Probate litigation often turns on a person’s claimed “status” as a decedent’s family member. Examples of this kind of litigation include challenges to a person’s claimed status as a pretermitted child, or an adopted adult, or an adopted-away child, or a descendant by blood, or a posthumously conceived child, or a “legally” recognized father, or a “legally” married spouse.
In most 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. That’s not necessarily true for paternity actions in probate.
If you’re age 35 or older today and you hope to establish paternity for the first time in a probate proceeding, your statute of limitations clock started running decades before the putative father died (i.e., your claim is now time barred). On the other hand, if you’re age 34 or younger today, no problem, your statute of limitations clock doesn’t start running until after the putative father dies (i.e., your claim is not time barred). If you think this arbitrary dividing line is fundamentally unfair, I agree.
What went wrong?
Here’s the problem, F.S. 95.11(3)(b) imposes a 4-year statute of limitations for all paternity actions, starting as of the date the putative child turns 18. By the time paternity’s being litigated for inheritance purposes the putative deceased father is almost always an elderly man, which means his putative children are usually middle aged adults. And that means F.S. 95.11(3)(b) effectively bars most paternity actions in probate proceedings … even if you have irrefutable DNA evidence.
The so-called legislative fix to this problem came in 2009 when F.S. 732.108(2)(b) was amended for the express purpose of ensuring that F.S. 95.11 does NOT bar paternity actions in probate proceedings. But here’s the problem: this statutory change isn’t retroactive. It only helped potential claimants who weren’t already time barred in 2009. And that’s a big problem.
For reasons I’ve previously reported, because the 2009 legislative change to F.S. 732.108(2)(b) wasn’t made retroactive, if you happen to have been age 22 or older in 2009 (i.e., age 35 or older today) you are forever time barred from adjudicating paternity in a Florida inheritance case — even if you have irrefutable DNA evidence backing you up. On the other hand, if you were age 21 or younger in 2009 (i.e., age 34 or younger today), you’re good to go. Again, this arbitrary dividing line is a function of the 2009 legislative fix not being made retroactive. It’s also patently unfair.
The reason for why the 2009 statutory change wasn’t made retroactive was addressed by the 3d DCA in Rose v. Sonson:
“Once 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.”).
I’m not convinced. First, all we’re talking about here is establishing a putative father’s default universe of potential intestate heirs in probate proceedings under F.S. 732.108, so no one’s infringing on his property rights or testamentary freedom (the man died intestate after all). Second, none of his other potential intestate heirs has any “vested property rights” that need protecting either. No one has vested property rights in a future expected (hoped for) inheritance that may or may not ever materialize.
Bottom line, the 2009 legislative change to F.S. 732.108(2)(b) preserving paternity actions for intestate probate proceedings should have been made retroactive, which would have avoided the inequitable system we now have in place.
Case Study
Bivins v. Douglas, — So.3d —-, 2021 WL 4888632 (Fla. 3d DCA October 20, 2021)
Against the backdrop of Florida’s inequitable treatment of middle aged adults seeking to establish paternity for the first time in an estate proceeding, there’s going to be a huge amount of pressure to find procedural workarounds in those cases where paternity is undeniable as a factual matter (think DNA evidence). One workaround that was tried in the White case —and failed — is the “written-acknowledgement” exception. Bivins is important because just about every other possible workaround was tried in this case — and they too all failed.
Can a defendant contest the timeliness of a paternity action in a motion to dismiss? YES
If you’re on the plaintiff side of one of these cases, your first challenge is to survive a motion to dismiss. You might think that all you need to do at this stage of the game is simply include a blanket statement in your complaint alleging paternity. After all, to disprove that allegation a defendant would have to rely on facts outside the four corners of the complaint, which is usually a no-no in a motion to dismiss. And you’d be wrong. According to the 3d DCA, contesting paternity in a motion to dismiss is fair game.
[T]he blanket statement that “Pearce was the biological father” of Bivins, without more, fails to establish Pearce’s paternity. See Robinson v. Robinson, 298 So. 3d 1202 (Fla. 3d DCA 2020).
Section 95.11(3)(b) of the Florida Statutes imposes a four-year statute of limitations on an “action relating to the determination of paternity, with the time running from the date the child reaches the age of majority.” Thus, in order to qualify as Pearce’s intestate heir, Bivins would have had to establish Pearce’s paternity within the time period allowed by the statute of limitations. Here, the limitations period ran in 1987, i.e., four years after Bivins reached the age of majority when he turned eighteen years old. Because Bivins failed to obtain a judicial declaration of paternity within that period. Bivins’s claim is barred by the statute of limitations.[FN4]
[FN4:] We disagree with Appellants’ contention that the trial court erred in considering the statute of limitations in ruling on the motion to dismiss because it required the court to consider matters outside the four corners of the complaint. The second amended complaint clearly showed the applicability of the defense given that it contains allegations as to Bivins’ paternity without reference to a declaration or other proof. See Gen. Motors Acceptance Corp. v. Thornberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993).
Can the “marriage ceremony” exception get a plaintiff around the time bar for paternity actions? NO
Under F.S. 732.108(2)(a), your father’s legal paternity is established as a matter of law if your parents participated in a marriage ceremony at some time before or after your birth. Here’s the operative statutory text:
(2) For the purpose of intestate succession in cases not covered by subsection (1), a person … is … a descendant of his or her father and is one of the natural kindred of all members of the father’s family, if: (a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock …
In this case the plaintiff claimed he fell in this exception, so his paternity was established. Game over.
Not so fast said the 3d DCA. The marriage exception only applies if it involves your biological parents. If the father’s biological paternity is contested, the marriage exception doesn’t apply because it’s premised on the fact of biological paternity. And if you’re time barred from litigating that fact, you’re also time barred from claiming the marriage exception. Bottom line, defendant wins again, so saith the 3d DCA:
In another effort to circumvent the statute of limitations, Appellants assert that Bivins was born out of wedlock and that his biological mother and Pearce participated in a marriage ceremony after his birth. In Appellants’ view, Bivins is Pearce’s descendent. In support of this contention, Appellants cite to section 732.108(2)(a) of the Florida Statutes, which states, in relevant part: “For the purpose of intestate succession … a person born out of wedlock is … a descendant of his or her father … if: (a) [t]he natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.”
In making this assertion, Bivins has overlooked the fact that section 732.108(2)(a) requires proof that the marriage was between Bivins’ natural parents. This would still require a legal determination of paternity. See Thurston v. Thurston, 777 So. 2d 1001, 1004 (Fla. 1st DCA 2000) (“[A]lthough section 732.108(2)(a) permits a person born out of wedlock to establish an intestacy relationship between that person and a man married to his or her mother, … it requires the putative heir to also establish that the marriage was between his or her natural parents. Under the authority of In re Estate of Smith, [685 So. 2d 1206 (Fla. 1996)] such a probate proceeding is a proceeding relating to the determination of paternity to which section 95.11(3)(b) applies.”) (emphasis added)). Thus, Bivins would have had to prove that Pearce was his biological father to establish an intestacy relationship to Pearce on the basis of his marriage to Bivins’s mother pursuant to section 732.108(2)(a). Given that Bivins never obtained such a declaration from Pearce within the statute of limitations, this argument fails.
Can the “delayed discovery” exception get a plaintiff around the time bar for paternity actions if he’s not suing the decedent for fraud? NO
In this case the plaintiffs filed a declaratory action seeking to invalidate several trust instruments executed by the decedent. The plaintiffs weren’t suing the decedent for fraud. That whole in their case sunk their next attempted workaround to the filing deadline barring their paternity action: the “delayed discovery” exception. So saith the 3d DCA:
Here, Appellants contend that Pearce made repeated fraudulent misrepresentations that he was not Bivins’ biological father, and that said misrepresentations were made until nearly the time of Pearce’s death. Because of these fraudulent misrepresentations, Appellants claim that the facts giving rise to this cause of action were only discovered four years ago. In Appellants’ view, the action to establish paternity is timely, given that the alleged fraud occurred less than twelve years ago.[FN6] This argument fails.
The delayed discovery doctrine applies solely to causes of action that are specified in section 95.031, Florida Statutes, which includes claims of fraud, products liability, professional malpractice, medical malpractice, and intentional torts based on abuse. See Davis v. Monahan, 832 So. 2d 708, 709–10 (Fla. 2002) (refusing to extend the application of the delayed discovery doctrine to claims involving breach of fiduciary duty). Given that Appellants failed to specifically plead a claim for fraud on the part of Pearce, the delayed discovery doctrine does not serve to bar the application of the statute of limitations.
[FN6:] Appellants cite to section 95.031(2)(a) for the proposition that “in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.” However, as discussed above, Appellants never included a claim for fraud in any of the three versions of the complaint filed below.
Can the “equitable estoppel” exception get a plaintiff around the time bar for paternity actions if he wasn’t aware of the decedent’s paternity? NO
Plaintiff next argued that he would have filed a timely paternity action, but he was “induced” not to because the decedent “fraudulently” concealed the fact of his paternity. Therefore, the decedent’s estate is now equitably estopped from using that fraud as a defense. The problem with this argument is that it only works if the plaintiff knew of the decedent’s paternity decades earlier when a timely paternity action could have been filed. That’s not what plaintiff is claiming, in fact he’s claiming the opposite. Plaintiff strikes out again, so saith the 3d DCA:
The doctrine of equitable estoppel bars the application of the statute of limitations defense where an injured party recognized a basis for filing suit, but was induced to forbear filing suit during the limitations period by the party who caused the injury. W.D. v. Archdiocese of Miami, Inc., 197 So. 3d 584, 590 (Fla. 4th DCA 2016). The argument here is that Pearce fraudulently induced Bivins to forego his right to establish paternity by fraudulently concealing the fact that he was Bivins’ biological father, which Bivins did not discover until years later.
This argument fails because “equitable estoppel ‘presupposes that the plaintiff knows of the facts underlying the cause of action but delayed filing suit because of the defendant’s conduct.'” Black Diamond Props., Inc. v. Haines, 69 So. 3d 1090, 1094 (Fla. 5th DCA 2011) (citations omitted) (emphasis in original). In other words, Bivins would have had to: (a) be aware of the right to file a claim for paternity, but (b) then failed to do so because of Pearce’s fraudulent misrepresentation. First, the second amended complaint contains no allegations that anyone actively induced Bivins into foregoing filing a paternity suit. Further, Appellants’ argument centers on the fact that Bivins did not become aware of the facts underlying this cause of action, including Pearce’s status as his biological father, until recently given Pearce’s alleged fraud. The above facts render the doctrine of equitable estoppel inapplicable.
Lesson learned?
Again, if you get a call from someone age 22 or older in 2009 (i.e., age 35 or older today) who wants to establish paternity in an inheritance case, that person’s claim is now time barred. This arbitrary dividing line is unjust. So you’re going to want to find a workaround (especially if you have irrefutable DNA evidence backing you up). Stop and read Bivins and White (the failed “written exception” case). No matter how just your cause might be, there’s no sense banging your head against a wall (as well as wasting a lot of time and money) by litigating exceptions to the time bar if those same arguments have already been tried and rejected. You’ve been warned …