Rose v. Sonson, — So.3d —-, 2016 WL 4651350 (Fla. 3d DCA September 07, 2016)
Inheritance litigation often turns on a person’s claimed “status” as a family member. Past examples include challenges to a person’s claimed status as a descendant: for example, are you a pretermitted child (click here), or an adopted adult (click here, here), or an adopted-away child (click here), or a descendant by blood (click here), or a posthumously conceived child (click here); or challenges to a person’s claimed status as a parent: for example, are you a “legally” recognized father (click here); or challenges to a person’s claimed status as a spouse: for example, are you “legally” married (click here, here).
In most of these cases a claimant doesn’t have to litigate his or her status until after someone dies. Which means your statute of limitations clock doesn’t start ticking until the moment of death. Not so with paternity actions.
Paternity litigation is different:
If a man dies without a will (intestate), any children he had while married are automatically considered his heirs, entitled to an intestate share of his estate as determined by F.S. 732.103. Not so with out-of-wedlock children. Those heirs have to prosecute paternity actions if they want a share of the estate.
So can you prosecute a paternity action after the alleged father dies? Yes, but only if the claim’s not time barred. And as explained below, the 3d DCA’s ruling in this case means most paternity actions are going to be time barred.
F.S. 95.11(3)(b) imposes a 4-year statute of limitations for paternity actions, starting as of the date the putative child turns 18. This makes sense if all we’re worried about is establishing paternity to enforce a father’s economic support obligations for his minor children. A statute-of-limitations clock that starts running when a putative child turns 18 makes a lot less sense if we’re talking about inheritance litigation, when the “child” at issue is almost always going to be a middle aged adult by the time his or her alleged biological father passes away.
So does F.S. 95.11(3)(b) apply to probate proceedings? In In re Estate of Smith, 685 So.2d 1206 (Fla. 1996), the Florida Supreme Court said YES, it does. Was that the end of the story? NO. In 2009 the Smith ruling was overturned by statute with an amendment to F.S. 732.108(2), which said F.S. 95.11 does NOT apply to paternity actions in probate proceedings.
So was that the end of the story? NO. Why? Because until now we’ve never had an appellate court address the following question: was the 2009 change to F.S. 732.108(2)(b) retroactive (thus reviving all previously time-barred paternity claims in probate), or did it only apply prospectively (thus preserving the status quo for all probate paternity claims time barred as of 2009)? How the 3d DCA answered this question potentially impacts every intestate estate in Florida. So yeah, this case is big deal.
In this case a man was born out of wedlock in 1964. His alleged biological father died intestate 48 years later in 2012. The claimant turned 18 in 1982. Under F.S. 95.11(3)(b) he had 4 years to bring suit to establish paternity. In other words, his paternity action was time barred in 1986 — 26 years before his father died and his status as an intestate heir became relevant for inheritance purposes.
The claimant argued his paternity action was revived by the 2009 change to F.S. 732.108(2), which said F.S. 95.11 does NOT apply to paternity actions in probate proceedings. Trial court said NO, and the 3d DCA agreed. Here’s why:
We . . . agree with the trial court that . . . the putative child’s paternity claim following [the decedent’s] death in 2012 is time barred because more than four years has passed since [the claimant] attained majority in 1982. . . . This is because the Florida Legislature did not make the amendment to section 732.108(2)(b) retroactive in its application and applying the 2009 amendment to that provision would not have affected the outcome in any event. This is so because by the time the 2009 amendment to section 732.108(2)(b) took effect to eliminate the limitations bar previously imposed by section 95.11(3)(b), [the putative child’s paternity claim] had long since expired, and as noted in Smith, “[o]nce a claim has been extinguished by the applicable statute of limitations, the claim cannot be revived because a constitutionally protected property right to be free from the claim has vested in the defendant.” Id. at 1210; see also Wiley v. Roof, 641 So.2d 66, 68 (Fla.1994) (“Once the defense of the statute of limitations has accrued, it is protected as a property interest just as the plaintiff’s right to commence an action is a valid and protected property interest…. Florida’s statute of limitations, section 95.011, bars all action unless commenced within designated times…. Once an action is barred, a property right to be free from a claim has accrued.”).
Thus, while section 732.108(2)(b) as amended in 2009 provided relief to similarly situated individuals with existing causes of action by eliminating the four year statute of limitations imposed by section 95.11(3)(b) on paternity determinations in probate proceedings to determine intestate succession going forward, this amendment provides no relief to those such as [the claimant in this case] whose claims had already expired by the time the amendment became law. See Smith, 685 So.2d at 1210 (“[T]he 1986 amendment [to section 95.11(3)(b) to extend the limitations period for bringing paternity actions] provides Scruggs no solace because even under its terms her claim had long since expired.”); Wiley, 641 So.2d at 68 (“The Legislature has the power to increase a prescribed period of limitation and to make it applicable to existing causes of action provided the change in law is effective before the cause of action is extinguished by the force of a pre-existing statute.”) (quoting Walter Denson & Son v. Nelson, 88 So.2d 120, 122 (Fla.1956) (emphasis supplied))).
Do the math; assume most paternity actions in probate are now time barred:
Under F.S. 95.11(3)(b), the 4-year statute of limitations period for paternity actions starts running when a putative child turns 18, which means he or she has until age 22 to file suit. So if you were age 22 or older in 2009 you’re forever time barred from adjudicating paternity in a Florida probate proceeding. That’s 65% of Florida’s population (see here). I’m guessing this outcome’s going to come as a big surprise to most probate lawyers. You’ve been warned!