PROBATE CORNER
What ’ s In A Name ?
DAVID M . GARTEN
Does the termination of the parent-child relationship effectuated through an adoption and name change severe the biological child ’ s right to recover under the natural parent ’ s will ?
In Taulbee v . Kozel , 2023 Fla . App . LEXIS 274 ; 2023 WL 218784 ( Fla . 3d DCA Jan . 18 , 2023 ), D . F . T . was the only biological child of the decedent and his wife . The decedent ’ s will named his wife as the principal beneficiary of the estate , and D . F . T . as the sole contingent beneficiary if his wife predeceased him . The decedent ' s wife died and D . F . T . was subsequently adopted by Kozel . The trial court ordered a change of name to D . A . K . to reflect Kozel ' s surname and a new middle name . The following year , the decedent died , and D . A . K . sought a judicial determination that he was a beneficiary under the will . The co-personal representatives opposed the petition on the grounds that he did not have a son ( i . e ., by changing his name to D . A . K ., D . F . T cased to exist ). The trial court found in favor of D . A . K . and the appellate court affirmed . The court reasoned :
“ The resolution of this case requires a close examination of several intersecting sources of law . Section 63.172 , Florida Statutes ( 2021 ), entitled " Effect of Judgment of Adoption ," and the common law define the legal relationships that flow from an adoption . Concomitantly , the Florida Probate Code provides the polestar consideration in construing testamentary documents . Under Florida law , " adoption severs the ties between the adopted child and his prior parents and affiliates the child with his adoptive parents ." In re Estate of Kanevsky , 506 So . 2d 1101 , 1102 ( Fla . 3d DCA 1987 ). This principle is codified in section 63.172 , Florida Statutes , which provides , in pertinent part : “ A judgment of adoption . . . terminates all legal relationships between the
adopted person and the adopted person ' s relatives , including the birth parents , except a birth parent who is a petitioner or who is married to a petitioner , so that the adopted person thereafter is a stranger to his or her former relatives for all purposes ….” § 63.172 ( 1 )( b ), Fla . Stat . The statute extends the " stranger " designation to " the interpretation or construction of documents , statutes , and instruments , whether executed before or after entry of the adoption judgment , that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship ." Id . The only exception to these general rules is that " rights of inheritance shall be as provided in the Florida Probate Code ." Id . The Florida Probate Code , in turn , circumscribes the legal effect of adoption on intestate succession . See § 732.108 , Fla . Stat ( 2021 ) Inheritance under a will differs substantially from inheritance at law . In testate estates , the Code provides : " The intention of the testator as expressed in the will controls the legal effect of the testator ' s dispositions ." § 732.6005 ( 1 ), Fla . Stat . ( 2021 ). This is consistent with the common law principle that "[ t ] he intention which controls in the construction of a will is that which is manifest , either expressly or by necessary implication , from the language of the will , . . . or , as is sometimes said , the testator ' s intention must be ascertained from the four corners of the will ." [ Emphasis added ]
The court held that although the adoption and name change terminated the parentchild relationship and the biological rights flowing from that relationship , these events , however , did not dilute the expressed intent of the decedent . The plain language of the will compelled the conclusion that the decedent intended to devise his assets to his son , whom he always knew as D . F . T . Accordingly , the will was unambiguous , and the trial court correctly determined that D . A . K . remains a beneficiary .
Practice Pointer : As a general rule , an adoption , as opposed to a divorce [§ 732.703 ( 2 )], does not automatically make void a designation made by or on behalf of the decedent natural parent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the adopted child . However , the same may not be true with regard to inheritance by “ intestate succession ”. See § 732.108 ( 1 ), F . S . which reads in relevant part : “ For the purpose of intestate succession by or from an adopted person , the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent ’ s family , and is not a descendant of his or her natural parents , nor is he or she one of the kindred of any member of the natural parent ’ s family or any prior adoptive parent ’ s family .”
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PBCBA BAR BULLETIN 19