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Dan
Dan, Retired JD
Category: Legal
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Experience:  Retired attorney, general practice, with an additional background in financial planning,
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what is Louisiana Law statue of limitation for filing claim ...

Resolved Question:

what is Louisiana Law statue of limitation for filing claim to an estate from a paternal father whom died years before finding out he was my father? Am I entitled to any of the shares?
Submitted: 6 years ago.
Category: Legal
Expert:  Dan replied 6 years ago.
Customer

Just to be sure that I am understanding correctly, your father died before you knew he was your father? Do you have any idea if he knew you were his son, or if whomever was the executor of his estate knew? How long ago did he pass away, and approximately when was his estate administered? Do you know if there was a will? At the time that he passed away, how old were you? Final question: how do you know he was your father? Was he named in a paternity action? If not, did he admit you were his child in a writing of some kind?

Get me a few more details, including the time frame things happened in, when you can.

Thank you,

Dan

Customer: replied 6 years ago.
Reply to Dan's Post: MY MOTHER DIED WHEN I WAS 6WKS OLD I WAS CARED FOR BY MY MOTHER'S BROTHER. I HAD NO IDEA WHO HE WAS AND IT WAS NOT UNTIL RECENTLY I FOUND OUT. AT MY AGE I NEEDED TO KNOW AND MY BIRTH CERTIFICATE WAS A TOTAL LIE MY UNCLE OR HIS WIFE CHANGED THE INFORMATION MY NAME WAS EVEN CHANGED SOME HOW. HE DID KNOW I WAS HIS DAUGHTER I HAVE FEW OF HIS FAMILY MEMBERS TELL ME THAT HE USED TO COME AND PICK UP AT MY UNCLE AND TAKE ME PLACES BUT I DON'T REMEMBER BECAUSE HE DIED WHEN I WAS ABOUT 6 OR 7 ACCORDING TO HIS HEAD STONE.I WOULD IMAGINE THAT HIS WIFE KNEW ALSO BUT SHE IS NO LONGER LIVING HE HAS ONE OTHER DAUGHTER LIVING BUT SHE HAS NEVER SAID A WORD TO ME. I HAVE OLDER SIBLINGS THAT SAY HE IS MY FATHER, SOME OF HIS FAMILY MEMBERS, SOME OF HIS EMPLOYEES, MY AUNTS AND UNCLES. I DID GET A COPY OF SOME RECORDS FROM THE CITY HALL IN THE TOWN WHERE HE LIVED BUT THE PAPERS SAY NOTHING ABOUT ME. I AM JUST FINDING ALL THIS OUT IN THE LAST 3-4 MONTHS I AM CURRENTLY 32 YEARS OLD. AND I DON'T BELIEVE THAT IT WAS WRITTEN ANYWHERE THAT HE WAS MY FATHER. I'M SURE THIS LIKE LOOKING FOR A NEEDLE I A HAY STACK BUT I NEED TO KNOW THE TRUTH AND IF ANYTHING CAN BE DONE AFTER ALL THE TIME THAT HAS PASSED. ONE MORE THING, BEFORE I WAS BORN HE BUILT MY MOTHER AND SIBLINGS A HOUSE WHERE WE STAYED UNTIL MY MOTHER DIED. PLEASE HELP ME IN ANYWAY YOU CAN.
Expert:  Dan replied 6 years ago.
Customer

It has taken me a while to work through the issues here, and I'm afraid the answer is not what you were hoping for. I also apologize for the delay. I was out over the weekend.

I am presuming from your fact pattern that your mother was not married to your father. Illegitimate children can inherit from their fathers to the same extent as legitimate children, but "only if they are formally acknowledged or timely establish filiation". See Louisiana Civil Code Articles 203 and 209. (Informal acknowledgment may be used as evidence of paternity to prove "filiation".) (Filiation is the parent-child biological relationship.)

Louisiana Civil Code Article 208 reads:
"In order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209".

Article 209(b) provides the requirements for proof of filiation:
"A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article." (Italics mine for emphasis.)

Article 209(C) provides a time limit to proving filiation:
"The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315 [which would be for the purpose of establishing the right to recover survival or wrongful death damages]. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages." (Italics mine for emphasis.)

Often, the comments to state laws give guidance as to how to interpret them. The comments to these sections stated:
"The purpose of . . . reenacting Article 208 and 209, respectively, expressly stated therein are to provide for proof of filiation by children or on their behalf; to provide a procedure and time limitations for proceedings to establish filiation; to provide for the method and standard of proof in such actions; and to provide that the failure to institute timely such a proceeding shall bar the claims of the persons covered by the Act". (Italics added by me for emphasis.)

(Here is a link to a Louisiana Supreme Court decision in which timely proof of filiation was an issue: http://www.lasc.org/opinions/2004/03c1615.opn.pdf )

The information I have reviewed all states that the requirement to share in you r father's estate would have required that you or someone on your behalf within a year of your father's date of death or by the time you turned age 19. From my readings it states that it is the earlier of those two dates that controls, which means that filiation would have had to be proven back when you were age 7 or 8. That seems unfair, since those who could have asserted your filiation for you did not do so, and you lacked the capacity to do so. However, even if you use the later rather than the earlier of those two dates, you right to prove filiation would have expired at age 19, which was a dozen or so years ago. I believe the reason that they use age 19 is that you then would have had one year upon reaching the age of majority to investigate and prove paternity if that was of a concern to you.

Surprisingly, this is an improvement on where the law used to be. The roots of the law in Louisiana herald from its French roots of more than 200 years ago, and under those traditions illegitimate children had no inheritance rights.

Based on this material, it strongly appears that the right to prove filiation and make any claim against the estate has long expired.

To me that brings up a second question: The people who could have taken steps to prove filiation on your behalf at a time when you were too young to do anything about it failed to do so to your harm. Might you have a cause of action (a right to sue) due to the harm they caused you?

In most cases where a civil cause of action exists that does not involve a contract, the statute of limitations runs 1 year after the harm was incurred. Again that period will have long since lapsed. In some cases a "discovery rule" applies, if the person could not reasonably have known about or discovered the harm at that time. In that event, when it does apply, the "discovery rule" permits the statute of limitations to be deferred until the injury is discovered, "or reasonably should have been discovered". I am uncertain whether the discovery rule would apply in this event, but even if it did, based on the provisions of the filiation statutes, I would presume that the period when the injury "reasonably should have been discovered" would have been back when you were 18 going on 19. Notice that the rule is not "when you actually discover". If something is important enough to do something about in a court of law, it is apparently something that should have been important enough for you to bother to investigate on your own back then.

Based on the research, it appears that there is nothing that you can do at this point related to claiming a share of your father's estate, or filing suit against those who could have asserted that claim on your behalf but failed to do so to your home.

I wish I had better news for you.



I hope this has been helpful. Let me know if you have any followup questions. If none, please remember to click on the ACCEPT link so that I may receive credit for working on this topic with you. (I'd greatly appreciate it!)

Thank you,

Dan

--------------

The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state.

PS: If an answer appears to you to have been very helpful, or to have taken above average expertise and/or research, or if the answer shows an above average amount of time and dedication devoted to your issue, a bonus is nice way to say "Thank you". Thanks!

Dan, Retired JD
Category: Legal
Satisfied Customers: 1164
Experience: Retired attorney, general practice, with an additional background in financial planning,
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Dan
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Retired attorney, general practice, with an additional background in financial planning,