What is the procedure for posthumous paternity determination? What is recognition of paternity after the death of the father? Establishment of paternity posthumously.

The sudden death of a father who did not have time or did not want to recognize his son or daughter during his lifetime should not infringe on the legal rights of a minor. When a baby was born out of wedlock, he can claim both the inheritance of his biological father and the government payments that he is entitled to.

To resolve this issue, the child’s official representatives should go to court and defend the right to receive everything that is due to him by law. This can be done with the help of lawyers or by filing a claim on your own to establish the fact of recognition of paternity.

The need to recognize paternity after death

Sometimes after the death of a person it becomes necessary to establish the fact of his relationship, namely paternity, in relation to the alleged children. When no legal documents confirm the relationship, the father has not established his involvement in the child during his lifetime, there is a special procedure that will help restore the truth.

The procedure for establishing paternity after a person has died is carried out for the following purposes:

• assigning a survivor's pension to minor children;
• inheritance claims;
• receiving funds for compensation in case of violent death;
• the desire to restore family relations and fill in “fairly” all the columns in the birth certificate.

Only the court has the right to restore family ties. For this case, the law provides a special procedure. Cases on recognition of family ties have no statute of limitations and can be initiated at any time.

In some cases (for example, when the father is seriously ill), the problem of establishing kinship can be solved in advance. Future parents, although not officially married, have the right to submit an application to the registry office even before the birth of the child. It indicates his intended last name, first name and patronymic and registers voluntary paternity. An entry in civil status acts is made after the birth of the baby and the provision of the necessary documents.

Special proceedings

Posthumous establishment of paternity in this case is used when:

• the marriage between the child’s parents was not officially registered;
• paternity was not established during life;
• the baby was born after the father died, and he knew about the presence of pregnancy;
• the deceased agreed to voluntary paternity, but did not have time to formalize it.

When the biological father participated in the upbringing of the child during his lifetime, recognized him as his own, helped financially, or even lived with the mother, and no one disputes the possibility of restoring family relationships, the procedure will follow a simplified procedure (we recommend reading:). Such cases are considered by the court quite quickly, without conducting a genetic examination. As a rule, the involvement of a lawyer is also not required.

Collection of evidence

You have to convince the court that this deceased person is the father of the child. To do this, you need to support your words and the testimony of witnesses with material evidence.

If you have material evidence of recognition of your son or daughter as deceased, attach them to the file, this could be:

• certificate of cohabitation of common-law spouses;
• joint photographs and video materials;
• statements from the accounts of the deceased citizen, where it is clear that he provided financial assistance to the mother or child;
• correspondence via SMS or the Internet, social networks;
• letters, telegrams, postal orders;
• receipts for parcels received;
• statements, petitions for the placement of a child in a kindergarten, school, section, signed by the deceased.

Drawing up a statement of claim to establish the fact of paternity

If the child has reached the age of majority, his consent will be required. For persons deprived of legal capacity, it is necessary to request the consent of the guardianship and trusteeship authorities.

A claim for posthumous establishment of relationship (paternity) is filed with the magistrate’s court at the plaintiff’s place of residence. Mandatory items and additional evidence that must be present in it:

• be sure to indicate appeals to the judicial authorities (receiving a survivor’s pension, compensation for damage, etc.);
• describe your situation in detail, support your words with testimony of witnesses;
• it should not contain claims on the property of the deceased.

Attach to the statement of claim:

Sample application for filing a claim:

Claim proceedings

Claim proceedings are applied in cases where:

• the child was not born in wedlock;
• the deceased did not voluntarily recognize the child;
• the alleged father did not know that the woman was pregnant from him;
• the deceased denied having any connection with this child during his lifetime;
• there are hereditary disputes.

This is a more complex procedure for establishing paternity. In this case, they often resort to DNA research, so it drags on for a long time, and the case is heard several times.

Genetic examination

Genetic examination is prescribed during legal proceedings if:

• there is insufficient evidence of relationship, or it is insignificant;
• the relatives of the deceased do not accept the child and demand DNA testing;
• the person filing the claim insists on researching the genetic material.

The costs of conducting a genetic analysis are paid by the party to the process that requested it. Material for DNA research is taken voluntarily from relatives of the deceased. If the putative father is still in the morgue at the time of the study, then blood will be taken from him for analysis. The examination is carried out in a medical institution appointed by the court.

The results of genetic testing are the decisive argument in court, and it will be impossible to challenge them in the future. The court will take into account the data of a previously conducted study, if any. In special cases, the body is exhumed.

Drawing up a statement of claim to the court to establish paternity

A claim to establish paternity after the death of the biological father is filed:

• mother;
• official representative (guardian, trustee);
• organizations that support a minor as their dependent;
• by the child himself when he reaches adulthood.

The claim is filed in the district or city court at the place of residence of the plaintiff or interested parties, who are relatives of the deceased. An application is drawn up similar to a document in special legal proceedings. The plaintiff's claims to the alleged father's inheritance should also be further described.

Attach evidence that will confirm that the deceased is indeed the biological father of your child, and that during his lifetime he denied the fact of kinship. If possible, attach evidence that there is a property conflict or that a corresponding process has been initiated with the relatives of the deceased.

Consideration of the application in court

During the trial, the judge will listen to all witnesses and evaluate the strength of the evidence. All dates will be checked for consistency and authenticity. If the court finds the plaintiff's arguments convincing, then a positive decision on the claim will be made. The party that loses the lawsuit fully pays for the services of lawyers, genetic testing, and other legal costs and reimburses them to the person who won the case.

When a child is recognized as the son or daughter of the deceased, regardless of what judicial procedure was applied for this, he receives all the legal rights of the son or daughter of the deceased:

• a child can change his patronymic and surname;
• he has the right to communicate with his new relatives;
• receives the right to a survivor's pension;
• the right to compensation when the father died due to the fault of other people;
• the child receives the legal right to be the primary heir to the deceased's property.

Arbitrage practice

In judicial practice, cases of recognition of kinship posthumously are not so rare. Typically, such processes are associated with property disputes or the assignment of child benefits. It is impossible to talk about what decision the court most often makes, since each case is considered individually.

If the relatives of the deceased person confirm the fact of paternity, then the court's decision will be positive. The child will assume his legal rights upon receiving a court decision.

When the alleged relatives are opposed to the child and the plaintiff, lengthy proceedings will be required. Most likely, genetic testing will also be involved. The difficulty of this situation is that the court does not have the right to force defendants to submit genetic material for research. That is why such claims, as a rule, remain unsatisfied.

It happens that the court makes a negative decision, not recognizing paternity of the deceased. The mother of a child who gave birth to a child outside of marriage, and he is not recognized as the second parent, should be careful in collecting documents and other evidence that will help prove the fact of recognition of paternity.

The death of a loved one is always a tragedy. Especially if the woman is pregnant, and also when the deceased person was not a husband and did not have time to recognize his child. Is it possible to register him as a father posthumously if he died before the birth of his child?

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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Concept

Recognition of paternity is the establishment of the legal fact of family ties between the father and the child.

Recognition of a father after his death is the establishment of the origin of a child from a deceased person who was not married to the child’s mother, died before his birth, but recognized himself as the father of this child.

The fact that the deceased recognized himself as the father of a born child can only be established in court.

Legislation

1. Recognition as the father of a deceased person who was not married to the child’s mother occurs in the manner established:

• and also on the basis

2. The rules for drawing up a claim for recognition of this legal fact are specified in
3. The amount of the state fee that must be paid when filing a claim is indicated in
4. Amendments to the child’s birth certificate are made on the basis

Required to receive

There are several reasons for establishing the paternity of a particular person after his death:

• receiving an inheritance;
• receiving a survivor's pension;
• compensation for harm.
  

  Such a case is quite rare. Establishing paternity for this reason is necessary if the father's death was violent.

Consequently, the born child is a victim and his mother has the right to demand compensation for moral and material damage associated with the death of his father.

Inheritance

After recognizing the deceased as the father of the child, the latter has all the rights, including the right to inherit from the deceased father.

An incorrectly drawn up statement of claim is grounds for refusal to accept the claim for consideration.

The statement of claim must include the following information:

• full name of the court;
• full name of the plaintiff, his passport details, as well as his place of residence;
• if the plaintiff has a representative, then the same information about him, as well as details of the power of attorney;
• “body” of the claim - here, in “dry” legal language, the plaintiff describes his demands for recognition as the father of a deceased citizen.

Here you also need to indicate:

• full name of the deceased;
• date of death and death certificate details;
• date of birth of the child and details of the birth certificate;
• other information confirming the recognition of paternity by the deceased citizen;
• a list of documents that are evidence;
• signature of the plaintiff and date of filing the application.

Additional

The following must be attached to the claim:

• copy and original of the child’s birth certificate;
• copy and original of the plaintiff’s passport;
• a copy of the claim for other interested parties involved in the process;
• copy and original of the father's death certificate;
• evidence confirming the joint holding of the plaintiff and the defendant.

They can submit

The following persons can file a claim:

• mother;
• a child, after reaching the age of majority;
• guardian or trustee;
• the person who is actually dependent on the child.

Where

The claim must be filed in the district court at the plaintiff’s place of residence.

State duty

When filing a claim, you must pay a state fee.

Size

1. Since such cases are considered in special proceedings, then according to the amount of the state duty is 300 rubles.
2. If during the recognition of paternity there is a dispute about the right (for example, inheritance), then the state fee is paid in accordance with

Where to pay

The recipient of the payment of the state duty when filing a claim is the tax authority located at the location of the court.

You can obtain a receipt for payment of the fee from the secretary of the court where the application is being filed.

Expertise

Carrying out a genetic examination when recognizing paternity after the death of a citizen is not necessary, since the court establishes the fact of paternity, but the fact that the deceased recognized himself as the father.

Child's rights

After the court makes a decision to recognize the deceased person as the father of the child, the latter will have equal rights with those children who were recognized in the registry office.

Arbitrage practice

Judicial practice in such cases is quite extensive.

Considering all possible evidence in the case, and taking into account the interests of the child, the court makes a decision.

For example, decision in case 2-2036/2015 M-10761/2014 of the Simonovsky District Court of Moscow, where the court satisfied the demands of an adult plaintiff to recognize the fact of paternity of another, already deceased person.

An example of judicial practice is also the decision in case 2-193/2020 M-3398/2014 dated 02/04/2020 of the Bugulma City Court of the Republic of Tatarstan.

FAQ

No matter how transparent the situation is, and no matter how much information the plaintiff receives from lawyers and acquaintances, there are always unanswered questions.

When is proof of paternity required after the death of the father?

1. Confirmation of paternity after the death of the father is most often required so that the child can claim a share of the inheritance as a first-degree heir.
2. Paternity is also established after death so that the child’s mother can receive a survivor’s pension, and the child himself can have a number of government benefits.
3. Less commonly, establishing paternity after death is required to compensate a child who has lost his father in a violent death.
   

   In this case, the child is the injured party and has the right to demand compensation for moral damage caused to him by the death of his father.

Share of an illegitimate child in an inheritance

A child whose birth from a specific person was recognized by the court after the death of the latter has the same rights and obligations as children who were born in marriage.

Therefore, he is the heir of the first line, and has the right to inherit from the deceased and claim a share of the inheritance, like children born in marriage.

Other

It happens that establishing paternity is required after the death of the child’s mother. In this case, the persons listed in the

The plaintiff may be:

• guardian or custodian of the child;
• the person who is actually involved in raising the child and who is dependent on the child;
• the child himself, if he is of age and capable.

Conclusion

Children born out of wedlock are equal in all existing rights to children born from persons in an officially registered marriage (Article 53 of the RF IC). However, in the first case, the child’s father may not be documented (if a single mother registered the birth of a child in the registry office without the participation of the biological father).

Life is complex and varied, and situations often arise when it is necessary to prove kinship with the father after the death of the latter. If a child was born out of wedlock, paternity was not established in a timely manner, and the child’s father died, the family relationship can only be restored by filing a claim in court by authorized persons.

The manner in which the claim is filed will determine whether the father admitted or denied a blood relationship with the child.

• In the first case, the claim is filed within the framework of special simplified proceedings, does not require the participation of interested parties, and establishes a legally significant fact - paternity.
• In the second case, the claim is filed within the framework of general claims proceedings, where there are interested parties, a genetic examination may be ordered, and there is a dispute about the right related to kinship.

A child whose paternity is established by any of the described procedures is endowed with all legal rights in relation to the deceased parent, including the right to priority inheritance of property along with other children and relatives of the deceased.

How to prove paternity after the death of the father

Acknowledgment of paternity after the death of the father- a legal procedure carried out exclusively in court, related to the restoration of family ties between a child and a deceased parent.

Such a need may arise both in relation to a minor child and after he reaches 18 years of age:

• for a minor - to establish the fact of kinship in order to create appropriate legal consequences, which is, for example, the possibility of receiving a survivor's pension;
• for an adult child - proof of the presence of family ties in order to be able to inherit along with other relatives of the deceased.

Recognition of the fact of paternity after the death of a biological parent is possible only in court and is carried out in two ways:

1. Special proceedings- applies if:
   • parents were not married;
   • was not established during the father's lifetime;
   • the child was born after the death of the second parent, who knew about the existence of the pregnancy from him;
   • the father recognized the child, but did not have time to document paternity;
   • the mother has confirmation of the death of the second parent (usually a death certificate).
2. Claim proceedings- used when:
   • the child was born out of wedlock;
   • the “father” did not establish paternity;
   • the child was born after the death of the second parent, who did not know about his existence;
   • the father during his lifetime rejected his relationship with his son/daughter;
   • there is documentation confirming the death of the biological father;

These two types of office work differ significantly from each other and require separate detailed consideration.

Special procedure for legal proceedings

Consideration in court of a case on recognition of the fact of paternity in special order described in Art. 50 of the RF IC and can be carried out when:

• During his lifetime, the father himself recognized his relationship with the child;
• participated in raising the child;
• lived in the same territory (not a mandatory condition);
• financially helped the mother and child, etc.

Statement of claim to establish the fact of paternity after the death of the father

Special proceedings actually provide a simplified option both for filing the claim itself and for considering the case and making a decision.

Initiators claims may be made by:

• mother of the child;
• guardian/trustee;
• other persons (or organizations) who are dependent on the minor (orphanage, orphanage, cadet school, etc.);

Purposes of filing a claim:

• assignment of a survivor's pension;
• the possibility of inheriting the property of the deceased;
• compensation for harm (in case of murder of the biological father, industrial accident, etc.)

It must be remembered that determining the purpose of filing a claim to establish the fact of paternity is the most important condition for accepting this application for proceedings (Article 267 of the Code of Civil Procedure of the Russian Federation).

In order to act in a special proceeding in court, it is important to follow certain rules for drawing up a statement of claim:

• Act as a plaintiff (indicate your full name, registration address, contacts).
• Keep in mind that there is no defendant in this case (since a deceased person cannot be a defendant).
• Address the statement of claim to the city (district) court at the plaintiff’s place of residence.
• Determine the specific purpose of filing this claim (pension, inheritance, compensation for harm).
• Describe the current situation, supporting it:
  • testimony of witnesses;
  • material evidence that the father considered the child as his own during his lifetime:
    • certificate of cohabitation (if any);
    • joint video and photographic materials,
    • checks for the transfer of funds from the deceased’s accounts to the account of the mother/guardian;
    • SMS-Internet correspondence, etc.

• In the requirements of the claim, ask the court to recognize the legal fact of establishing paternity with a specific (deceased) person.

It should be remembered that claims to establish family ties, regardless of the type of their production, do not have a statute of limitations and can be filed at any time.

What needs to be proven to the court during a special consideration of the claim?

A plaintiff demanding that the court recognize significant legal facts (in our case, recognition of the fact of paternity) in order to make a positive decision must prove to the court:

1. Fact of birth of a child (presentation of a birth certificate, upon reaching 14 years of age, together with a passport).
2. The fact of a family relationship with the child, or the fact of dependency (birth certificate + mother’s passport, document establishing guardianship or trusteeship + guardian’s passport, etc.).
3. The fact of the death of the biological father (usually a death certificate, a court decision, and if the plaintiff does not have them, a request to call witnesses from whom the court can subsequently request this document).
4. Lack of registered marriage between parents.
5. The fact that the father recognized a relationship with the child during his lifetime.
6. No dispute about law.

Thus, if in the statement of claim, along with recognition of paternity, a requirement is stated, for example, to obtain specific share of the deceased's property, then the court will return the application for the purpose of “resubmitting” it in the general claim procedure.

• takes little time;
• does not require the involvement of lawyers;
• does not require genetic testing.

Claim proceedings

If a child was born outside of a registered marriage and it was not established, and moreover, the deceased man did not consider himself a father during his lifetime or died before the baby was born (while not knowing about the presence of pregnancy or denying himself involved in it), then there is going to court with claim to establish paternity of a deceased person.

In this case, the court will consider legal dispute, which in such a process is to:

• provide the child with the opportunity to receive a survivor's pension, inheritance, and financial compensation from the state (paid in the event of the death of a parent due to the fault of third parties);
• contrary to circumstances, give the child the surname and patronymic of the deceased father.

This claim can be initiated by:

• mother;
• guardian, trustee;
• organization on which the minor is dependent (institution for orphans, hospital, etc.);
• the “child” himself, who has reached adulthood.

How to write a statement of claim to the court for recognition of paternity

The claim is drawn up in accordance with Art. 131 Code of Civil Procedure of the Russian Federation and provides:

Genetic examination to establish paternity through court

Claim proceedings for establishing paternity in a general claim procedure cannot be done without genetic testing, If:

• there is little evidence of family ties with the deceased father, or they are absent or insignificant for the court;
• the relatives of the deceased categorically deny blood relationship with the child and:
  • they themselves insist on conducting an examination;
  • The plaintiff petitions the court to conduct it.

If a genetic examination is ordered during the court process, its costs are borne by the party that expressed a desire to conduct it.

Since it is impossible to take the necessary samples from the biological father himself after death, the DNA analysis procedure must be carried out with a relative on the side of the deceased. It should be remembered that genetic testing is a medical action. voluntary and it is impossible to conduct it with a person who refused to undergo it.

The disadvantage of ordering a DNA test is that the trial is delayed indefinitely due to:

• selection and involvement of medical experts;
• waiting for the appointment and results of the testing procedure;
• possible postponements of court hearings.

Consequences of a positive court decision

If a parent is posthumously recognized as a father, regardless of the order of this recognition (in special or action proceedings), his child is vested with all legal rights associated with such relationship:

• obtaining the right to the surname and patronymic of the deceased parent;
• the right to communication and care from grandparents and other relatives on the side of the deceased;
• the right to receive a pension for the loss of a breadwinner, or financial compensation from the state in connection with the death of a parent due to the fault of third parties;
• priority right to inherit the property of the deceased father.

In the event of a positive court decision that has entered into legal force, the initiator of the claim must apply to the civil registry office to make changes to the child’s birth certificate, and then to other official authorities to realize the rights and legitimate interests of the minor.