Establishing paternity is not a pleasant topic for either party. But sometimes it is necessary. Sometimes even after the father died. The procedure can be expensive and even unethical from the point of view of many, but some mothers or adult children decide to take such a step.
Why is paternity establishment necessary?
While the father is alive, witness testimony and DNA testing are required mainly to prove fidelity and eliminate doubts. When people ask to establish a relationship posthumously, it usually concerns financial issues. The reasons may vary, but 95% of cases are related to receiving an inheritance or some kind of payment. For example, survivor's pensions. Most often, posthumous establishment of paternity is required if the child was illegitimate or the parents lived in a civil marriage.
Death of a father in a family where the relationship is not registered
The first common case: living together without registering a marriage. For the sake of receiving any benefits or due to frequent quarrels and instability of relationships, parents decide to put a dash in the birth certificate instead of the father’s full name. If he later dies, the family is left without the opportunity to receive any payments for the child, despite the fact that he had a father, wanted his birth and took care of him.
The civil marriage is completed, the child is not registered, the father has died
The second case is similar, but with separation before the date of death. Moreover, the end of the relationship can happen either shortly before or several years before. The mother does not consider paperwork important or believes that the process is too complicated.
This usually happens if there is no sense in it: the father does not want to pay child support or help the child in any way. Begging is humiliating, the money is small, DNA testing is expensive. But after death, a child unwanted by the father has the right to receive his part of the inheritance.
Illegitimate children
Descendants born “on the side” can count on their share of the inheritance on an equal basis with the children of the legal wife. The law provides equal rights for any child if the father is recognized as biological. This is regulated by Article 53 of the Family Code.
Filing applications for posthumous paternity establishment in such cases is often carried out by illegitimate children themselves. As adults, they want to receive the property due to them.
Death of a parent before the birth of the child or before his registration in the registry office
The same situation occurs here when people live in a civil marriage. The only difference is that, quite possibly, they wanted to register the child as their father, but did not have time. If a man died before the birth of the child or in the first days of his life, when a birth certificate has not yet been received, in addition to financial issues, moral and social ones also arise. Not everyone likes having a dash on their birth certificate. Therefore, there is a need for a formal procedure.
Methods for establishing paternity
The court considers any evidence as confirmation. And contrary to popular belief, establishing paternity both after the death of the father and during his lifetime is possible not only with the help of an examination. Of course, the question remains open whether the court will side with the mother and child.
However, any facts are accepted. It can be:
- witness's testimonies;
- audio and video recordings, for example, a recording of a conversation with the father, in which he clearly confirms that the child is his;
- explanations of the parties or other persons.
The court accepts and considers any evidence. This is regulated by Art. 48 IC, as well as clause 19 of Resolution No. 16 on establishing paternity and maternity. An examination is appointed in cases where it is impossible to reliably prove the origin of a child by other means. Even when the plaintiff was able to provide a large amount of data, the court has the right to recognize it as unreliable if it is so. Then an examination will be scheduled.
It should be borne in mind that such evidence is not the main thing for the court. The conclusion will be made based on the cumulative presentation of all facts. This is stated in paragraph 20 of the same Resolution No. 16.
How can an examination be carried out?
The plaintiff should not be deceived into thinking that there are some special little-known ways of conducting DNA analysis of a deceased person. As for laboratory research, everything is carried out exactly the same as for the living. In rare cases, it is possible to have time to conduct such an examination before the funeral. In most situations, for various reasons, including the difficulty of collecting papers and obtaining permits, this cannot be done in a short time. In the future, such actions require exhumation, which for many is unacceptable for ethical reasons. In addition, it is quite expensive and such a procedure will require additional permission.
Expertise is not always necessary and is not a decisive factor for the court. Therefore, you should not abandon the idea of posthumous establishment of paternity just because it seems somehow unacceptable. Perhaps we can do without it.
Establishing paternity after divorce
The above resolution contains paragraph 14, which considers the procedure in cases where the parents divorced before the birth of the child or were married at the time of the husband’s death. This applies to situations where they no longer lived together.
The court automatically recognizes the origin of a child from a spouse if:
- at the time of death, the mother and father were legally married, even if they no longer lived together;
- at the time of the child's birth, the parents had been divorced for 300 days or less; This also includes the recognition of marriage as invalid.
Only the defendant can refute this. If he died, then this will be the party acting in his place. For example, these could be relatives. But in such a situation, the law will initially be on the mother’s side, so if someone does not agree with the decision, then he will have to look for evidence of correctness. Including the examination, if necessary, will fall on their shoulders.
If we take into account judicial practice and articles of legislation that regulate the establishment of paternity, we can conclude that the most important thing is the collection of evidence: any reliable evidence, of all kinds. It is worth collecting them in as many quantities as possible. This is what becomes decisive when the court considers a case, and not the examination, which, in fact, may not exist.
Do not forget that evidence obtained illegally will not be considered by judges. This applies, for example, to audio recordings obtained fraudulently.
Who can claim paternity?
To formally prove paternity after the death of the father, you need to file a lawsuit providing all available grounds. The possibility for judges to consider such situations is stipulated in Article 50 of the Family Code.
Art. 49 of the IC indicates the circle of persons who can apply to establish paternity. In this list:
- mother of the child;
- his guardian or trustee;
- a person who has a dependent child;
- the offspring himself, if he is 18 or more years old.
If the child is already an adult and has legal capacity, then paternity cannot be established without his consent. This does not depend on the methods chosen. This rule is regulated by clause 4 of Art. 48 SK. The same applies to cases where the child acquired legal capacity in any way before the age of 18. Then no one has the right to submit an application without his consent.
Despite the fact that Article 49 of the Family Code focuses on children from unmarried parents, 99% of cases of establishing the origin of a child relate to such situations. The rest are considered on an individual basis. As a rule, the same list remains.
The basis for determining who can apply to establish paternity remains their relationship to the child. The right is reserved only for those who participate in the maintenance and upbringing. But they can also be refused if there are good reasons.
With the growing popularity of civil marriage, certain troubles are increasingly arising. As children are born in such marriages, it often becomes difficult to establish paternity. Particular difficulties arise when the future father dies. A young mother sometimes has a need to prove the relationship of the baby with the deceased person. For example, a girl wants to file for the loss of a breadwinner or claims the inheritance of her common-law husband.
Methods for establishing paternity
There are three ways to establish kinship when the spouses are not married. They differ in the conditions and sequence of the procedure. Paternity can be established in the following ways:
- voluntary confession;
- by means of a court decision;
- posthumous establishment of paternity through the court.
Voluntary recognition of kinship
Established in the case of unregistered relations between common-law spouses. Together they submit an application to the registry office for recognition of paternity (maternity is recorded automatically). If the baby’s mother either died, or she was deprived of parental rights after a trial, or she was declared incompetent by the conclusion of specialists, then the father can submit an application only with the consent of the relevant authorities. Here it is important to take permission from the guardianship authorities.
Sometimes, after the birth of a baby, due to some circumstances, parents cannot submit an application together. Then it is provided for its submission to the registry office before the birth of the child.
When a child reaches adulthood, the process of establishing paternity is carried out only with the permission of the first one.
Judicial establishment of paternity
Situations often arise when the alleged father does not want to recognize his minor child. Here the mother can only achieve justice in court.
Some amendments were made to the Family Code in March 1996. Therefore, if the child was born after the changes were made, establishing the fact of paternity is regulated by Article 49 of the RF IC. The court accepts and considers all evidence presented that confirms the birth of the baby from the person indicated in the application. All possible evidence is listed in Article 55 of the RF IC.
For older children, the procedure is carried out in different aspects. In this case, the court will be guided by Article 48 of the RF IC when making its decision. Here the plaintiff proves the common management of the household, as well as the cohabitation of common-law spouses at the time of pregnancy with the subsequent birth of a joint child. There are no statutory deadlines for establishing paternity. You can go to court at any time after the birth of the baby.
Establishing paternity after death
Posthumous establishment of paternity is carried out only in court. The fact that a born baby is recognized as a deceased person during his lifetime is not important here. Also, the establishment of paternity begins only after the provision of evidence that certifies the fact of birth from a deceased person. This case only applies to children born before March 1996.
The court also deals with older disputes. If the child was born before October 1, 1968, the court will recognize the paternity of the deceased person if there is evidence that the then minor was fully dependent on the putative father before his death.
Reasons for establishing kinship
There are only two reasons that entail posthumous establishment of paternity.
- When the baby’s parents were not officially married, and at the time of death the alleged father did not recognize his own child.
- If a man acknowledged paternity before his death, but at the time of the birth of the baby the spouses were already or were not yet officially married.
Filing a claim in court
In addition to the mother, some other persons can file the required claim to establish kinship. The following have the right to go to court:
- a guardian officially confirmed in the case when the child has not reached the age of majority;
- if the baby is dependent on someone, then the person supporting the minor will sue;
- Upon reaching the age of 18, the child himself can file a claim in court.
Evidence that the court takes into account when making its decision
Article 55 of the RF IC specifies all admissible evidence that a plaintiff can present to the court when establishing paternity. These include:
- Letters written by the alleged father to both the child's mother and the minor himself.
- Written statements from a deceased person that indirectly prove paternity. These could be entries into clubs or sections carried out by the alleged father.
- Witness's testimonies. The court will hear the opinions of the mother's neighbors and relatives, who will talk about the spouses' relationship. Also here, if possible, government agencies will be involved, which can provide important evidence in this matter.
- Medical evidence. An important aspect in posthumous paternity establishment is the results of DNA analysis. Of course, this procedure is only possible if the deceased person has close relatives, for example, parents, sisters or brothers.
Carrying out a DNA paternity test
How is this done? Post-mortem paternity determination is often carried out only after a test has been performed. Today, such cases are quite popular and more effective. A paternity test is carried out only after a court decision and in a specific clinic that will be indicated. DNA analysis is carried out in strict compliance with all sanitary and legal standards. In connection with the death of the father, specialists use biomaterials from close relatives. Parents or siblings can act as a source for collecting biomaterial for DNA paternity testing. Specialists can also use blood tests of the deceased person, which he took during his lifetime.
A paternity test gives a 99% probability, which will significantly increase the chances of a positive outcome for the plaintiff. After completing this procedure, the results are sent to the court, and a new date is set for the consideration of the case. If the decision is positive, the mother or other representative of the minor child writes an application to the registry office, attaching copies of all necessary documents. These include the child and the court decision. Based on the court opinion, a few days later the mother receives a new certificate of paternity. With this document, a woman can apply for benefits for the loss of a breadwinner, as well as an inheritance.
Conditions for filing an application for recognition of paternity of a deceased person
An application to establish the fact of paternity submitted to the court must be drawn up in accordance with all legal norms. If the mother or guardian of the minor is not aware of the entire procedure, it is best to consult an attorney or lawyer for advice. Because, in addition to the application, you must attach copies of some documents. If filed correctly, the court will soon take your situation into account and begin work. In the application, the mother must indicate all the information about the deceased putative father and the joint minor child.
List of copies of documents required for consideration in court:
- Death certificate of the putative father.
- Birth certificate of a joint minor child.
- Certificate of cohabitation from place of residence (if available).
- Receipt for payment of the required state duty.
- Evidence of paternity of the deceased person (photos, letters, etc.).
Objections to an application to establish the relationship of a deceased person
It sometimes happens that a mother's application for paternity of a deceased common-law spouse is considered more seriously due to certain specific circumstances. They can be counter-objections, often statements of claim. Such a claim could be filed or, even worse, by his official wife.
In the case where the deceased putative father was not officially married to another woman, the fact of relationship is confirmed by evidence in the form of photographs or letters, as well as with the help of witnesses. If the man was officially married, then it is much more difficult to prove justice. Despite all the evidence and testimony presented, the court will require a DNA test. According to experts in the legal field, if a counterclaim arises against a submitted application, the court, when making a decision, is guided only by the results of the analysis.
Summarize. Establishing paternity after the death of a father is a rather troublesome matter, and sometimes requires large financial expenses. Therefore, establishing the relationship of an unregistered couple should be treated more responsibly. Because judicial practice notes the moments when establishment through the court failed. It is not easy for a young mother to survive this situation alone.
Today, young couples often do not want to formalize their relationship legally, believing that the “stamp in the passport” is just a formality and a relic of the past. At the same time, they do not take into account that a child born in a legal union is automatically legally protected. Whereas in a family that has not formalized the relationship, in the event of unforeseen circumstances, the mother will have to go through such a difficult procedure as establishing paternity after the death of the father. However, many women do not know how to prove that the deceased is the biological parent of the child.
Why is such a procedure necessary?
The unexpected death of a man who did not have time or did not want to officially recognize his child puts his common-law wife in a difficult position. She has a question: how to establish paternity after death? After all, without this it will be impossible:
- apply for and receive a survivor's pension;
- in case of murder, seek compensation for damages;
- include the child in the list of heirs;
- enter information about the father in the birth registration book at the registry office.
It turns out that neither the child nor the common-law spouse of the deceased has any legal protection. A notary will not be able to open proceedings on the right to inheritance in the absence of documents confirming paternity. Only a court that conducts the process in a special manner can make a determination on kinship. Experience in the field of law shows that most often it is possible to prove paternity. But life situations are different, in accordance with which the mother or the child’s representative must act.
Who has the right to go to court?
The procedure for posthumous paternity establishment consists of several stages. The first is to submit an application to identify the deceased parent of the child. The following persons have the right to do this:
- the common-law spouse of the deceased man, who is the mother of his child;
- a guardian or trustee appointed by the court in the event of the death of the mother, deprivation of her parental rights or restrictions on them;
- a person who actually supports the offspring financially;
- the child himself who has reached his 18th birthday.
How to fill out an application?
When going to court, you must submit a claim document in the established form, a sample of which can be downloaded from this website. It is filled out as follows:
- In the upper right corner the name of the court, last name, first name, patronymic of the plaintiff, his address are indicated, below is information about the interested party - the relatives of the deceased. If it is necessary to assign a benefit for the loss of a breadwinner, then the Pension Fund is indicated.
- The narrative part includes a detailed and accurate retelling of events. It is necessary to reliably tell about the duration of the civil marriage, the man’s attitude towards pregnancy, if he provided help, then what kind, whether he looked after the baby, whether he gave money.
- Text style is official. There should be no grammatical errors in the description. Throughout the story, it is necessary to refer to articles of law.
- In conclusion, it is necessary to formulate the essence of the request to the court. This could be the phrase “establishing the fact of recognition of paternity” or a desire to change the child’s surname.
- At the end of the application there is a signature, its transcript and the date of filing the document with the court.
- Then the evidence attached to the claim and information on payment of the state duty must be listed.
Which court should I go to?
To prove the deceased’s involvement in the birth of a child, an application to recognize him as the father is submitted to the district court at the place of registration of the plaintiff. If during his lifetime a man recognized the child as his own, but did not have time to formalize this fact, during the trial, evidence of living together will be considered, witnesses will be interviewed, and dates will be checked for possible discrepancies.
If the court considers all the facts presented to be plausible and convincing, then according to the law (Article 50 of the Family Code of the Russian Federation) the decision to establish paternity is made according to a simplified scheme.
If the issue is controversial, for example, about the right to inheritance, the biological relationship of the child and the deceased will have to be proven on a general basis (Article 246 of the Civil Procedure Code of the Russian Federation).
In this case, the confirmations will be the same: letters, things, checks. The controversial process can be lengthy, especially if, at the request of the relatives of the deceased, who are challenging paternity, a DNA examination will be ordered.
As judicial practice shows, if the relatives of the deceased support the mother, then the decision is most often positive. In the opposite situation, when the heirs wage an aggressive and hostile struggle to prevent the posthumous establishment of paternity from happening, the consideration of the case takes a long time and is difficult.
But under any circumstances, the court considers all the evidence presented and decides to recognize the deceased man as the father, taking into account its convincingness.
When the fact of paternity is legalized, the child becomes a legally protected heir to the property of his parent, the holder of the right to receive a survivor's pension. After a court decision recognizing a deceased man as the father of a child has entered into legal force, the mother or representative of the minor can draw up documents at the registry office.
Important: the issue of recognizing paternity has no statute of limitations.
What evidence should there be?
As mentioned above, there can be two situations: the man recognized the child, but did not document it, and did not consider himself the child’s parent. The judicial review will be different in each case.
The peculiarity of the first situation is that there is no conflict between the parties, so the proof procedure will be simpler and faster. In addition to the claim itself, the initiator of the proceedings must attach:
- a copy of the birth certificate;
- duplicate statements of all interested parties;
- documentary evidence that the man acknowledged his paternity;
- check for payment of state duty.
Additional evidence in court may include stories from witnesses and various documents:
- kindergarten teachers confirm that the father brought and picked up the child more than once;
- the mother or legal representatives have payment documents indicating that money has been received from the man for the child;
- family video chronicles;
- letters, postcards, telegrams, mutual SMS messages;
- genetic examination, the results of which confirm the relationship of the child and the father, and it will be almost impossible to challenge this.
In fact, the amount of evidence in a peaceful situation does not matter. The main thing is that they must be convincing, then restoring the rights of the child will be a simple and short-lived procedure.
The situation when posthumous establishment of paternity is required, but during life the man did not want and did not recognize the baby, is more complicated. Can it be proven that the deceased was indeed the biological parent of this child? The procedure may be complicated by disputes with other heirs.
In the application, in addition to a description of the circumstances and a request to establish the fact of paternity, if necessary, material goals are also indicated: awarding the child the right to inheritance, assigning a pension, and others. All necessary copies of documents are attached to the application, as well as, if available, an expert opinion.
The difficulty of proof in such a situation is to conduct a molecular genetic study. Only this analysis can be reliable proof of paternity posthumously if there is a conflict between the parties. If such an examination has not been carried out previously, it is ordered by the court and paid for by the plaintiff. After the death of a man, it is more difficult to conduct a DNA analysis: the body will have to be exhumed. Therefore, the trial could last about a year.
However, it is possible to conduct a study to prove paternity after the death of the father, without opening the grave. To do this, biomaterial from the closest relatives is taken with their consent or a blood test of the deceased, which he took during his lifetime.
DNA analysis is the study that most reliably confirms paternity.
Conclusion
Many women establish the rights of their children to bear the name of their real father and become his legal heirs in court. It’s good if there are no obstacles in this matter in the form of irreconcilable relatives, and there is irrefutable evidence. Whatever the situation, a guarantee of a positive outcome in the case of proving paternity posthumously can only be provided by a genetic examination, which today is carried out even after the death of the father.
Attention! Due to recent changes in legislation, the information in this article may be out of date. However, each situation is individual.
To resolve your issue, fill out the following form or call the numbers listed on the website, and our lawyers will advise you for free!
In addition, fathers do not always want or have time to declare their relationship with the newborn. This may be due to many aspects, but most often:
- The baby’s mother did not tell the biological father in a timely manner about the presence of a child together.
- The man did not want to recognize the newborn as his own, and the judicial procedure for establishing paternity was not carried out.
- The hypothetical dad died before the newborn was born.
- The father disputed his paternity in court, but no genetic testing was performed.
You need to understand that provided that a woman and a man were officially married, the born baby automatically acquires a father, and there is no need to prove his presence. The same applies to births after divorce, if no more than 300 days have passed since the divorce procedure.
What to do if paternity is not proven? Is it possible to establish paternity posthumously? How to prove that a child has family ties and can claim not only the surname of the deceased, but also what remains after him?
If the child was not recognized by him, then the minor cannot claim:
- Payment of pension benefits in connection with the untimely loss of a breadwinner. This benefit is paid by the state until you reach the age of majority.
- Compensation payments that will necessarily be paid if the deceased citizen died under tragic or violent circumstances.
- An inheritance left behind by a deceased person. Natural children are first-line applicants and their interests are taken into account even if the deceased made a will in advance in which he did not mention the children.
It is these points that push mothers to undergo the difficult procedure of establishing paternity after death.
It is not easy for the reason that it can only be carried out in court. In addition, the other party is no longer alive, so it is necessary to resort to other measures in order to achieve recognition of biological kinship.
In addition, as a rule, the main reason for recognizing paternity is the reluctance to establish family relations with the relatives of the deceased, but the need to take back the share of material benefits due to oneself. This question, of course, complicates the solution of the problem, because often the relatives of the deceased party do not want to provide assistance and prevent the establishment of the truth.
Paternity Establishment Procedure
To prove paternity of a child born out of wedlock, the applicant will have to. Are you wondering how to establish paternity after the death of your father in court? It depends on how the situation developed before the death and what the father’s intentions were during his lifetime.
If a man wanted a child to be born and wanted to register it in his name, or he wanted to adopt him later, but simply did not have time to do this, then the plaintiff applies to the court with a request to conduct special proceedings. In such a consideration of the case, no additional evidence is needed; in such cases there is no defendant. It simply legitimizes the desire to confirm the fact of paternity, which the deceased did not manage to complete during his lifetime.
In the case where the second parent did not express voluntary wishes to adopt the child or completely refused to do so, the applicant will have to file a statement of claim, and the defendant may be other heirs of the deceased. Such a procedure will entail a lot of problems and may encounter serious obstacles on the part of the defendant. Typically, such considerations involve taking genetic material and comparing the presence of kinship using DNA testing.
Preparation of documents
Depends on the procedural proceedings. When it comes to a special type of consideration, the applicant will need, in addition to an identity card and the baby’s birth certificate, to provide evidence that the man actually recognized the relationship and wanted to legitimize his rights as a father. For this purpose, testimony is provided, for example, from medical personnel in the maternity hospital, neighbors, that until the moment of their death the parents lived together and had a good relationship. Testimony from relatives that everyone knew about the baby and considered him a biological continuation of the deceased. You can show correspondence, audio or video recordings where relationships were recorded.
If the father is unwilling to recognize the baby during his lifetime or even lacks knowledge that he exists, a mandatory DNA examination will have to be carried out.
To prove kinship, it is possible to take the genetic material of the deceased, but this can be done either immediately after death or during exhumation, which is undoubtedly expensive and difficult. The collection of genetic material from the deceased does not require his permission, so it is carried out without hindrance. You can also compare the DNA of close relatives of the deceased and the unrecognized baby. But there are certain problems here - this can only be done with the voluntary desire of the other party.
Application for establishing the fact of recognition of paternity
To submit any of them, you must first compose it correctly. The text of the claim must indicate:
- Information about the court and judge involved in the consideration of the claim.
- Information about the applicant himself and the relationship with the child whose interests will be defended.
- Complete information about the baby, when and where he was born.
- Indication of information about the deceased alleged relative.
- Description of the situation prior to filing the claim, namely why paternity was not established earlier.
- Presentation of available evidence. Although it should be said that not a single unfounded fact will allow the court to establish a relationship if the deceased was against such a procedure or did not know about the relative.
- Demand to establish the truth.
- List of documents attached to the application.
Only the court will decide whether the relationship can be recognized.
Which court should I go to?
When filing a claim, an important question is where exactly the document should be submitted. In both cases, you must contact the authority at the place of residence and registration of the deceased.
Only district or city judicial departments can set themselves the task of recognizing the deceased as a biological relative of the child or denying this fact.
Moreover, both special and claim proceedings will be considered precisely in these legal instances and at the place of registration of the deceased.
There are cases when petitions can be accepted upon registration of the applicant. In judicial practice there are two reasons for this:
- Having an infant or a disabled minor. This situation does not allow the mother to leave home for a long time.
- The plaintiff's illness, which also prevents long-distance travel.
Another reason may be the applicant’s lack of information about the place of residence of the deceased.
Consideration of the application in court
Filing a claim is an important step for a claimant. If upon filing the claim was accepted and registered, then the process has begun. Although the claim may be returned for revision or elimination of inconsistencies.
The trial in search of the truth will cover many aspects. Several defendants may be summoned to court at once if the main issue is the establishment of inheritance rights. Consideration of this type of petition is not complete without serious preparation and qualified legal assistance. But if, as a result, the genetic material of the deceased, which was taken officially at the request of the court, is not presented, or the close relatives of the deceased do not voluntarily agree to conduct a comparative examination, then the applicant will not be able to prove his claims.
Indeed, quite a few such requests remain unfulfilled.
State registration of paternity establishment
When the justice department makes a decision to satisfy the claims stated in the petition, the plaintiff will have to register the rights obtained. Regardless of how and when confirmation of a biological relationship was received, it can only be registered in the registry office at the place of residence of the father or mother.
With the following documents:
- Personal identification.
- The act of registering the birth of a baby.
- A man's death certificate.
- Court ruling establishing blood relationship.
- State duty paid.
At the same time as receiving documentary evidence, you can declare your desire to change the child’s last name and/or patronymic.
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