JEW v. Estate of Doe
443 So.2d 249 (1983)
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Rule of Law:
Florida's pretermitted child statute, which grants an intestate share to children "born or adopted after making the will," is to be interpreted strictly, meaning physical birth or legal adoption must occur after the will's execution, not merely subsequent acknowledgment or legitimation of a child born prior to the will.
Facts:
- J.E.W. was born on December 16, 1966, as the illegitimate child of John Doe and an unmarried woman, while John Doe was married to his former wife.
- For approximately nine years after J.E.W.'s birth, John Doe acknowledged that he was J.E.W.'s natural father, frequently provided financial assistance, and promised to support, care for, and adopt or otherwise legitimate J.E.W.
- On March 17, 1982, John Doe executed his Last Will and Testament.
- On April 21, 1982, John Doe executed a Codicil to his Will, which was the last testamentary instrument he executed.
- Neither John Doe's Will nor the Codicil mentioned or provided for J.E.W.
- John Doe died in 1982, and prior to his death, he did not adopt J.E.W., legally or otherwise.
Procedural Posture:
- J.E.W.'s mother, as guardian and next friend of her minor child, brought an action against the Estate of John Doe in the trial court (a court of first instance).
- The complaint sought a declaration that J.E.W. is a pretermitted child entitled to a share of John Doe's estate as if John Doe had died intestate.
- The defendant, Estate of John Doe, filed a motion to dismiss and motion to strike J.E.W.'s complaint.
- The trial court granted the defendant's motions, dismissing J.E.W.'s complaint and finding that J.E.W. is not a pretermitted child entitled to inherit.
- J.E.W., as appellant/plaintiff, appealed the trial court's dismissal to the District Court of Appeal of Florida, First District.
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Issue:
Does a child, who was born illegitimate before the execution of a will but subsequently acknowledged by the testator as his natural child, qualify as a pretermitted child entitled to an intestate share under a statute that applies only to children "born or adopted after making the will"?
Opinions:
Majority - Shivers
No, a child born before the execution of a will, even if subsequently acknowledged by the testator, does not qualify as a pretermitted child under Florida Statutes section 732.302, because the statute applies only to children "born or adopted after making the will." The court held that the unambiguous wording of the statute refers to a physical birth or legal adoption occurring after the will's execution. J.E.W.'s physical birth occurred in 1966, sixteen years before John Doe executed his will, and John Doe never legally adopted J.E.W. Therefore, J.E.W. was neither born nor adopted after the will was made. The court affirmed that this interpretation aligns with the statute's purpose to prevent unintentional disinheritance, noting that John Doe's long-term acknowledgment of J.E.W. makes an inadvertent omission unlikely, suggesting an intentional decision not to provide for him, which is a parent's right under Florida law. The court affirmed the dismissal without prejudice to J.E.W.'s right to pursue a paternity action for other forms of relief not based on being a pretermitted child.
Analysis:
This case establishes a strict interpretation of Florida's pretermitted child statute, emphasizing the temporal relationship between a child's birth or adoption and the execution of the testator's will. It clarifies that mere acknowledgment of paternity or promises to legitimate a child born before the will are insufficient to trigger the statute's protection. The ruling reinforces the principle that courts will apply the plain language of probate statutes and respect a testator's right to disinherit, even acknowledged children, unless there is a clear statutory basis for intervention. This decision limits the scope of protection for illegitimate children under pretermitted heir statutes to those legally born or adopted after the will, while leaving open avenues for other forms of relief through paternity actions.
