The U.S. has the world’s highest rate of children living in single-parent households. Against this backdrop it shouldn’t come as a surprise to anyone that questions about paternity are a common occurrence in probate proceedings, especially when the decedent dies intestate.
Now the bad news, as I’ve previously reported, if you happen to have been age 22 or older in 2009 (i.e., age 34 or older today) you are forever time barred from adjudicating paternity in a Florida probate proceeding … even if you have irrefutable DNA evidence backing you up. As a practical matter, this means that for middle aged adults (i.e., the most common age group for surviving children in most probate proceedings) all paternity actions are now time barred in probate. And that means there’s going to be a lot of pressure to find workarounds in those cases where paternity is factually undeniable. The “written acknowledgement” route for establishing paternity will seem like an easy answer. As demonstrated in the White v. Marks case below, it’s not.
If a man dies intestate his out-of-wedlock children or descendants are determined by applying one of the three tests found in F.S. 732.108(2). The first two tests are objective “yes” or “no” questions, that are fairly easy to apply. Did the decedent marry your mother, if yes, he’s your father. Was the decedent’s paternity previously established in a paternity adjudication, if yes, he’s your father (no matter what the DNA says).
By contrast, the third “written acknowledgement” test for paternity is expansive and open ended, leaving plenty of room for interpretation. The third test is found in F.S. 732.108(2)(c), which provides as follows:
The 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: … (c) The paternity of the father is acknowledged in writing by the father.
Is any written acknowledgment of paternity enough? NO
In the real world, the undefined and often shifting emotional ties between men and the children of the women they’ve shared their lives with often result in a paper trail that’s equally ambivalent and open to interpretation. If this informal paper trail is going to be used as a basis for establishing paternity, the decedent’s expressed intent needs to be beyond question — passing, contradictory references won’t suffice. Here’s the operative test:
In interpreting the prior version [of the statute], the Florida Supreme Court found that an informal writing was sufficient to meet the statute, provided the acknowledgment “directly, unequivocally and unquestionably acknowledges the paternity of the illegitimate child, in such terms and under such circumstances as may ‘be construed as a formal acknowledgment of parenthood.’” In re McCollum’s Est., 88 So. 2d 537, 540 (Fla. 1956) (quoting In re Horne’s Est., 149 Fla. 710, 7 So. 2d 13 (1942)).
Will an unsigned birth certificate suffice? NO
In this case the decedent appears on the contestant’s birth certificate — even though all sides concede he was not her biological father.
Ms. Marks’ mother, Lynda Vitale, had conceived Ms. Marks with the assistance of a sperm donor and was pregnant at the time she and Mr. Marks met. Despite the fact that Mr. Marks was not her biological father, his name was entered on Ms. Marks’ birth certificate. Ms. Marks’ mother had explained to her that to avoid the social stigma attached to out-of-wedlock births where the father was listed as “unknown,” Mr. Marks had agreed to be listed as the father.
But more importantly, the decedent didn’t sign the birth certificate. In the absence of a signature, the document is disqualified as a matter of law.
Ms. Marks has conceded on appeal that the trial court erred in finding the birth certificate constituted a written acknowledgment of paternity. The birth certificate was not signed by Mr. Marks and without the accompanying required written consent, could not qualify as written acknowledgment under the statute.
Does calling you my “adopted daughter” in my Will or Pocket Planner suffice? NO
The decedent refers to the contestant as his adopted daughter in his Will — even though all sides concede he never actually adopted her — and the reference was made for purposes of cutting her out.
Mr. Marks passed away in 2018, and his will was submitted to probate. The will devised his estate to Joseph White and Darla Hall in equal shares and expressly did not provide for Ms. Marks, stating: “I have also intentionally made no provision under this will for my adopted daughter Samantha Nicole Marks, although it is my desire that Joseph White make appropriate provisions for her.”
The decedent also made some reference to the contestant in his “pocket planner” that arguably evidenced an acknowledgment of paternity. So was this enough? Nope, especially when viewed in the context of a relationship that was marked by a lack of contact and emotional and financial support for most of the decedent’s life.
Ms. Marks readily admits that Mr. Marks was neither her biological nor adoptive father. Mr. Marks was well aware that he was not her biological father, as Ms. Vitale was pregnant before they met, which presumably explains why he referred to Ms. Marks as his adopted daughter, rather than his daughter. Because it is undisputed that an adoption did not occur, the references in the will and pocket planner are only understandable as descriptive, rather than direct, unequivocal acknowledgments of paternity. See McCollum’s Est., 88 So. 2d at 540.
It is undisputed that Mr. Marks did not undertake parental responsibilities during Ms. Marks’ life. Although Mr. Marks dated Ms. Vitale while Ms. Marks was an infant, he and Ms. Marks did not meet again until she was in her twenties. Nor did Mr. Marks provide her with any financial assistance throughout her life. Such behavior is consistent with the testimony of Ms. Marks that Mr. Marks agreed to have his name placed on the birth certificate to avoid having “unknown” listed as the father.
Further, Ms. Marks’ name was misstated under the will, and Mr. Marks directed that she not receive any devise from the estate. When considered with the lack of contact and emotional and financial support, the equivocal nature of the references becomes apparent. Accordingly, we find that the references are insufficient to create a legal relationship.
So what’s the takeaway?
Again, for reasons I’ve reported on before, if you get a call from someone age 22 or older in 2009 (i.e., age 34 or older today) who wants to establish paternity in a probate proceeding, that person’s claim is now time barred. The “written acknowledgement” route for establishing paternity will seem like an easy workaround. It’s not.
Unless you have something in writing — signed by the decedent — that “directly, unequivocally and unquestionably acknowledges the paternity of the illegitimate child, in such terms and under such circumstances as may be construed as a formal acknowledgment of parenthood,” you’re not doing anyone any favors by raising false hopes.