## Facts

- In 1999, James P. Maher III had a son, P.M., with Lyudmila Taran.
- On July 11, 2001, Maher executed a will that left part of his estate to his “children surviving” him (a class gift).
- Maher had a daughter, A.M.I., born December 15, 2000, to Olga Valerievna Iglikova, but Maher did not learn of A.M.I.’s existence until June or July 2002.
- A paternity test in late 2002 or early 2003 confirmed Maher was A.M.I.’s father; after that, Maher made monthly child-support payments for A.M.I. until the probate filing.
- In August 2005, a Massachusetts court ordered A.M.I.’s birth certificate amended to list Maher as her father.
- Maher disappeared in 2004 and was later declared dead; on August 3, 2009, the trial court entered an order declaring him dead and a presumptive death certificate issued.
- Maher’s will was admitted to probate on December 1, 2009.
- On July 13, 2010, Iglikova filed a petition seeking to have A.M.I. determined to be a pretermitted child and to determine the will’s beneficiaries, arguing that post-will paternity adjudication should be treated like a post-will adoption under Florida’s pretermitted-child statute.
- Taran, acting as guardian for P.M. and on behalf of his interests as a beneficiary, moved for summary judgment, arguing (1) A.M.I. was not “born or adopted after” the will’s execution and (2) A.M.I. was not omitted because she fell within the will’s class gift to Maher’s “children surviving” him.
- The probate court denied summary judgment and ruled A.M.I. was a pretermitted child; Taran appealed.

## Issues

1. Under section 732.302, Florida Statutes, can a child who was born before the will was executed qualify as a pretermitted child because paternity was adjudicated after execution of the will?
2. Does a will’s class gift to the testator’s “children surviving” him mean the child was not omitted from the will for purposes of section 732.302?

## Decision

- The Third District Court of Appeal reversed the trial court’s denial of summary judgment and remanded for entry of judgment consistent with its opinion.
- The court held A.M.I. was not a pretermitted child because she was born before Maher executed the will, so she did not meet the statute’s “born or adopted after” requirement.
- The court rejected treating post-will paternity adjudication as the same as post-will adoption, reasoning that paternity adjudication recognizes an existing parent-child relationship rather than creating a new one.
- The court also held A.M.I. was not omitted from the will because the will’s gift to Maher’s “children surviving” him includes Maher’s children living at his death, including A.M.I.

## Legal Principles

- Section 732.302, Florida Statutes, applies only to a child born or adopted after the execution of the will who is omitted from the will (subject to statutory exceptions not applicable here).
- When statutory language is clear, courts apply it as written and do not expand it by analogy.
- Adjudication or acknowledgment of paternity confirms an existing biological parent-child relationship; adoption creates a new legal relationship. The two are not treated as interchangeable under section 732.302.
- A class gift to “children” generally includes all individuals who qualify as the testator’s children at the testator’s death unless the will shows a contrary intent.

## Conclusion

The Third DCA concluded that A.M.I. could not be treated as a pretermitted child under section 732.302 because she was born before Maher executed his will, and because the will’s class gift to Maher’s “children surviving” him included her as a child at his death even though paternity was adjudicated years after the will was signed.


Estate of Maher v. Iglikova, 138 So. 3d 484 (2014)