Thursday, February 04, 2010

WHEN WATER IS AS THICK AS BLOOD [FLORIDA]

We all know the expression “blood is thicker than water.” Presumably, that is what a trust settlor had in mind when she made a class gift to her grandchildren, and included language that such grandchildren would only include “descendants by blood.”

The settlor’s son married his wife in 1966. Six months after the marriage, the son and his wife had a child. The birth certificate listed the settlor’s grandchild as the son’s child. The son and his wife divorced in 1971, and signed a marital agreement that provided that the settlor’s grandchild was a child of the marriage.

In 1999, DNA testing revealed that the settlor’s grandchild was not in fact the son’s biological child. A dispute subsequently arose after the settlor’s death whether this child is a qualified grandchild and beneficiary of the settlor per the limitation that the grandchild be a “descendant by blood” to the settlor.

Finding water to be as thick as blood in this instance, Florida’s 2nd DCA determined the grandchild to in fact be a blood descendant of the settlor, even though there was no biological link. The court relied in part on prior case law, even though such case law existed prior to the age of DNA paternity testing, and an interpretation that the “blood” limitation was only meant to exclude adopted lineal descendants, and not descendants where paternity had been acknowledged at some point.

CATHERINE E. DOE V. CHESTER P. DOE, ROGER E. DOE, AND XYZ BANK OF FLORIDA, N.A., 2nd DCA, September 4, 2009

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