Fatherhood is a beautiful thing. From changing diapers to taking your child to soccer practice to watching them walk across the graduation stage. Being a father means supporting your child through challenging situations and shaping them into the person they are meant to become.
Being a father not only comes with responsibilities but legal rights. In the legal sense, paternity is the official and legal declaration of a father to their child. An establishment of paternity recognizes the legal rights and benefits attributed to the father, child, and even mother. A child’s legal father may actually be different from their biological father. As a legal parent, the father has parental responsibility, custody, and visitation rights.
If the parents are married when the child is born, paternity is presumed and automatically established; this presumption is nevertheless rebuttable. The paperwork establishing paternity is filled out by the hospital at birth.
Establishing paternity of a child born outside of marriage is a bit more complicated. Imagine someone has a child with another man, or comes out of the blue, suggesting a certain male is the father. Who is the father? How do we know who is the father? When it comes to a child born outside of marriage, there are several ways to establish paternity under Florida law: (1) marriage, (2) legitimation or acknowledgement of paternity, (3) a court order, and (4) an administrative order based on genetic testing.
Marriage: If the parents are unmarried at the child’s birth but later decide to marry, paternity is established during the marriage license process. Although the husband becomes the legal father, the parents must jointly fill out a form to add the father’s name to the birth certificate.
Legitimation or Acknowledgement of Paternity: If the parents are unmarried at the child’s birth, paternity can nonetheless be established if the couple voluntarily fills out an “Acknowledgement of Paternity” form in the presence of a notary; this can be done at the hospital during the child’s birth or on a later date. Signing this document states that the male signatory assents to being the child’s father. The legal father’s name will appear on the child’s birth certificate.
Court Order: When paternity is in dispute, a court may hear evidence regarding the child’s alleged father. After hearing the evidence, and possibly after some form of DNA testing, the judge may establish paternity and adjudge that the alleged father is the true legal father.
Administrative Order Based on Genetic Testing: The court can order that an alleged father undergo genetic testing to determine paternity. An administrative order may then be issued that establishes paternity.
How does paternity affect estate planning? It depends on the circumstances. If the father knows about the child and decides to set an estate plan in order, he can choose to include them in his Will or Trust, or intentionally omit the child from the testamentary documents.
Lucky for children in Florida, Florida law establishes that children have a right to inherit from a parent’s estate when the mother or father dies intestate—in other words, without a will or testamentary document. Under Florida law, there are no differences regarding inheritance between children born out of wedlock, children born during the marriage, or children who have legally been adopted. However, paternity must still be established for children born out of wedlock.
Pretend a father passes away intestate, leaving his assets to be inherited by his known natural children under intestacy laws. Out of the blue, an alleged child born out of wedlock appears to contest his estate distribution. Before said child can inherit anything, paternity must be established. Under Florida Statute § 732.108, the child will be deemed a descendant and therefore the child of the alleged father if:
(1) 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;
(2) the paternity of the father is established by an adjudication before or after the death of the father; and
(3) the paternity of the father is acknowledged in writing by the father.
When it comes to acknowledging paternity, there are no requirements or formalities; whether in a birth certificate, affidavit, or the like, the acknowledgment must simply be in writing. Generally speaking, establishment of paternity after the father’s death is similar to when he was alive.
Whether through marriage or by genuine love for the child, a father is a father. Because the future is uncertain, and things can change in a blink of an eye, it’s important to establish your wishes in writing. Some children may not be legally related to you, but you may still want to leave certain assets for them; on the other hand, some children may be legally related to you, but you don’t want to leave any assets for reasons best known to you. Call us at EPGD Business Law to set up an estate plan now!
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