PR 01015.011 Florida

A. PR 81-001 L~, Emory W. - Presumption Of Legitimacy Of Child Born In Wedlock

DATE: January 8, 1981


In Florida, the Lord Mansfield Rule is no longer applied by the courts in property rights cases or otherwise to exclude evidence from wives (mothers) or husbands rendering illegitimate issue of the wife born in wedlock. Eldrid9e v. Eldridge, 16 So.2d 163 (1944); Gammon v. Cobb, 335 So.2d 261 (1976); In Re Estate of Jerrido, 339 So.2d 237 (1976); Williams v. Estate of J. D. Long, 338 So.2d 563 (1976); Hinson v. Hinson, 356 So.2d 372 (1978).

Memo L~, Emory W. to Programs:SSA:Atlanta 1/8/81 (W~, D. R., OGC:Atlanta)


In your memorandum of August 4, 1980, you requested further analysis of the Lord Mansfield Rule in Florida. In particular you asked whether Florida has abolished the Lord Mansfield Rule as it applies to property rights and, further, whether Eldridge v. Eldridge, 16 So.2d 163 (1944) cited in our opinion of July 11, 1980, related to property rights.

The Lord Mansfield Rule is a rule of evidence in some states which prohibits a husband or wife from offering evidence which renders illegitimate issue of the wife born after marriage. 49 A.L.R. 3d 212 (1973). In the Eldridge case the husband contended he was not the father of the child born to his wife during wedlock. The husband first met his wife on June 22, 1941. A courtship followed with frequent acts of sexual intercourse. They were married July 16, 1941. The child was born February 9, 1942, a period of 226 days from their first meeting. The Eldridge case did not involve property issues but only the issue of whether or not a husband could contest the parentage of a child born to his wife during their marriage. The court in the Eldridge case held that the husband could contest the legitimacy of a child under these circumstances. However, the husband has the burden of producing evidence sufficient to overcome the strong presumption that a child born in wedlock is legitimate.

In reaching its decision the Eldridge court relied upon Gossett v. Ullendorff, 154 So.177 (1934). In Gossett, the court was attempting to determine the heirs of the deceased and was confronted with the issue of whether or not the wife of the deceased could offer evidence to establish the illegitimacy of her children born during her marriage. The Gossett court stated that the right to repudiate legitimacy under such circumstances belongs only to the husband. Consequently, it is clear that the Lord Mansfield Rule was not applied by Florida courts to exclude evidence offered by husbands to contest parentage in either property or paternity cases at least since 1934 and 1944, respectively.

As the Gossett case illustrates, there was an evidentiary bar in Florida to a married woman offering evidence to render illegitimate children born during wedlock. However, the Florida legislature statutorily authorized unmarried women to bring civil actions for support of their illegitimate children. Fla. Stat. Section 742.011. Married women, therefore, continued to be barred from offering evidence rendering their children born in wedlock illegitimate until the decision in Gammon v. Cobb, 335 So.2d 261 (1976). The Gammon case held Fla. Stat. Section 742.011 unconstitutional and extended to married women the right to bring paternity actions in the same manner as unmarried women as discussed in our previous opinion.

Subsequent to the Gammon case (and relying upon the Gammon rationale) the Florida courts have radically changed the evidentiary rule which barred married mothers from giving evidence rendering children born in wedlock illegitimate. In the case of In Re Estate of Jerrido, 339 So.2d 237 (1976), a widow by a common law marriage was allowed to testify that the three youngest of her five minor children born during wedlock were illegitimate. In this action the widow and the five minor children were adversaries competing for interests in the deceased's estate. In Williams v. Estate of J. D. Long, 338 So.2d 563 (1976), the court was also confronted with inheritance rights issues and held that the Gammon rationale was equally applicable to the issue of inheritance rights and that Gammon removed the previous legal impediment which prevented a mother of children born in wedlock from testifying that her children are illegitimate. A similar result was reached in a wrongful death action brought by a minor for the wrongful death of his putative father. Hinson v. Hinson, 356 So.2d 372 (1978).

Therefore, it is the opinion of this office that the exclusionary Lord Mansfield Rule is no longer applied in Florida in property rights cases or otherwise. The legacy of this rule remains, however, in the form of a strong but rebuttable presumption that children born in wedlock are legitimate.

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PR 01015.011 - Florida - 09/27/2007
Batch run: 01/27/2009