According to the CDC, approximately 46% of children in Florida are born to unwed mothers. In Florida, a child born out of wedlock may face problems inheriting from their biological father’s estate when their father passes away. Even if the child had a great relationship with their father, they may not be able to inherit if he died without a will naming them as a beneficiary.
When a person dies without a will, their assets pass to their heirs according to Florida’s intestacy laws. A person born out of wedlock is automatically considered to be an heir of their mother and the natural kindred of their mother’s family. On the other hand, the same child will only be considered to be an heir of their biological father and his family if certain conditions are met.
Pursuant to section 732.108 of the Florida Statutes, a child born out of wedlock is an heir of their father only if one of the following is true:
- The parents participated in a marriage ceremony before or after the child was born, even if the marriage was void;
- Paternity was established by adjudication before or after the father’s death; or
- Or the father acknowledged the paternity in writing.
If the child’s parents get married at any time or if the father has acknowledged a child in writing, the child will have the right to inherit from the father’s estate no matter when they were born.
However, judicial adjudication of paternity has some complicated time constraints. Prior to 2009, there was a time limitation on when a child could establish paternity for purposes of probate. If a child born out of wedlock wished to inherit from their biological father’s estate, they needed to establish paternity within 4 years of turning 18. This means if a child did not bring a claim before turning 22, their right to establish paternity was forever barred. However, this changed with an amendment to the law in 2009. Now, a child can establish paternity anytime. Unfortunately, FL courts found that 2009 amendment does not apply retroactively. Therefore, if a child born out of wedlock was older than 22 in 2009, they do not benefit from the amendment, and their claims are still barred to this day unless their father has acknowledged them in writing or their biological parents went through a marriage ceremony at some point before or after their birth.
If you are a child born to unwed parents, you may still be able to inherit from your biological father’s estate. Likewise, if you are the father of a child born out of wedlock and want to ensure that child can inherit from you and your family members, an experienced probate attorney at Lavender Greenberg can help discuss your options.
