter, with two different women. At issue in this case was whether the daughter he fathered in 1999, whose existence he was unaware of until 2002, should be considered a “pretermitted” child under F.S. 732.302 for purposes of his 2001 will. I’ve previously written about pretermitted children in the context of actor Heath Ledger’s death. The pretermitted-child issue was also raised by the recent death of actor Philip Seymour Hoffman.

As a pretermitted child, Maher’s daughter would be entitled to 1/2 of his estate as an intestate heir, regardless of what his 2001 will might say. Although Maher’s will did provide for a class gift for his “children,” I’m guessing it wasn’t as generous as a 1/2 intestate share (otherwise, why sue?).

Does an adjudication of paternity = “adoption” for purposes of Florida’s pretermitted child statute? NO

The purpose of our pretermitted-child statute is to avoid an unintentional or inadvertent disinheritance of a child. Under F.S. 732.302 there are three elements that must be satisfied for a child to be pretermitted. The child must be: (1) omitted from the will, (2) born or adopted after the making of the will, and (3) have not received a part of the testator’s property equivalent to a child’s part by way of advancement.

The child’s mother argued her daughter should be considered Maher’s pretermitted child because her adjudication of paternity wasn’t completed until 2005, about 4 years after Maher executed his 2001 will, and this post-will-execution adjudication was the functional equivalent of a post-will-execution adoption. There’s some logic to that argument, and maybe that’s what the law should be. But changing the law’s a job for the legislature, not our courts.

Despite the clear text of the statute, the Miami probate judge bought into the argument in favor of daughter’s pretermitted-child status. On appeal, she didn’t fare so well. According to the 3d DCA, an adjudication of paternity is not equivalent to an adoption, and if you think the statute’s too narrow, you need to get the law changed by legislation, not by court order.

[U]nder the plain and obvious meaning of the statute, A.M.I. is not a pretermitted child because she was born before the execution of the decedent’s will. Iglikova argues that an adjudication of paternity should be equated with an adoption that took place after the execution of the will. We decline to adopt such a rationale, as the two are distinct. “‘Adoption’ means the act of creating the legal relationship between parent and child where it did not exist.” § 63.032(2), Fla. Stat. (2010). However, adjudication of paternity merely acknowledges an existing relationship. See e.g. Guerrero v. Staglish, 400 So.2d 190, 191 (Fla. 1st DCA 1981). In addition, it is not within the purview of this Court to expand the meaning of the statute when its language is clear and unambiguous. Accordingly, we hold that the trial court erred when it denied Taran’s motion for summary judgment and determined A.M.I. is a pretermitted child.

An “insider’s” view:

For an insider’s view of this case, you’ll want to read this interview of one of the attorneys on the winning side of the case.