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DNA Test Might Be Useful To Establish Decedent’s Paternity

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Despite being cloaked in arcane terms and arguments, the legal system usually makes sense in the real world in which it operates. Sometimes, however, it may take the legal system a few years — or a few centuries — to catch up with that real world. One illustration: the difficulties that can arise in trying to answer the deceptively simple question of paternity, especially after the death of the putative father.

Five (or so) centuries of common law developed before DNA testing for paternity became possible. During that long period courts frequently focused on the importance of protecting the family — a child born to a married woman was presumed (and almost conclusively so) to be the child of the woman’s husband.

Another important development in that long history centered on the privacy rights of all the interested parties. It became extremely difficult to force any contesting person to submit to medical testing to determine paternity. Of course, there were no particularly precise tests available until quite recently.

Today, of course, genetic testing is much more precise and useful in determining parental relationships. Does that mean that the legal system has embraced DNA tests as a means of settling disputes about paternity? Not yet.

Consider Adrian Doe, Jr.’s trusts. Mr. Doe set up a series of trusts which, upon his death, divided into equal shares for his children. At the time of his death he had two children born while he was married to their mother — Adrian III and Evelyn. He also left behind two possible children from Costa Rica, whose respective mothers both asserted that he was the father. What was the trustee to do about Maria and Madelin?

Maria’s birth certificate named Mr. Doe as her father, but Madelin’s was silent about paternity. Should the trustee assume that the records were correct, and create a trust share for one of his possible daughters but not the other?

The trustee asked the Florida probate court what it should do, and the court appointed an attorney to represent the interests of the two minor girls. One filed a request that Evelyn and Adrian III be ordered to submit to cheek swabs in order to determine whether they shared DNA with the girls. The probate court agreed with the request.

The Florida Court of Appeals, citing some of the history of paternity and privacy laws, disagreed and quashed the DNA testing order — for the moment. It did, however, note that with slightly better-developed facts Madelin’s lawyer might be able to procure a new testing order. The appellate court even went so far as to suggest some of the evidence that might demonstrate the need for the testing.

If Madelin’s mother were to explicitly state that Mr. Doe was the father, evidence before the court showed that testing the two acknowledged children would be likely to establish Madelin’s and Maria’s paternity (or prove that they were not Mr. Doe’s children), and there were an explanation as to why Mr. Doe’s DNA could not be obtained (there was some indication that he might have been cremated), then the court might approve the testing. It also would want, however, to give Evelyn and Adrian III a chance to explain any particular privacy concerns they might want the probate court to consider. Doe v. Suntrust Bank, January 29, 2010.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.