Florida/Georgia Personal Injury & Workers Compensation

...is paternity thereby obviating any necessity for support on his part. It should be noted that if this result were permitted to occur, the children would also be deprived from inheriting from either father in case of intestacy under the provisions of § 732.108(2), Florida Statutes, which provides: "For the purpose of intestate succession in cases not covered by § 732.108(1), a person born out of wedlock is a lineal descendant of his mother and is one of the natural kindred of all members of the mother's family....

...ate. It is reasonable for the Legislature to classify only unmarried women as able to bring paternity suits to prevent presumed legitimate children from losing the benefit of the presumption. Striking the statute is objectionable for another reason. Section 732.108, Florida Statutes, Chapter 74-106, Laws of Florida, permits a child born out of wedlock to inherit from an intestate father if paternity is established by adjudication....

...at 1408. See also United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1937). [5] In Florida, by statutory law, an illegitimate child can inherit from his father even if paternity is not proved until after the father's death. Section 732.108(2)(b), Florida Statutes (1977)....

...The Florida Probate Code now provides that, for purposes of intestate secession, a child born out of wedlock may be the lineal descendant of his mother and also of his father, provided paternity is established either before or after the father's death. See § 732.108(2), Fla....

...uld be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application...." 42 U.S.C.A. Sec. 416 (h)(2)(A). 17 Florida Statute section 732.108 governs intestate succession and the inheritance rights of persons born out of wedlock: 18 [A] person born out of wedlock is a lineal descendant of his.......

...father and is one of the natural kindred of all members of the father's family, if ... (b) The paternity of the father is established by an adjudication before or after the death of the father. (c) The paternity of the father is acknowledged in writing by the father. 19 Fla.Stat.Ann. Sec. 732.108(2)(b)-(c) (Supp.1989)....

...An adopted child is no longer the "heir" or "descendant" of the natural parent. [11] The adopted child is transformed by legislative fiat to become the heir, issue and descendant of the adopting parent as well as the other members of the adopting family. Section 732.108(1), Florida Statutes (1979), provides: For the purpose of intestate succession by or from an adopted person, the adopted person is a lineal descendant of the adopting parent and is one of the natural kindred of all of the members of the adopting parent's family ......

...h Ed. 1977). [10] In re Estate of Evans, 31 Ill. App.3d 753, 334 N.E.2d 850 (1975). 95 C.J.S. Wills §§ 692, 695 (1957). Arnold v. Wells, 100 Fla. 1470, 131 So. 400 (1930). 28 Am.Jur.2d Estates § 276 (1966). 80 Am.Jur.2d Wills § 1434 (1975). [11] § 732.108(1), Fla. Stat. (1979). [12] The court said this statute was based on the first adoption statute in Florida of 1885. [13] § 732.108(1), Fla. Stat. (1979); § 732.608, Fla. Stat. (1979). In re Levy's Estate, 141 So.2d 803 (Fla. 2d DCA 1962) was clearly "overruled" by § 732.108(1), Fla....

...Thomas Corbin & Rana Holz, Distinguishing Legitimacy From Paternity: Has Legitimacy Become a Label Without Substance Under Florida Law?, Fla. B.J., Jan. 1999, at 57; Kimberly G. Montanari, Note, Does the Presumption of Legitimacy Actually Protect the Best Interests of the Child?, 24 Stetson L.Rev. 809 (1995). [1] § 732.108(2)(b), Fla....

...We note that this statute has been amended by the Legislature to allow an illegitimate child to take an intestate share if the paternity of the child is adjudicated, either before or after the death of the father. [4] This new statutory *156 modification, Section 732.108, Florida Statutes (1977), did not take effect until January 1, 1976, and is therefore inapplicable to this case....

...An illegitimate child whose parents inter-marry and who is acknowledged by the father as the father's child shall be considered legitimate. [3] Trimble, supra, 430 U.S. at 771, 97 S.Ct. at 1466, citing Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). [4] Section 732.108(2), Fla....

...The effect of this order was to disinherit the decedent's mother and to constitute Nicole sole heir of the estate. Helen Robertson appeals, listing three grounds for reversal of the order of July 21, 1987. In her first point on appeal appellant contends that Nicole cannot be "one of the natural kindred of the deceased" under section 732.108(2)(b), Florida Statutes (1985), because Linda was married to David when the child Nicole was born....

...riod of time in which she conceived three children, where the purpose of the testimony was to establish that another man was the father of those children for heirship purposes. Williams and Jerrido, however, although decided in 1976, interpreted not section 732.108, Florida Statutes (1985), but section 731.29, Florida Statutes (1973), which was the predecessor to section 732.108....

...In the present case, as in Broxton, the bare language of the current statute literally applied does not fit the factual situation. However, since it appears that one of the underlying purposes of the statute is to permit children to inherit from their natural fathers, we conclude that the lower court did not err in applying section 732.108(2), although Nicole was not born "out of wedlock." As stated by this court in Jerrido, a statute legitimating children for inheritance purposes is to be liberally construed to effectuate its purpose....

...ESTATE of Lawrence Edward ODOM, Deceased, Appellee. No. 80-1235. District Court of Appeal of Florida, Second District. April 24, 1981. *421 Michael K. Stuckey and Richard Motley, Clearwater, for appellant. William H. Walker, St. Petersburg, for appellee. CAMPBELL, Judge. Pursuant to section 732.108(2)(b), Florida Statutes (1979), appellant Donna D....

...Setzer, 375 So.2d 61 (Fla.2d DCA 1979). The trial court agreed and dismissed appellant's petition specifically relying upon Bell v. Setzer, supra , as controlling over the arguments of appellant that In re Estate of Burris, 361 So.2d 152 (Fla. 1978), and section 732.108(2)(b), Florida Statutes, authorize such an action....

...father, so does an action under chapter 742 likewise abate with the death of the putative father since the statute contains no language in derogation of the common law rule. Although this court in Bell discusses the possibilities of an action under section 732.108(2)(b) for the determination of paternity for inheritance purposes, that issue was not before the Bell court....

...Bell like Carpenter was an action for the determination of paternity for the purpose of child support pursuant to chapter 742. Appellant's petition below did not involve chapter 742 or child support, but involved solely the determination of paternity for the purpose of inheritance under section 732.108(2)(b), a different action entirely. In sustaining appellant's petition below, we look to a number of decisions of the Florida courts that have interpreted section 732.108(2)(b) and chapter 742, Florida Statutes, as well as decisions in other jurisdictions that have considered similar statutes. As this court in Bell pointed out, clearly the legislature by enacting section 732.108(2)(b) intended to allow an action to determine paternity for inheritance purposes....

...e legislature intended a remedy that already existed. In re Estate of Burris, supra , is helpful in *423 concluding that appellant has sought the correct remedy. There the court examined section 731.29(1), Florida Statutes (1973), the predecessor to section 732.108(2)....

...herit intestate property of its natural father's estate only if paternity was proved by a written and witnessed acknowledgement of paternity by the father. The court there noted that the legislature had subsequently amended the provision by enacting section 732.108(2), where, in addition to written acknowledgement, an illegitimate child would be allowed to inherit from its father if paternity was adjudicated either before or after death. Since the prior statute allowed paternity for inheritance purposes to be established after the death of the father in an action against the putative father's estate only with proof of an acknowledgement in writing, the amended section 732.108(2) must be construed as expanding the method of proof of paternity based on evidence other than a written acknowledgement....

...So in such a case where does appellant turn? It is clear to us that her petition below was a proper action. Section 733.105, Florida Statutes (1979), is a provision for, among other things, determination of beneficiaries when property passes by intestate succession. Section 733.105(3) seems to perfectly mesh with section 732.108(2)(b), both being a part of the Florida Probate Code. We feel it helpful to set out here the applicable provisions of those sections to see how clearly they interrelate. Section 732.108(2), Florida Statutes (1979): For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his mother and is one of the natural kindred of all members of the mother's family....

...the default on the grounds of excusable neglect. The trial court denied the motion to vacate and the district court reversed, holding, among other things, that the appellant alleged a meritorious defense — that decedent was the father of her child. Section 732.108 is similar to and apparently patterned after section 2-109 of the Uniform Probate Code....

...fter the death of the father. In re McCollum's Estate, 88 So.2d 537 (Fla. 1956), considered an action by an illegitimate son to establish his right to inherit from his father's estate under section 731.29, Florida Statutes (1955), the predecessor to section 732.108....

...resence of a competent witness. This is the rule applicable to the establishment of constructive trusts by parol evidence, Lightfoot v. Rogers, Fla., 54 So.2d 237, and we think it is the rule that should be applied in the situation here. Id. at 540. Section 732.108(2) now provides for adjudication of paternity after the father's death by evidence of an acknowledgement of paternity in writing by the father or by any other admissible evidence....

...The issue presented is whether appellee's death during the pendency of the suit abated appellant's cause of action. We hold that, under present Florida Law, the death of the putative father during the pendency of a paternity suit does abate the cause of action. Section 732.108(2)(b), Florida Statutes (1977), states that a person born out of wedlock is a lineal descendant of his father if the paternity of the father is established by an adjudication before or after the father's *62 death....

...al child and changing its surname to hers); but cf. Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (striking down on equal protection grounds statute rendering illegitimate child ineligible to inherit from father by intestacy); § 732.108, Fla.Stat....

...The rights of adopted children are thus equally as extensive and permanent as the rights of natural children and provide a child with support, privacy, inheritance, and the right to make a claim for losses suffered if the adoptive parent is injured or killed. See § 732.108, Fla....

...The rights of adopted children are thus equally as extensive and permanent as the rights of natural children and provide a child with support, privacy, inheritance, and the right to make a claim for losses suffered if the adoptive parent is injured or killed. See § 732.108, Fla....

...n are his parents or the survivor of them. § 732.103, Fla. Stat. (2006). Where children are adopted or born out of wedlock, natural kinship is not necessarily recognized for purposes of establishing a decedent's heirs and thus intestate succession. Section 732.108, Florida Statutes (2006) provides: (1) For the purpose of intestate succession by or from an adopted person, the adopted person is a lineal descendant of the adopting parent and is one of the natural kindred of all members of the adop...

...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....

...Although it is possible to establish paternity in a probate proceeding, see In re Estate of Smith, 685 So.2d 1206, 1208 (Fla.1996), where a chapter 742 paternity action has previously been brought, any resulting determination of paternity has the effect of determining the issue for intestate succession. Id. Section 732.108(2)(b) does not create a separate independent cause of action to establish paternity....

...Based on those findings, the probate court determined that Paul Doody was the sole heir of his natural father's estate. We reverse. Our basic disagreement with the probate court is in its conclusion that to find against the natural son would require a retrospective application of Section 732.108(1), Florida Statutes (1979), which was in effect on the date of death of Paul's natural father in 1977....

...Until the natural father died, the natural son had had only an expectancy or prospect of inheritance; [1] he was an heir apparent. Consequently, any legislation prior to the death of the father did not divest any rights to intestate succession since none were vested at that time. Retrospective application of Section 732.108(1) would have occurred only if the date of death had been prior to the effective date of the statute....

...Additionally, Christopher petitioned the court to adjudicate his paternity, to determine the heirs of Wilmer Breedlove, and to declare himself a lineal descendant of Wilmer Breedlove. Ben Breedlove moved to dismiss Christopher's claims contending, in essence, that Christopher was not a lineal descendant within the meaning of section 732.108, Florida Statutes (1989)....

...adoption" and that "virtual legitimation" does not exist as a distinct doctrine in Florida law. However, in denying Christopher's petition to have himself declared a lineal descendant of Wilmer Breedlove, the trial court apparently did not consider section 732.108(2)(b) which provides that a person born out of wedlock is a lineal descendant of his father if "[t]he paternity of the father is established by an adjudication before or after the death of the father." Thus, by virtue of that subsecti...

...tative heir, for purposes of intestate succession, may prove paternity by evidence other than a written acknowledgment of paternity by the father or the marriage of the natural parents before or after the birth of the person born out of wedlock. See section 732.108(2)(a) and (c). However, the standard of proof under section 732.108(2)(b) should be clear, strong and unequivocal, that is, the person born out of wedlock should prove paternity by clear and convincing evidence. See In re Estate of Odom, 397 So.2d 420 (Fla. 2d DCA 1981). Since the trial court did not consider the evidence in terms of section 732.108(2)(b), we reverse and remand the cause for the trial court to reconsider this issue....

...[1] REVERSED and REMANDED for further proceedings consistent with this opinion. SMITH and KAHN, JJ., concur. NOTES [1] Because of our disposition of this case in this manner, we do not reach Christopher Breedlove's point challenging the constitutionality of section 732.108 on the basis that it allegedly denies equal protection of law to illegitimate children....

...Nathan had had two children— Paul, the appellant, and Zena, who predeceased Jacob. Zena and her husband had adopted Perry, the appellee. When Zena’s husband remarried, his second wife adopted Perry. In reaching its conclusion that Perry should share in the estate under sections 63.172(2), 732.108(1), Florida Statutes (1983), the trial court stated: PERRY CARL SWARTZ shall be permitted to inherit by intestacy from the family of his deceased mother, Zena Kanev-sky Swartz, including his mother’s uncle, the decedent, Jacob Kanevsky....

...rposes, adoption severs the ties between the adopted child and his prior parents and affiliates the child with his adoptive parents. This exception is recognized in both the Florida Adoption Act (F.S. § 63.172(2)) and the Florida Probate Code (F.S. § 732.108(l)(b)), which provide that a child shall be entitled to inherit from or through a deceased parent even though he is subsequently adopted by the spouse of his surviving parent....

...parent’s family.” Under these circumstances, and in light of the clear intent of the Legislature to put children by adoption on an equal footing with children by blood for inheritance purposes, the term “natural”, as used in Florida Statute Section 732.108(l)(b), should not be interpreted to discriminate in any way between adopted children and children of the blood in the application of the exception....

...rine in Florida law. However, in denying Christopher's petition to have himself declared a lineal descendant of Wilmer Breedlove [Christopher claimed to be the child of Wilmer by Wilmer's former employee], the trial court apparently did not consider section 732.108(2)(b) which provides that a person born out of wedlock is a lineal descendant of his father if "[t]he paternity of the father is established by an adjudication before or after the death of the father." Thus, by virtue of that subsecti...

...succession, may prove paternity by evidence other than a written acknowledgment of paternity by the father *456 or the marriage of the natural parents before or after the birth of the person born out of wedlock. However, the standard of proof under section 732.108(2)(b) should be clear, strong and unequivocal, that is, the person born out of wedlock should prove paternity by clear and convincing evidence. See In re Estate of Odom, 397 So.2d 420 (Fla. 2d DCA 1981). Since the trial court did not consider the evidence in terms of section 732.108(2)(b), we reverse and remand the cause for the trial court to reconsider this issue....

...to DNA testing because section 742.12 provides for testing of only the mother, child, and alleged fathers, not the legitimate children of a deceased putative father. The court denied Madelin's motion. Madelin filed a second motion, this time citing section 732.108(2)(b), Florida Statutes (2005), [4] which recognizes that a child born out of wedlock may obtain an adjudication of paternity after the death of the father, and case law recognizing that paternity can be established in a proceeding to determine the beneficiaries of a trust....

...Adrian and Evelyn again objected arguing that the court was without authority to compel them to submit to DNA testing. Additionally, the Does argued that section 760.40, Florida Statutes (2005), prohibits the court from ordering them to submit a DNA sample for testing. After a hearing, the court, citing section 732.108, granted Madelin's motion....

...equal to those of Evelyn and Adrian. Further, her interests are akin to those of an out of wedlock child seeking to share in the intestate estate of a parent. Florida recognizes the right of an out-of-wedlock child to share in a parent's estate. See § 732.108(2). Florida also recognizes the right of a child born out of wedlock to establish paternity after the death of the father. See § 732.108(2)(b)....

...Because I believe that the circuit court was bound by the limitations in section 760.40, I would answer that question in the affirmative and grant the writ of certiorari. I agree with the majority that DNA testing is authorized for a determination of paternity for a person born out of wedlock under section 732.108(2)(b), Florida Statutes (2005)....

...tive sibling to submit to DNA testing, the prohibition against DNA testing without informed consent in section 760.40(2)(a) applies to putative siblings. In this case, the guardian for Madelin properly sought an adjudication of paternity pursuant to section 732.108(2)(b) after the decedent's death....

..., mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory. [4] Section 732.108(2)(b) provides: (2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his or her mother and is one of the natural kindred of all members of the mother's family....

...o not relate to the trial court's order from which the appeal was taken. Simpson's contentions that the personal representative of Roosevelt Norton's estate delayed in filing an inventory list, that counsel for the estate did not provide proof under section 732.108, Florida Statutes, for heirs born out of wedlock, and that the personal representative and counsel for the estate should be sanctioned, are without merit....

...McDONALD, C.J., dissents with an opinion. EHRLICH, J., dissents. McDONALD, Chief Justice, dissenting. I would affirm and approve the decision of the district court of appeal. NOTES [1] The doctor's statement had been given in order to allow Atwell to enlist in the Army. [2] Section 732.108(2), Florida Statutes (1985), makes children born out of wedlock the lineal descendants of their mothers and, under certain circumstances, their fathers.

...etent witness, that he fathered the aforesaid child. Appellant contends that the determination of parentage in this cause is governed by the new probate code which repealed the old code of which § 731.29, Fla. Stat. 1973, was a part; that now under § 732.108, Fla. Stat. 1975, (the new code) no written acknowledgment of parentage is necessary; that the probate court *131 should have recognized § 732.108, Fla....

...1976. The new Florida Probate Code, which became effective on January 1, 1976, repealed the old code with certain exceptions mentioned in § 731.011, Fla. Stat. 1975, which will be subsequently discussed. The appropriate statute under the new Code, § 732.108 provides in pertinent part as follows: " Adopted persons and persons born out of wedlock....

...§ 416(h)(2)(A) ("Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.") The intestate succession of children born out of wedlock is governed by Florida Statutes § 732.108(2), which in 1994 provided as follows: (2) For the purpose of intestate succession in cases not covered by subsection (1) [dealing with adopted children], a person born out of wedlock is a lineal descendant of his mother and is one of the natural kindred of all members of the mother's family....

...Rather, the Commissioner argues that the subsequent blood tests and the dismissal of the state paternity suit against Sanders prevents the written acknowledgment from having continued validity. The Court first makes explicit what is seemingly not disputed by the Commissioner. Fla.Stat. § 732.108(2)(c) requires no particular form of written acknowledgment....

...We affirm for three reasons: first, because by the time Rose’s petition was filed, his paternity claim had already been extinguished by section 95.11(3)(b) of the Florida Statute (1986), the applicable statute of limitations; second, because the 2009 amendment to section 732.108(2)(b) of the Florida statutes, which eliminated application of section 95.11(3)(b) to paternity determinations in probate proceedings relating to intestate succession, does not apply retroactively; and, third, even if the 2009 amendment to section 732.108(2)(b) were retroactive in application, it could not breathe new life into Rose’s previously extinguished claim. The facts are relatively undisputed....

...Supreme Court in In re Estate of Smith, 685 So. 2d 1206 (Fla. 1996). Following a 3 hearing on the motion, the trial court dismissed Rose’s counter-petition concluding: (1) that the 2009 amendment to section 732.108(2)(b) of the Florida Statutes which eliminated the four year statute of limitations previously applicable to paternity determinations could not revive Rose’s already extinguished claim; (2) that the 2009 amendment to section 732.108(2)(b) did not apply retroactively because the Florida Legislature did not express a clear intent it was to be so applied; and, (3) that any such retroactive application would constitute a violation of the decedent’s and of the co...

...For the following reasons, we agree with the trial court and affirm. In Smith, the Florida Supreme Court considered whether the four year limitations period generally applicable by section 95.11(3)(b) barred a sixty-year- old putative daughter from bringing a section 732.108(2)(b) paternity action in probate court to establish her right to intestate succession. Smith, 685 So. 2d at 1207-08. Therein, the Court expressly rejected the notion “that section 732.108(2)(b) creates a separate and distinct statutory cause of action [for determining paternity in probate courts] which begins to run upon the death of the putative father rather than when the child reaches the age of majority.” Id. at 1208 (footnote omitted). Rather, reasoning that because section 732.108(2)(b) did not expressly remove paternity adjudications brought in probate court from the 4 provisions of section 95.11(3)(b), the Court determined that while chapter 742 recognized that p...

...Id. We therefore agree with the trial court that here, as in Smith, the putative child’s paternity claim following Sonson’s death in 2012 is time barred because more than four years has passed since Rose attained majority in 1982. We also agree with the trial court that the 2009 amendment to section 732.108(2)(b) of the Florida Statutes, which expressly eliminated application of section 95.11(3)(b) to paternity adjudications when determining intestacy 1 The Court also pointed out that while most paternity actions brought under chapter...

...made in such proceedings also determines paternity for purposes of intestate succession.” Smith, 685 So. 2d at 1208. 5 succession in probate court, does not affect this outcome. See Ch. 2009-115, § 2, at 1508, Laws of Fla.; § 732.108(2)(b), Fla....

...(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.”). This is because the Florida Legislature did not make the amendment to section 732.108(2)(b) retroactive in its application2 and applying the 2009 amendment to that provision would not have affected the outcome in any event. This is so because by the time the 2009 amendment to section 732.108(2)(b) took effect to eliminate the limitations bar previously imposed by section 95.11(3)(b), Rose’s claim had long since expired, and as noted in Smith, “[o]nce a claim has been extinguished by the applicable statute of limita...

...d 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.”). Thus, while section 732.108(2)(b) as amended in 2009 provided relief to similarly situated individuals with existing causes of action by eliminating the four year statute of limitations imposed by section 95.11(3)(b) on paternity determinations in probate pro...

...child and changing its surname to hers); but cf. Trimble v. Gordon, 430 U.S. 762 , 97 S.Ct. 1459 , 52 L.Ed.2d 31 (1977) (striking down on equal protection grounds statute rendering illegitimate child ineligible to inherit from father by intestacy); § 732.108, Fla.Stat....

satisfies the acknowledgment requirement of Section 732.108(2)(c), Florida Statutes (1979). The pertinent

...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). 8 cite to section 732.108(2)(a) of the Florida Statutes, which states, in relevant part: “For the purpose of intestate succession ....

.... . 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, Bivens 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, ....

...o 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)....

...But, under Florida law, “death, by operation of law, . . . terminate[s] the marriage.” See MacLeod v. Hoff, 654 So. 2d 1250, 1251 (Fla. Dist. Ct. App. 1995) (applying this principle in a divorce proceeding). An- other provision, Florida Statute § 732.108(2), applies to “persons born out of wedlock,” but it is unclear to us if any of the requirements within this statute apply to posthumously conceived children, especially because Florida Statute § 732.106 specifically...

purposes of intestate succession pursuant to section 732.108, Florida Statutes (1995). Appellants contend

succession. Moreover, there is another statute, Section 732.108, Florida Statutes (1979), which deals with

...��s adoption. *609 Pursuant to sections 72.22 and 731.30, Florida Statutes (1959), which were in effect at the time that Ray Alan was adopted, an adopted child could inherit from his natural or blood parents. However, pursuant to sections 63.172 and 732.108, Florida Statutes (1979), which were in effect at the time of Orlan Ray’s death, an adoption terminates the legal relationship between the adopted child and his natural parents, so that for purposes of intestate succession the adopted child is no longer a lineal descendant of the natural parent....

...The probate court found that Ray Alan’s right to be an heir of his natural father was acquired at the moment of his birth and that Ray Alan’s adoption by his stepfather did not deprive Ray Alan of his right to share in the estate of his natural father. The probate court further found that if section 732.108, Florida Statutes (1979), was applied to deprive Ray Alan of his rights to share in the estate of his natural father, that statute would be unconstitutional....

...777 , 32 So.2d 840 (1947); Estate of Huskea 2 Since the right to inherit did not vest until the death of the intestate, the statutes attacked as unconstitutionally applied in this case did not deprive Ray Alan of any vested rights and therefore sections 63.172 and 732.108, Florida Statutes (1979) are not unconstitutional as applied to Ray Alan in this case....

adjudication before or after the death of the father.” § 732.108(2)(b), Fla.Stat. (1991) (e.s.). Prior to the effective

...In the probate proceeding below, the estate filed its motion for summary judgment upon which the trial court found that Fagan was not a lineal descendant of the decedent. It found that Fagan had not offered any evidence to comply with the requirements of section 732.108(2), Florida Statutes (2000), and that her affidavits did not create a material issue of law or fact. We reverse. Section 732.108(2) provides: (2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his or her mother and is one of the natural kindred of all members of the mother’s family....

...1996) dispositive of the issue. Thereafter, Bellamy moved for rehearing on the basis that Rose was wrongly decided and that the rules of statutory construction allowed her claim to determine heirship because the Florida Legislature carved out a new cause of action in the 2009 amendment to section 732.108(2)(b), Florida Statutes....

...The trial court granted this motion, vacated its prior order and denied the Personal Representative’s Motion for Summary Judgment. We disagree with the trial court’s conclusion that Rose was wrongly decided. The Rose court held that the Florida Legislature did not make the amendment to section 732.108(2)(b) retroactive in its application. In Bellamy’s case it is equally certain that applying the 2009 amendment to that provision would not have affected the outcome. As Rose provides, This is so because by the time the 2009 amendment to section 732.108(2)(b) took effect to eliminate the limitations bar previously imposed by section 95.11(3)(b), Rose's claim had long since expired, and as noted in Smith, “[o]nce a claim has been extinguished by the applicabl...

...terest. . . . 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.”). Thus, while section 732.108(2) (b) as amended in 2009 provided relief to similarly situated individuals with existing causes of action by eliminating the four year statute of limitations imposed by section 95.11(3)(b) on paternity determination...

...ndment provides no relief to those such as Rose whose claims had already expired by the time the amendment became law. Rose, 208 So. 3d at 139–40. Accordingly, as there is no explicit statutory language in the 2009 amendment to section 732.108(2)(b) to indicate that the Florida Legislature intended to create a new and separate cause of action that would not be subject to the statute of limitations, Bellamy’s right to establish paternity was extinguished in 1981—four...

bringing a paternity action in probate under section 732.108(2)(b), Florida Statutes (1991), for the purpose

...McRae, Kevin McRae, and Walter J. Byard in final judgments of paternity entered by the Du-val County circuit court and required to pay child support for their benefit, which he was doing at the time of his death. The response further alleged that pursuant to section 732.108(2), Florida Statutes (1985), all the minor heirs were lineal descendants of Walter Byard and entitled to share equally in the assets of the estate available for distribution after payment of claims to creditors and costs of administration....

PER CURIAM. When Willie Anderson died, the appellant, then twenty-six years of age, claimed to be entitled to an interest in the estate as an illegitimate heir, pursuant to section 732.108(2), Florida Statutes....

an intestate succession plan pursuant, to section 732.108, Florida Statutes (2006). Ms. -Rocke then initiated

...The only exception to these general rules is that “rights of inheritance shall be as provided in the Florida Probate Code.” Id. The Florida Probate Code, in turn, circumscribes the legal effect of adoption on intestate succession. See § 732.108, Fla....

...Donoyan in the Eighth Judicial Circuit in and for Alachua County, where Donoyan’s estate was being probated. Following various and sundry pleadings and change of attorneys, a motion for judgment on the pleadings was filed and heard by the trial judge, before whom it was urged that § 732.108, Florida Statutes, was unconstitutional in that it violated both the federal and Florida constitutions; and further that if the said section was constitutional, Ralph Donald did not fall within the purview of the statute....

...h determinations were a necessary incident to the adjudication of the ultimate relief sought in the particular proceedings involved. However, this case was correctly decided by the trial court in holding that Ralph Donald falls within the purview of § 732.108 and is barred as a matter of law from asserting a claim as the lineal descendant of Donoyan....

...rd equal protection under the federal or state constitutions, and we believe this argument to be without merit. Appellant has furnished us with an abundance of statistical information regarding the increase of illegitimacy and the social reasons why § 732.108 should be declared unconstitutional....

...of which affords him full and equal protection to inherit from his adoptive parents. In conclusion, the order of the trial judge is affirmed insofar as it holds the statute is constitutional and that Ralph Donald Wilburn comes within the purview of § 732.108(1), thereby being barred as a matter of law from asserting a claim as a lineal descendant of his alleged father....

VAN NORTWICK, J. Dorothy J. Thurston appeals an order denying her petition which sought a determination that she was a lineal descendant under section 732.108(2)(a), Florida Statutes (1995), 1 and a beneficiary of the estate *1002 of the deceased, Edward Lloyd Thurston. Appellant argues that the trial court erred in ruling (i) that a proceeding under section 732.108(2)(a) is an action relating to the determination of paternity within the meaning of section 95.11(3)(b), Florida Statutes (1995); 2 and (ii) that, since appellant had reached majority more than four years prior to filing her petition, her claim was time barred under section 95.11(3)(b). We agree with the trial court that a proceeding under section 732.108(2)(a) is an action relating to paternity to which section 95.11(3)(b) applies....

...Thurston was born on October 23, 1966. Her birth certificate lists Edward Lloyd Thurston as her father. When Edward Thurston died intestate on September 3, 1995, appellant filed a petition seeking a determination that she was a lineal descendant of the deceased pursuant to section 732.108(2)(a). Section 732.108(2) provides three alternative means by which a person born out of wedlock can establish that she is a putative heir for purposes of intestate succession: (a) the natural parents marry before or after the birth of the person born out o...

...djudication before or after the death of the father; (c) the father acknowledges the paternity in writing. Breedlove v. Estate of Breedlove, 586 So.2d 466, 467 (Fla. 1st DCA 1991). We agree with the trial court that both subparagraphs (a) and (b) of section 732.108(2) require an adjudication of paternity based upon clear and convincing evidence submitted by the person born out of wedlock. Id. The instant action was brought under subparagraph (a) of section 732.108(2)....

...Thus, the supreme court’s decision in In re Estate of Smith, 685 So.2d 1206 (Fla.1996), cert. denied sub nom., Scruggs v. Wilson, 520 U.S. 1265 , 117 S.Ct. 2434 , 138 L.Ed.2d 195 (U.S.Fla. June 9, 1997)(No. 96-1615), in which the court held that an adjudication under subparagraph (b) to section 732.108(2) is an action relating to the determination of paternity to which section 95.11(3)(b) applies, is controlling in the instant case. Our interpretation of subparagraph (a) of section 732.108(2) reflects the legislative intent expressed in the amendments to this section’s predecessor. Section 731.29(1), the predecessor to section 732.108(2), provided as follows: Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father....

...eputed father” in the sense contemplated by section 731.29(1). Consequently, the marriage of William to Mar-celle made Charles legitimate for all purposes, thereby rendering factual proof of paternity by William irrelevant. Id. By enacting current section 732.108(2), the legislature replaced section 731.29(1) with provisions taken from section 2-109 of the Uniform Probate Code of 1969. See Historical and Statutory Notes, 20B Fla. Stat. Ann. 59 (West 1995)(annot. to § 732.108, Fla....

...891 (1997)(describing Florida as a state which has adopted the 1969 Uniform Probate Code, but not the Uniform Parentage Act). In doing so, the legislature liberalized the marriage requirements of section 731.29(1) by providing in subparagraph (a) to section 732.108(2) that a person is a lineal descendant whether the marriage occurs before or after the birth of the person born out of wedlock....

...At the same time, however, we read subparagraph (a) as also imposing a requirement for the adjudication of paternity, because the legislature has provided that subparagraph (a) is only applicable where the “natural parents” participated in the marriage ceremony. Thus, although 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, see Breedlove, it requires the putative heir to also establish that the marriage was between his or her natural parents....

...ituation in which a person born out-of-wedlock seeks to establish that he or she is a lineal descendant of a man who married the mother, but who did not separately acknowledge paternity; and to render the requirements of subparagraphs (a) and (b) of section 732.108(2)(a) substantively identical with respect to the requirement for a formal determination of paternity. Nevertheless, we conclude that the statutory language dictates such an interpretation. AFFIRMED. BOOTH AND JOANOS, JJ., CONCUR. . Section 732.108(2) provides in pertinent part: (2) For the purpose of intestate succession ......

...as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application_” 42 U.S.C. A. § 416(h)(2)(A). Florida Statute section 732.108 governs intestate succession and the inheritance rights of persons born out of wedlock: [A] person born out of wedlock is a lineal descendant of his.......

...father and is one of the natural kindred of all members of the father's family, if ... (b) The paternity of the father is established by an adjudication before or after the death of the father, (c) The paternity of the father is acknowledged in writing by the father. Fla.Stat.Ann. § 732.108(2)(b)-(c) (Supp....