LINDA GRANT BELL, APPELLANT,
v.
CHARLES E. SETZER, APPELLEE
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Linda Grant Bell appealed the dismissal of her paternity action against Charles E. Setzer after his death during the litigation. The court held that under Florida law, the death of a putative father abates a paternity action filed under the Florida Bastardy Act, even though statutory law contemplates paternity adjudication after a father's death. The court affirmed the dismissal but urged legislative action to resolve the conflict.
Under present Florida law, the death of a putative father during the pendency of a paternity suit abates the cause of action. Although section 732.108(2)(b) allows paternity to be established by adjudication after the father's death, Chapter 742 (the Bastardy Act) contains no procedural provisions for maintaining a paternity suit against a deceased defendant's estate.
[1] Under Florida law, the death of a putative father during the pendency of a paternity suit abates the cause of action.
[2] Florida Statutes section 732.108(2)(b) allows for the establishment of paternity of a child born out of wedlock against a deceased father's estate, but Chapter 742, Flori…
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Join FLexlaw to unlock all legal intelligence“a person born out of wedlock is a lineal descendant of his father if the paternity of the father is established by an adjudication before or after the father's death”
Establishes that section 732.108(2)(b) contemplates paternity adjudication after the father's death, suggesting legislative intent to allow suits against estates.
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Join FLexlaw to unlock all legal intelligenceLinda Grant Bell filed a paternity action against Charles E. Setzer under Chapter 742 (the Florida Bastardy Act). During the pendency of the suit, Set…
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HOBSON, Acting Chief Judge.
Appellant Linda Grant Bell appeals a final order granting appellee’s motion to dismiss her paternity action against him. The issue presented is whether appellee’s death during the pendency of the suit abated appellant’s cause of action. We hold that, under present Florida Law, the death of the putative father during the pendency of a paternity suit does abate the cause of action.
Section 732.108(2)(b), Florida Statutes (1977), states that a person born out of wedlock is a lineal descendant of his father if the paternity of the father is established by an adjudication before or after the fa ther’s death. Clearly, the legislature intended to allow a plaintiff to maintain suit against the putative father’s estate. Encouraged by this provision, plaintiff turns to the Florida Bastardy Act whose procedures are “in lieu of any other proceedings provided by law for the determination of paternity and support of children born out of wedlock.” Section 742.10, Florida Statutes (1977). Thus restricted to the terms of Chapter 742, plaintiff searches in vain for the procedural guidelines hinted at in Chapter 732. There are no procedural methods set out in Chapter 742 for the maintenance of a paternity suit against other than a living defendant. Further, in the case of Carpenter v. Sylvester, 267 So. 2d 370 (Fla.3d DCA 1972), the court held that a paternity suit could not be brought initially against the estate of a deceased defendant, and discussed in dicta, cases from other jurisdictions which uniformly held that the death of a putative father during the pendency of an action under a bastardy statute abates the action, unless the statute contains provision for its survival and prosecution against his estate.
In the instant case, Linda Bell filed her complaint pursuant to Chapter 742. But for the death of the putative father, her cause of action would have proceeded to a final resolution. Unfortunately, Mr. Set-zer’s untimely demise left her with no recourse against his estate.
We must affirm the dismissal of appellant’s action, but strongly urge the Florida Legislature to resolve the conflict presented by the circumstances of this case.
AFFIRMED.
SCHEB and RYDER, JJ., concur.
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