Azcunce v. Estate of Azcunce,
586 So. 2d 1216 (1991).


Procedure: Appellant challenged the order of the Circuit Court of Dade County (Florida), which denied appellant a statutory share of her father's estate as a pretermitted child.

Facts: Rene Azcunce (T) executed a will that established a trust for the benefit of his spouse and his then-born children; there was no provision for after-born children. T subsequently executed a codicil that republished the terms of the will. T's daughter, Patricia (P), was born after this first codicil but before a second, which, again, republished the will and first codicil and made no mention of after-bom children. T died of a heart attack at age 38. P petitioned for a statutory share as a pretermitted child. The trial court denied the petition. P appeals.

Issue: Whether a child who is born after the execution of her father's will but before the execution of a codicil to the said will is entitled to take a statutory share of her father's estate under Florida's pretermitted child statute-when the will and codicils fail to provide for such child and all the other statutory requirements for pretermitted-child status are otherwise satisfied.

Holding: No. Order affirmed.
The Circuit Court, Dade County, denied child statutory share. Child appealed. The District Court of Appeal, held that where second codicil expressly republished original will and first codicil, child who was living at time second codicil was executed was not a “pretermitted child” and was not entitled to statutory share of testator's estate.

Analysis: Appellant was born after the execution of her father's will, but before the execution of a codicil to the will. Both the will and codicil failed to provide for her. Appellant alleged that she was entitled to a statutory share of her father's estate under Florida's pretermitted child statute. The trial court denied appellant's claim, and she appealed. On appeal, the court held that where the codicil expressly republished the original will, appellant, who was living at the time the codicil was executed, was not a pretermitted child within the meaning of the statute. Accordingly, the court affirmed the final order which denied appellant a statutory share of her father's estate