Florida Probate, Trust & Guardianship Litigation

Paternity in Florida Probate

Paternity disputes often happen in probate cases, normally in an intestate estate.  The following explains how paternity can be established in a Florida probate proceeding.

Child Born of Marriage

The law presumes that the husband of the biological mother of a child is the child’s legal father, based on the Florida Supreme Court case of Simmonds v. Perkins (2018).

Probate Code

Florida Code Section 732.108(2) establishes three ways in which paternity can be established in a probate proceeding for children not born of a marriage:

(a) The 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.
(b) The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph.
(c) The paternity of the father is acknowledged in writing by the father.

Marriage Ceremony

If the parents participated in a marriage ceremony before or after birth of a person born out of wedlock, paternity is established.  A void marriage is often a bigamist marriage (one of the persons is already married to another).

Acknowledgment in Writing

The nature and quality of the writing is a case by case determination.  When faced with the question of whether eyewitness testimony should be required to authenticate writings of a father acknowledging a child, the court in In re: Estate of Jerrido, 339 So.2d 237 (Fla. 4th DCA 1976) refused to require such evidence. 

Birth Certificate

In order to obtain a birth certificate, one or both parents will be required to sign a birth certificate application stating the names of both parents.  If the parents are not married at the time of birth, the father will be required to sign the birth certificate to be listed as the father.  The Florida live birth application shows the need for a signature.  The application signed by the father should always establish paternity.

Baptismal Certificate

Any writing can serve as a written acknowledgment of paternity.  Many denominations that baptize children will have the parents sign the baptismal document.

Financial Documents

Life insurance applications will include the ability to name a beneficiary of the life insurance proceeds.  The applicant for the insurance will be required to sign this document.  Life insurance in particular requires that the people named as the beneficiary of the life insurance have an “insurable interest” in the life of the insured, and all applications require a statement of the relationship between the insured and the beneficiary, such as “child” or “daughter.”


The adjudication can happen before or after death of the father.  If adjudication is to happen after death, the probate court can make the paternity determination.

Statute of Limitations

The statute of limitations on adjudicating paternity after the death of the father has been legislatively changed and has been often litigated.

Section 732.108(2)(b) of the Florida Probate Code was amended in 2009 to provide that the four year statute of limitations under Chapter 95 does not apply to determining paternity in a probate proceeding relating to intestate succession.

Chapter 95 imposes a four-year statute of limitations to an action relating to the determination of paternity, with the time running from the date the child reaches the age of majority. Said another way, under Chapter 95, if you are attempting to establish paternity, it must be done prior to the child reaching age 22 (with the age of majority being 18).

Rose v. Sonson (Fla. 3d DCA 2016) explains that the amendment to eliminate the four-year statute of limitations for probate paternity determinations is not retroactive.

In the Rose case, Michel reached the age of majority in 1998.  She did not petition for summary adjudication until 2016, or for a DNA sample to verify paternity until 2017.  By the time Michel filed her paternity claim, it had already been time barred by section 95.11(3)(b), because more than four years had passed since she attained the age of majority in 1998.  Her right to establish paternity was extinguished in 2002, and was not revived by the 2009 amendment.  A key holding from Rose is that section 732.108 does not apply retroactively.  Therefore, if a claim was extinguished before the implementation of the statute, the claim was barred.  As explained by the Court

[t]he 2009 amendment to section 732.108(2)(b) did not affect this outcome because the Florida Legislature did not make the amendment retroactive in its application. Id. Finally, this court stated that even if the amendment were retroactive, it could not revive Rose’s claim because his claim had been extinguished by the applicable statute of limitations.

The practical effect of the amendment at Section 732.108(2)(b) and the Rose case is that paternity can be established after death, so long as the statute of limitations had not expired prior to the amendment.  Anyone younger than age 22 in 2009 can establish paternity in a probate proceeding.  Therefore, in 2024, one must be under age 37 to adjudicate paternity in a probate proceeding.

DNA Evidence

As discussed in a recent article in the New York Times, the use of DNA evidence has become very liberalized to the extent that privacy rights are trumped in order to seek out the identity of criminals.  However, probate courts have taken a more conservative approach in refusing to permit DNA evidence to identify true biological parents when paternity has already been established pursuant to 732.108. 

In Glover v. Miller, the Court refused to consider DNA evidence, which would have confirmed the child’s biological father, because there had been a prior adjudication of paternity for another man before the child’s death.

Section 732.101(2) provides that the decedent’s date of death is the event vesting the heirs’ rights to intestate property. At the date of Jerrod’s death, Glover was not considered Jerrod’s father for purposes of intestate succession, because he never married Jerrod’s mother, was never adjudicated to be his father, and never acknowledged in writing that he was Jerrod’s father. In contrast, Miller was Jerrod’s father for purposes of intestate succession because he was adjudicated to be Jerrod’s father. Thus, Miller’s rights vested on Jerrod’s death because he is Jerrod’s father by a paternity judgment. Jerrod was a lineal descendant of Miller within the meaning of section 732.108(2)(b), so he is an heir for purposes of section 733.301(1)(b)3.

In Holmen v. Holmen, 697 So.2d 866 (Fla. 4th DCA 1997), the trial court refused to consider DNA evidence of paternity, finding that the decedent’s written acknowledgment of the child was sufficient proof to settle the issue. On appeal, the issue was whether the rebuttable presumption of paternity in family law proceedings (section 742.10) should be applicable in probate proceedings. The appellate court refused to apply the standard in probate proceedings.

The appellants, who contested the petition, argued that the decedent’s affidavit created only a rebuttable presumption. They wanted the opportunity to demonstrate by scientific testing and other evidence that the decedent was not in fact the father of the child. They relied on section 742.10(1), which provides:

(1) This chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock. When the establishment of paternity has been raised and determined within an adjudicatory hearing brought under the statutes governing inheritance, dependency under workers’ compensation or similar compensation programs, or vital statistics, or when an affidavit acknowledging paternity or a stipulation of paternity is executed by both parties and filed with the clerk of the court, or when a consenting affidavit as provided for in s. 382.013(6)(b) is executed by both parties, it shall constitute the establishment of paternity for purposes of this chapter. If no adjudicatory proceeding was held, a voluntary acknowledgment of paternity shall create a rebuttable presumption as defined by s. 90.304, of paternity § 742.10(1), Fla. Stat. (1995) (emphasis added).

In In re Estate of Smith, 685 So.2d 1206, 1208 (Fla.1996), the Supreme Court agreed with the conclusion of the first district and held that “paternity may be established in the course of probate proceedings.” The first district had concluded that section 732 does not require that an adjudication of paternity in probate be by an action pursuant to chapter 742, explaining:

To the contrary, it would seem to us that inclusion in the Probate Code, chapter 732, of a provision allowing intestate succession by the illegitimate child of a father indicates that the issue of paternity may be properly adjudicated in the probate proceeding.

. . .

Based on Estate of Smith, we agree that chapter 732 controls in this probate proceeding. The decedent’s written acknowledgment in this case thus establishes paternity for purposes of intestate succession. . . .

Foreign Jurisdiction Adjudication

Florida law requires abiding by a determination of paternity from a foreign jurisdiction:

742.105 Effect of a determination of paternity from a foreign jurisdiction.A final order of paternity entered in a foreign jurisdiction, whether resulting from a voluntary acknowledgment or an administrative or judicial process, or an affidavit acknowledging paternity signed in any other state according to its procedures, shall be given the same legal effect as if such final order was entered or affidavit was signed pursuant to this chapter. In any proceeding in this state, a certified copy of the final order of paternity from a foreign jurisdiction shall be conclusive evidence of paternity.

Some foreign jurisdictions may have more options for establishing paternity, and may not have a statute of limitations like Florida has.  As an example, Bahamian law has more options for establishing paternity than does Florida.  For persons born in the Bahamas, seeking an adjudication of paternity in the Bahamas might be a good option.

Oral Argument at 5th District Court of Appeals

Jeffrey Skatoff

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(561) 842-4868


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