395 So. 2d 608 | Fla. Dist. Ct. App. | 1981
Lead Opinion
This case involves the question of whether an adopted child has the right to inherit by intestate succession from a natural parent.
Ray Alan Mooney (hereinafter Ray Alan) was born on October 7, 1950, as the natural son of Orlan Ray Mooney (hereafter Orlan Ray). Ray Alan was adopted by his stepfather in Kentucky on August 30, 1960. Or-lan Ray died intestate on June 10, 1979.
Ray Alan filed a petition for determination of heirs in which he sought to have himself determined by the court to be an heir. Elizabeth Mooney, mother and guardian of Donna Rae Mooney, filed an answer in which she alleged that Ray Alan could not be an intestate heir of his natural father due to Ray Alan’s adoption.
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. The probate court then determined that Ray Alan was entitled to share in the distribution of the estate of Orlan Ray. It is this order that Elizabeth Mooney, as guardian for her daughter, is appealing.
In Florida, at the time of birth a child only has an expectancy that he will be an heir of his natural father. Huskea’s Estate v. Doody, 391 So.2d 779 (Fla. 4th DCA 1980).
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. Arciero v. Hager, 397 S.W.2d 50 (Ky.1965); Scott v. Scott, 238 Ind. 474, 150 N.E.2d 740 (1958).
The order on petition for determination of heirs is reversed and this case is remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
. This expectancy gives the child standing to challenge certain actions that would affect his later rights of inheritance. In re Estate of Kant, 272 So.2d 153 (Fla.1973).
. This is the view of most other states that have considered the question. Gamble v. Cloud, 263 Ala. 336, 82 So.2d 526 (1955); Scott v. Scott, 238 Ind. 474, 150 N.E.2d 740 (1958); In re Trainor’s Estate, 45 Misc.2d 316, 256 N.Y.S.2d 497 (1965); In re Estate of Topel, 32 Wisc.2d 223, 145 N.W.2d 162 (1966); Estate of Wiltermood, 78 Wash.2d 238, 472 P.2d 536 (1970); In re Estate of Shehady, 83 N.M. 311, 491 P.2d 528 (1971); Matter of Estate of Adolphson, 403 Mich. 590, 271 N.W.2d 511 (1978). Contra, Matter of Estate of Neuwirth, 155 N.J.Super. 410, 382 A.2d 972 (1978).
Concurrence Opinion
specially concurring:
While I concur in all respects with the majority opinion, I limit my concurrence to this particular factual situation. In this instance, both natural parents were alive at the time appellee was adopted; therefore, they either consented or were given notice as required by law
. § 72.13, Fla.Stat. (1959).