Section 732.108 of Florida Statutes(2)(b) , provides that the paternity of the father can be established by an adjudication before or after the death of the father. Section 742.011 of the Florida Statutespermits such a paternity action. Prior to 2009, Florida law required that such an action had to be brought within four (4) years from the date the child reached majority. What if the child turned 18 more than 4 years before the change in the statute but the “putative” father died after the amended statute was enacted?
The court in Rose v. Sonson, answered that question. Stephen Rose (“Rose”) was born out of wedlock in 1964. Rose’s mother told him that his father was Stephen Sonson (“Sonson”) but she never legally established paternity. Sonson died in 2012 without a will (“intestate”) and Sonson’s 2 daughters filed a petition for administration. Rose filed a petition to determine beneficiaries, claiming to be the surviving son. Rose turned 18 in 1982. Thus, under former law Rose would have had to bring an action by 1986 to determine paternity. Rose argued that the amended statute had no 4 year requirement and he could establish that he was the son.
The court found that, at the time of Sonson’s death in 2012, Rose’s claim had already been extinguished because, under prior law, a paternity action to occur within 4 years of Rose reaching majority. Because he did not file such a action , his claim was extinguished. To allow Rose’s claim would be asserting that the amended statute applied retroactively. The court found that the amended statute did not apply retroactively because the Florida Legislature did not express a clear intent it was to be so applied. The court also noted that “[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”.
ADVICE: Currently children conceived out of wedlock can inherit under intestate succession but, if there is any question of paternity, the action for paternity can proceed regardless of the age of the child. If you have clients or children who try to use this statute be sure that you carefully review the date of the statute and the age of the children.
WORD OF THE WEEK: Putative is a “fancy” way of saying alleged or supposed or reputed. A putative father is the individual who is alleged to be the father of an illegitimate child.
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