Q: My grandfather’s will leave everything to his children and their “descendants by blood.” Our family has often gossiped that my uncle Frank is not really the father of my cousin Frankie. Will they use DNA testing to confirm Frankie is a “descendant by blood” when my grandfather dies?
A: Some people feel that their assets should only be shared with “blood relatives,” meaning they wish to exclude adopted people from sharing their wealth. That opinion has substantially faded over the years, but still shows up in older wills and trusts.
More recent thought has generally treated adopted persons equally with blood relatives for all purposes, including inheritance and descent. This is emphasized in Section 732.108 of Florida Statutes, which makes adopted persons a descendant of the adopting parent for purposes of intestate succession. Intestate succession is the statutory direction for distribution of assets when someone dies without a will. That statute does not apply to wills or trust, allowing them to distinguish between “blood relatives” and others.
On September 4, 2009, Florida’s Second District Court of Appeal waded into this area with a decision in the case of Doe v. Doe. In that case, a trust was established for “living descendents, collectively, of each… deceased grandchild” of the settlor. The trust also specified that “in determining whether any person is a child or descendant, only children and descendants by blood shall be included.” The settlor is the person creating a trust.
Chester was one of the settlor’s grandchildren. In 1966, he married. Six and one-half months later, Catherine was born. Five years later, Chester and his wife divorced and entered a marital settlement agreement that provided Catherine was born of their marriage and included provisions for child support and visitation. The agreement was incorporated into their divorce judgment.
In 1999, Chester’s curiosity got the better of him and he submitted DNA samples from Catherine and himself to 2 laboratories for testing. The results from each laboratory excluded Chester as Catherine’s biological father.
There was no evidence that the settlor was ever informed of the DNA testing and she did not change her trust prior to death. When the settlor died, the trustees filed suit to determine if Catherine was a beneficiary of the trust and argued that Catherine was not “a descendant by blood.”
The court started review by explaining the final judgment dissolving the marriage of Chester and Catherine’s mother approved and incorporated the marital settlement agreement, making Catherine indisputably the legitimate child of Chester. In addition, the court referenced other case law which recognizes the husband as the legal father of a child born to an intact marriage.
The trustees argued that the limitation in the trust was intended to keep “family money” within the family as determined by “lineal consanguinity.” Consanguinity is defined as descending from the same stock or common ancestor. In other words, some of the blood of the common ancestor flows through veins of the person. The trustees focused on the absence of blood tie between Catherine and the settlor.
The court concluded that the legitimate child of a parent is a “blood descendant” for wills and trusts. The judges further explained use of terms such as “descendants by blood” began long before genetic testing existed. The historic intent was to exclude adopted children, but not to challenge legitimacy of a child born in wedlock. The court did not feel the modern advent of DNA testing should change that result.
In Doe, the DNA testing had already taken place. Consequently, the court did not have to address any effort to force DNA testing. Such effort was addressed in the case of
Contino v. Contino, which held that the personal representative of an intestate estate was not entitled to an order for DNA testing of a child born in wedlock to find out if a descendant was a child’s biological father.
These matters can involve heated emotions and one sided claims to entitlement. The facts may determine the results, but much can be spent on expensive litigation fueled primarily by emotion. In these cases, it is crucial to retain competent and experienced counsel before proceeding.