In Florida, Although a Minor Child May be Legitimized After the Execution of a Will, if the Child was Board Previously, he or she is not considered a Pretermitted Child

Posted on May 2, 2014

Earlier this month, the Third District Court of Appeals of Florida (“3d DCA”) in Estate of Maher v. Iglikova, 2014 WL 1386660 (Fla. 2d DCA 2014), reversed the trial court’s ruling and held that a child born before the execution of a will, but legitimized afterwards should not be considered a pretermitted child under Florida law.  A pretermitted child is one that is born after the execution of a will, and therefore is entitled to inheritance under a will.  The case arose out of the probate of the estate of James P. Maher, III (“Maher”), who was presumptively ruled dead in 2009 after his disappearance in 2004. 

Maher’s last will and testament, which was last dated in 2001, was admitted to probate on December 1, 2009.  He had fathered two minor children by two separate woman, known by the court anonymously as P.M., who was born in 1999, and A.M.I, who was born in 2000.  Maher did not become aware of the existence of his daughter, A.M.I., until the middle of 2002, when her mother, Iglikova, notified him of her, and he consequently took a paternity test.  Thereafter, he made monthly child support payments to Iglikova for the benefit of A.M.I.  After Maher’s death, Iglikova filed a Petition to Determine Status as a Pretermitted Child, and challenged the will to determine the beneficiaries.  In response, P.M.’s legal guardian, Taran, filed a motion for summary judgment, and argued that A.M.I. was not a pretermitted child under Florida law because she was not omitted from the will, as she was included in a class gift for “children surviving Maher,” and because she was born before theexecution of the will.  The trial court denied her motion, and thereafter, she appealed.

In their opinion on appeal, the 3d DCA laid out the three elements that must be satisfied for a child to be pretermitted in Florida pursuant to Fla. Stat. § 732.302 (2010).  The statute provides that first; the child must be omitted from the will.  Second, the child was born or adopted after the making of the will, and third, the child had not received a part of the testator’s property equivalent to a child’s part by way of advancement.  Furthermore, a child legitimized by a determination of paternity after the execution of a will is not a pretermitted child.  The Court agreed with Taran, and reasoned that A.M.I. was not a pretermitted child because she shared a class gift for children that survived after Maher’s death, and because she was born in the year 2000, months before the execution of the will in 2001.  Although she was not specifically named in Maher’s will, A.M.I. was not considered omitted because she stands to inherit in the form of a class gift from the will as a child of the decedent.  It is irrelevant to consider the amount or sufficiency of the beneficial interest.

Iglikova argued that because the adjudication of paternity took place after the execution of the will, it should be equated with an adoption and therefore satisfied the second element of pretermitted children in Florida.  But, the 3d DCA did not agree and illustrated that adjudication of paternity merely acknowledges an existing relationship and does not create a legal relationshipbetween the parent and child.  Therefore, because the child was born before the execution of the will, and because she did stand to inherit a class gift, although diminutive, the Court reversed the trial court’s ruling when it denied Taran’s motion for summary judgment and held that A.M.I. should be not be considered a pretermitted child.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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