Establishing paternity in court after the death of the father: judicial practice

Last modified: June 2023

The birth of a baby is increasingly occurring among couples living in a civil marriage, i.e. in an illegal relationship, which in case of premature death presupposes the establishment of paternity after the death of the father. This is necessary not only for accepting an inheritance, but also for continuing the rights to use common property after a sad event in the child’s life.

The civil rights of a minor born out of wedlock are no different from the rights of an infant born to legal spouses.

As in the standard situation, paternity is established after death on the basis of the provisions of family law, and the procedure for recognition is determined by the Code of Civil Procedure of the Russian Federation.

When establishing paternity posthumously is indispensable

In addition to the desire to know about your father, establishing paternity is required under certain circumstances:

• registration of benefits from the state for the death of the breadwinner;
• assignment of compensation for the death of the father as a result of the actions of criminals, in the case of murder;
• receiving an inheritance of property left after the death of the father.

A child for whom paternity has been established has the right to act as an heir, regardless of whether the relationship between the parents was registered. It is not necessary to establish paternity right away.

If for some reason the mother or other legal representative was unable to formalize parenthood after death, based on an unlimited statute of limitations, this can be done at any time.

Most often, this happens if the mother intends to claim inheritance of property on behalf of her minor child.

Ways to establish kinship with the deceased

The right of inheritance by law arises due to an established close relationship that is not related to the marital status of the parents. However, paternity is required to be documented.

When a parent dies before the birth of the baby, or he did not have time to confirm his consent to the establishment of kinship during his lifetime, a preliminary court hearing and a court decision are required before inheritance.

The procedure for recognizing the status of a father is regulated by Article 264 of the Code of Civil Procedure of the Russian Federation. Depending on the circumstances of the birth and the availability of evidence of the father’s position regarding the recognition of the child, there are two ways to conduct legal proceedings:

• recognition of the child during his lifetime, but the very fact of paternity was not documented in the registry office (the situation is considered in accordance with Article 50 of the Family Code);
• the father’s death occurred before he knew about the child, or the man did not consider the baby his own, i.e. establishment of paternity occurs with the need to verify the actual biological relationship (the court is guided by the provisions of Article 49 of the Criminal Code).

Special procedure – recognition by the father of the child and unfulfilled intention to formalize paternity

It is easier to identify the father through documentation if there is evidence that the man really expressed his readiness to complete the documents and he simply did not have enough time. This procedure does not require confirmation of blood relationship; the basis will be evidence of the desire of the deceased to raise a child. The main thing is to convince the court of this and provide evidence.

The following are invited to court hearings:

• plaintiff's side;
• witnesses to testify.

• The defendant's side and third parties are absent in this case.
• During the proceedings, any documentary evidence is considered:

• certificates;
• letters and notes;
• correspondence on networks;
• photographic material;
• bank deductions, confirmation of the transfer of money;
• joint purchases in anticipation of the baby;
• video recordings;
• information from neighbors and friends to whom the man informed about the recognition of paternity and was worried about his fate.

The court will definitely hear testimony from relatives and people from close circles. In case of incapacity of the child (before the age of majority), the guardianship authorities are involved, giving consent to the procedure.

If paternity is established in relation to a child who has reached the age of 18, he must confirm his intention to accept the fact of making an official entry about the father in the main personal documents.

As a rule, judicial practice indicates a high probability of a successful outcome of the case if it considers the evidence base to be sufficient. Based on the decision made, the civil registry office makes appropriate changes to the child’s records.

If the father did not recognize the baby before death

1. The process is often associated with a further intention to claim inheritance and restore rights to the property of the deceased.
2. As evidence, the court will accept an extensive and diverse evidence base:

• Witness's testimonies.
• Correspondence on paper, in electronic form.
• Receipts.
• Photos with the ward.
• Video material proving a man's participation in a child's life.

• Having considered all the materials as a whole, the court makes a decision depending on the documents and testimony presented.
• It is quite difficult to establish a complete package of documents due to the individuality of each case. The mandatory list, in addition to the plaintiff’s personal papers, is presented:

The process, when there is no clear evidence of the deceased’s intention to act as a father, is time-consuming and complex. Payment will require not only the mandatory fee, but also the involvement of a lawyer, as well as undergoing examinations. If the judge's decision is positive, the other party will compensate for the costs of the trial. In other situations, court costs and associated costs are shared equally.

• Statement of claim.
• A copy of the document certifying the man's death.
• A certificate confirming the absence of a registered relationship (it is prepared in the civil registry office).
• A copy and original certificate received at the birth of the child.
• Certificate from the service company, housing department, confirming the fact of cohabitation of the deceased and the mother of the child.
• Payment document after payment of the fee.

In addition to a competent statement of claim, convincingly proving the existence of grounds to consider the man the father of the child, compelling documentary grounds will be required. You can file a claim using a sample application, or contact a lawyer specializing in family law. As a rule, in such cases several witnesses are heard who can confirm the close relationship of the deceased with his family.

How to confirm biological relationship

 

DNA testing carried out as part of the trial will provide irrefutable evidence of biological relationship if the man did not admit or did not communicate his decision to others. In most situations, genetic confirmation is required when the death occurred as a result of the wrongful actions of a third party or compensation is expected to be received by a successor in title.

Since it is impossible to take genetic material from the putative father, a relative serves as a source for DNA comparison. If the body of the deceased has not yet been buried, it is possible to organize the collection of material from a candidate for paternity.

For comparison take:

• skin tissue;
• nail part;
• blood;
• saliva;
• hair.

Since it is impossible to prove kinship without the good will of relatives who do not agree to submit biomaterial for a DNA test, examination in such situations is impossible. If there are no other options other than exhumation to obtain biomaterials, the duration of the process extends to several months.

Establishing paternity after the death of a man is a common need for those who intend to claim the inheritance of the alleged father or to receive pensions. However, the outcome of the case often depends on whether the child's surviving parent or guardian can document close family relationships and blood relationships.

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Establishing paternity after the death of the father: reasons, evidence | All about divorce, alimony and division of property

Modern citizens often do not want to register a marriage for a variety of reasons, among which the most common is the reluctance to take responsibility for the unborn child and share their property with someone. After all, as you know, in a legally established union it is common, joint. But there are various tragic situations when the real father of the child dies or simply refuses to recognize him.

https://www.youtube.com/watch?v=Y52_hklxxt0

Since every citizen has the right to know from whom he descended, establishing the fact of paternity protects him in a moral and legal sense. So, when a child was born out of wedlock, even if there is a dash in the document on his birth, he has the opportunity to enjoy the rights of an heir and other ensuing consequences.

It happens that legal evidence cannot confirm the fact of relationship between the baby and the parent, and the father died or did not express a desire to be one during his lifetime. The legislative procedure for establishing paternity comes to the rescue. It can be implemented and initiated by an interested person for a number of reasons:

1. The desire to establish a family relationship between a child and a deceased parent in a state manner.
2. Willingness to enter into inheritance legal relations. After all, the child becomes a rightful heir by law.
3. The possibility of receiving monetary compensation if a man died a violent death.
4. A legally established right to receive survivor benefits for a child.

Establishing the fact of paternal kinship falls within the powers of the court. This is regulated by Chapter 62, 64 of the Civil Code of the Russian Federation “General Provisions on Inheritance”, Art. 10 of the Law “On Insurance Pensions”, Art. 49 RF IC. The procedurally established procedure for recognizing a specific person as a parent is carried out in accordance with Articles 264, 265, 266 of the Code of Civil Procedure of the Russian Federation.

Please note the following points:

1. Cases of posthumous recognition as a father are also possible out of court and do not have specific deadlines.
2. There are situations, for example, when a man is seriously ill even before the birth of a child. And it is obvious that inevitable death will overtake him, and it is possible to solve the problem of establishing kinship in advance. This is done by writing an application to the registry office. It must indicate the full name and consent to the voluntary recognition by the father of a conceived but unborn baby. After his birth and, accordingly, the death of a man, employees of the civil registry office make a record that the citizen who has expressed his consent to be the parent of a particular child is such.

Preparation for trial

Many people wonder how to legalize the fact of establishing paternity after the death of the father.

In other words, what to do if there is direct evidence that a certain man is the parent of a specific child? This fact can only be legitimized in court.

So, if a parent has died, the issue of establishing paternity after the death of the father can be resolved if the following conditions are met:

• the plaintiff proves that the alleged person recognized the child during his lifetime;
• the applicant refers to the fact that the minor is a relative of the deceased, if he did not know him;
• the plaintiff and the child’s father were not married (cohabitation is not taken into account by the judge);
• This type of legal proceedings is carried out within the framework of a special procedure - the establishment of facts of legal significance (Article 264 of the Code of Civil Procedure of the Russian Federation).

To understand the essence of such a procedure, a woman or other applicant needs to clearly understand that the subject of protection will not be a violation of any right, but rather the legal rights of the child. In cases of special (declaratory) proceedings there is no defendant, since he died.

There are only the applicant (plaintiff) and the persons participating in the case.

If for some reason you refuse this procedure, having already begun it, then your appeal will still be considered on its merits, since the law obliges the judge to always conclude cases of this category by issuing a verdict.

Who can act as a plaintiff?

In addition to the person who has a legal interest in the fact of establishing kinship after the death of the father-child, there are a number of categories of citizens and officials who can initiate this procedure:

1. The mother of the child, if the latter has not reached the age of 18 at the time of filing the application.
2. Guardians and trustees of the child, since they are persons whom the law has assigned with the duty of representing the interests of the minor and protecting him from abuse by any persons.
3. Guardianship and trusteeship authorities, as well as their territorial institutions and services. Orphanages, if the mother of a child who did not have a father was deprived of parental rights and died.
4. A person who is raising or dependent on a child. The main thing is that an applicant of this category has a direct interest in establishing paternity and has no self-interest. The court carefully checks these circumstances.

The family law does not explain who exactly is the person who is raising or dependent on the child. But in cases of establishing paternity after the death of the father, there is numerous judicial practice. And it follows from it that such persons can be: brothers or sisters (even if they are half-blooded), who are dependent on the child, uncles, aunts, grandmothers, grandfathers, stepmothers, stepfathers.

Preparation of evidence

Of course, irrefutable evidence in court of a child’s origin from a specific parent is the entry about the father in the child’s birth certificate and in the registry office in the register of facts of legal significance. Today the law allows any type of evidence in this category of cases.

They must have a special property - confirm the origin of the child from a specific person, and also be reliable.

What facts can become such confirmation in a statement of claim to establish paternity after the death of the father? The list of such evidence has been developed by judicial practice and is the following list:

1. Joint photographs and video materials, recordings from audio media, which can confirm the fact of a warm relationship between the child and the deceased man, as well as between his parents.
2. Certificate of death of the father - it will serve as the basis for initiating legal proceedings.
3. An extract from the civil registry office confirming the absence of marriage between the applicant and the deceased father of the child.
4. The birth certificate of the child, in which there is a dash in the “ father ” .
5. Documents confirming the residence of the applicant and the deceased citizen in the same residential premises (certificate from the Housing Office).
6. Receipts confirming the purchase of property for mutual use.
7. Documents indicating the mutual care of the deceased father and mother of the child (applicant).
8. Statements from the deceased father's accounts confirming the fact of providing financial assistance to the child.
9. Outpatient cards from a gynecology or maternity hospital, since primary data about the baby’s father is indicated from the mother’s words.
10. Testimony of witnesses who can confirm the fact of meetings or cohabitation of the deceased father and child.
11. Correspondence on social networks is considered evidence if it has not been deleted. It may indicate a warm relationship, a sexual relationship between the mother and the child’s deceased father.
12. Letters, postal orders, parcels, as well as receipts for their receipt.
13. Petitions or applications submitted by a deceased citizen in support of a child’s application for placement in a kindergarten, school, or in clubs or sections.

Divorce of spouses with a small child

One of the main evidence for the court, which it will pay attention to, is the conscientious procedural behavior of the applicant (mother, guardianship and trusteeship authorities, the person who is dependent on the child). What does the judge pay attention to:

• appearing for the examination with the child;
• willingness to finance genetic testing;
• validity of the claim (i.e. sufficiency of evidence).

Genetic examination

Of course, the strongest evidence in cases of establishing kinship is the results of genetic testing.

An expert’s conclusion about the origin of a child from a specific father is carried out using the method of “genetic fingerprinting”. However, this is only possible when the body is not buried and is in a hospital or morgue.

If there is no genetic material of the deceased father, the court decides to conduct an examination by taking DNA samples from relatives of the potential parent of the child, who is no longer alive.

This situation is extremely rare.

If during the process the court comes to the conclusion that it is impossible to take DNA samples from the deceased father of the child and none of the relatives of the deceased gives voluntary consent (without which they cannot be forced to take them) to obtain samples for comparative research, then exhumation may be carried out. This method is extremely rarely used by the court, since it is not ethical from the point of view of respect for the personality of the deceased.

Genetic examination is established by court decision. Moreover, payment for the research is borne by the citizen who filed an application to establish paternity in court. However, there are some peculiarities with the distribution of the burden of paying for a DNA test:

• the amount is deposited with the court before the decision is made;
• if the applicant evades payment, the medical institution that conducted the examination may bill him in court;
• If during the proceedings a positive decision is made in favor of the plaintiff, then the costs will be borne by the relatives of the child’s deceased father.

Is it possible for a father to fight for his child through the courts?

Statement of claim: establishing paternity after death

In order to initiate a case of this category, it is necessary to correctly draw up a statement of claim to establish paternity after the death of a potential parent. In order to write it, you do not need to spend a lot of money on the services of a lawyer, since the main and determining factor in this case will be the strength of your evidence.

Thus, a statement of claim to establish paternity after death must contain the following information according to the sample below:

1. Name of the court (the application is submitted to the district court at the place of residence of the deceased parent).
2. Information about the applicant (upper right corner): Full name, address, email, phone number, place of work.
3. Information about the deceased father of the child (series, passport number).
4. Information about witnesses (registry office authorities, maternity hospital employees, guardianship authorities).
5. The name of the application “to establish paternity after the death of the father.”
6. Information about the child and his origin on the maternal side.
7. Your arguments (why this particular citizen is the father of the child, with all the evidence attached).
8. A statement of opinion regarding the reasons why a man did not acknowledge or establish paternity during his lifetime.
9. The purpose of the appeal is to ask the court to establish paternity.
10. Link to legal provisions.
11. Your requirement is to establish paternity of a specific child.
12. Request to order a DNA examination.
13. List of attached documents that are used in court as evidence.
14. A copy of the receipt for payment of the state fee.
15. Date and place of application.
16. Signature.

Sample application to establish paternity after the death of the father:

Trial

During the hearing of the paternity case, the judge will listen to all representatives of the process. Namely: the applicant, the expert who conducted the DNA, witnesses, relatives of the child’s deceased father. All evidence relevant to the case will be checked. And all of them will be carefully studied for authenticity.

If the judge considers the applicant’s arguments credible and sufficient, a positive decision will be made in the case. After the result is rendered, the child is recognized as the daughter or son of the deceased, which means that he receives all the rights of the closest relative. These include:

• legal entry into inheritance as a full-fledged child;
• change of patronymic, surname;
• receiving a survivor's pension;
• communication with your relatives on your father’s side;
• compensation if the man died a violent death.

Conclusion

Establishing paternity posthumously in court is not such a rare procedure; it is used quite often in all instances.

15% of cases considered in district courts are specifically about establishing paternity or other facts of legal significance.

This procedure is very relevant for those persons who have the right to be a full-fledged child of their parent, as well as to enjoy all the rights of a relative of the deceased.

Acknowledgment of paternity after the death of the father

If it was not possible to establish paternity of a child during the father’s lifetime, the law provides for an additional chance. A fact of legal significance is established by the court upon the application of an interested person. What is recognition of paternity after the death of the father and how to draw up documents to establish the fact?

Is it possible to restore paternity after the death of a father?

Information about the birth is entered into the child’s personal documents on the basis of a medical certificate about the birth. There may be no record of the mother only if an abandoned child is identified. In other cases, it is mandatory.

The situation with the record about the father is more complicated. It is entered into the child’s birth certificate based on the following information:

• stamp in the mother’s passport confirming marriage;
• within 300 days after the divorce based on the divorce stamp;
• mother's statements.

If the above information is not available, a dash is entered in the father column.

Entering information at the request of the mother and the complete absence of information about the father assumes that information about the child’s biological father is unknown. The situation can be changed by establishing paternity.

If a citizen during his lifetime did not have time to contact the district registry office with an application to enter his data into the child’s documents, the Family Code provides for the possibility of establishing paternity in the event of a man’s death.

Establishing and restoring paternity are different concepts. Restoration means the return of parental rights after deprivation in court. Is it possible to restore paternity after death? Parental rights are valid only during the life of the father, mother and children.

Recognition of paternity after the death of the father

How to prove paternity after the death of the father? To do this, the interested person applies to the court. In accordance with the law, the applicant may be:

• mother of a minor;
• legal representative (adoptive parent, guardian/trustee);
• organization for orphans (if the child is under supervision);
• child.

The fact of paternity can be established both in relation to a minor and those who have reached the age of eighteen.

Recognition of paternity through the court after the death of the father is established through special legal proceedings. Its features:

• the violated right is not restored, but the legitimate interest of the applicant or the person he represents is protected;
• the claim cannot be waived;
• the list of participants in the process is limited (only the plaintiff and interested parties).

The law does not establish a limitation period for cases of recognition of paternity.

Step-by-step instructions for establishing paternity in court:

1. Collection of documentation.
2. Drawing up a statement of claim.
3. Selection of witnesses.
4. Going to court.
5. Participation in a preparatory conversation.
6. Meeting.
7. Obtaining a court decision.
8. Contact the regional registry office at the place where the child’s birth was registered.
9. Payment of state duty.
10. Receiving a new document.

The most popular reasons for posthumous paternity are obtaining a survivor's pension and receiving the deceased's inheritance.

Required documents

Before initiating a trial, it is necessary to prepare the evidence base. When filing a claim for acknowledgment of paternity after the death of the father, you must provide the following information:

• personal documents of the child and the applicant (birth certificate, passport);
• on registration/dissolution of the marriage union by the mother (if the mother and child have different surnames);
• resolution on the appointment of guardianship/trusteeship (if the minor is under guardianship);
• agreement on the transfer of a child to a foster family (if the applicant is a foster parent);
• certificate of guardian or foster parent;
• resolution on placement under supervision in an institution for orphans (for pupils of organizations);
• power of attorney from a representative of an institution for orphans.

The following information must be provided as evidence in the case:

• SMS correspondence;
• correspondence by email, social networks, instant messengers;
• letters, notes;
• printouts from pages on social networks with photographs of the child;
• joint video of a man and a minor;
• photos;
• sales receipts for the purchase of clothing, food for children, toys;
• statements from the mother's account about the receipt of funds from the child's father.

A separate type of evidence is witness testimony. Male and female relatives, neighbors, and friends of parents can act as witnesses.

In the trial, citizens must explain that the father communicated with the child, considered him his own, loved him.

If necessary, the court may order a genetic examination. However, it is not the main evidence in court. The procedure is carried out if the relatives of the deceased deny relationship with the child. Often it is the father’s relatives who initiate the DNA test.

Sample statement of claim

Preparing for the court to recognize paternity after the death of the father includes drawing up a statement of claim. You can prepare the document yourself, but it is advisable to seek help from a lawyer. In practice, there are few specialists in the field of family law, however, if there is a dispute with close relatives of the deceased, the support of a lawyer is necessary.

How to file a claim? Let's take a closer look.

The upper right corner of the document contains the following information:

• name of the district/city court at the applicant’s place of residence;
• personal data of the plaintiff (full name, date of birth, passport details, residential address, contacts);
• information about the district guardianship department;
• interested people.

You can download the claim form for acknowledgment of paternity here

The text of the statement includes:

• information about parents living together, running a common household, regular meetings;
• fact of recognition of paternity based on evidence;
• requirement to order a post-mortem examination (if necessary);
• reference to legislation (Article 50 of the RF IC, Article 266 of the Code of Civil Procedure of the Russian Federation);
• claim;
• request for witnesses;
• a request for exemption from the fee if the claim is to protect the rights of a minor child (clause 15, part 1, article 333.36 of the Tax Code of the Russian Federation);
• list of evidence;
• date, signature.

Is it possible to establish paternity without an examination? The law does not prioritize genetic test results over other types of evidence. Therefore, the order of analysis is carried out by the court only as a last resort.

Arbitrage practice

As practice shows, recognition of the paternity of a child posthumously is carried out as soon as possible in the absence of objections from the relatives of the deceased. Otherwise, the proceedings may continue for a long time.

Example. Galina A. applied to the district court to recognize the fact of establishing paternity posthumously in relation to her minor son Yegor. Citizen Limonnikov A.A. led an antisocial lifestyle and died of tuberculosis. Limonnikov A.A. and Galina A. cohabited for a long time, they had a son, Yegor.

Parents did not establish paternity for the woman to receive single mother status. After the man’s death, Galina decided to establish paternity in order to obtain a survivor’s pension. The only relative of Limonnikov A.A. was his brother. The man confirmed in court his family ties with Yegor. Claims of Galina A.

were satisfied.

The trial will take the longest period of time if the father’s relatives refuse to recognize family ties with the child. For example, the widow of the father is involved as an interested party in establishing paternity of a child from an extramarital affair. If you have a competent lawyer, the trial can last more than a year.

You can get free legal advice on recognizing paternity after the death of your father by calling 8 (800) 777-08-62 ext. 416

or seek free legal advice by calling the numbers in your region. Be sure to include your extension number

RegionPhone

Moscow, Moscow region	8 (499) 703-35-33 ext. 785
St. Petersburg, Leningrad region	8 (812) 309-06-71 ext. 437
Krasnodar region	8 (861) 203-64-41 ext. 416
Sverdlovsk region	8 (343) 318-28-46 ext. 418
Voronezh region	8 (473) 204-54-67 ext. 415
Novosibirsk region	8 (383) 280-46-81 ext. 416
Nizhny Novgorod Region	8 (831) 429-17-72 ext. 416
Volgograd region	8 (844) 278-04-56 ext. 415
Republic of Bashkortostan	8 (347) 214-53-29 ext. 416
Krasnoyarsk region	8 (391) 204-65-59 ext. 417
Rostov region	8 (863) 303-61-49 ext. 416
Ulyanovsk region	8 (842) 224-21-78 ext. 417
Chelyabinsk region	8 (351) 202-13-44 ext. 415
Stavropol region	8 (865) 220-71-53 ext. 416

How to disprove paternity after the death of your father

After the death of a man, it is possible not only to confirm paternity, but also to refute it. If during his lifetime a citizen doubted his family ties with the child, the process can be completed after his death. To do this you need:

• a statement of claim with attached evidence filed by a citizen in court to challenge paternity;
• a statement written by a citizen in his own hand, with information that the man does not consider the child his own.

The mother of the child can initiate the process of challenging paternity posthumously, provided that the woman was not married to the man included in the child’s documents.

If a mother wants to establish paternity after a man's death, she must go to court. In the absence of a dispute with the relatives of the child's father, the woman can independently prepare a claim. To avoid difficulties, it is better to involve a specialist. If there are conflicting relationships with relatives of the deceased, the plaintiff must submit a request for an examination.

Posthumous establishment of paternity: causes, procedure, consequences | Lawyer

Unfortunately, statistics indicate that posthumous paternity determination is not a rare legal procedure within the Russian judicial system. This procedure is carried out with the aim of leaving the child with the opportunity to inherit and receive social support from the state, even in the event of the death of his parent.

Establishment of paternity after the death of a parent is carried out exclusively in court. An important factor is the direct recognition of the child as a deceased person during his lifetime. In addition, when establishing paternity after the death of the father, the procedure can only be started if there is evidence certifying that the child was born from the deceased parent. Judicial practice on such disputes is presented both in relation to young children and those born before 1968; in the latter case, the plaintiff must have evidence that the minor was fully dependent on the alleged father until his death.

Reasons for establishing kinship after the death of the father

There are only two main reasons for establishing paternity posthumously:

1. if at the time of the child’s birth the parents were not officially married and the father did not recognize the child until the moment of death, or died before his birth;
2. if the father recognized the child before his death, but at the time of birth the spouses were already or were not yet registered, and documents to confirm paternity were not submitted to the registry office.

Paternity Establishment Procedure

Persons who can file a claim to establish the fact of recognition of paternity in court:

• mother of the child;
• a person who is dependent on a child who has not reached the age of majority;
• the official guardian of the child, provided that the latter has not reached the age of majority;
• directly the child himself upon reaching 18 years of age.

According to the civil procedural legislation, this category of cases is classified as special and has its own procedure for consideration:

• The subject of the dispute is not the violated or disputed rights, but only the interests of the applicant.
• Only the plaintiff and interested citizens are present in the consideration of the case, who provide an explanation of the case.
• This process does not provide an opportunity to refuse or accept a claim, or to file a motion to secure it.
• Since this category of cases does not have a defendant, the application is submitted by the plaintiff at his place of residence.
• A statement of claim to establish paternity posthumously is filed either with a magistrate or with a court of general jurisdiction, depending on the situation. For example: if it is necessary to formalize the child’s right to the inheritance of a deceased father, the claim is filed in a court of general jurisdiction; if we are talking about issuing a social pension or benefits, the application should be submitted to a magistrate for consideration.
• The statement of claim should describe the current situation in detail, in particular indicate the circumstances and reasons that prompted the initiator to begin the procedure for establishing paternity. Copies of the following documents should be attached to the statement of claim:
  • child's birth certificate;
  • a certificate from the registry office confirming the absence of marriage to the deceased father of the child;
  • death certificate or other document confirming the fact of death of a person;
  • certificate of cohabitation, if available;
  • a receipt confirming payment of the state fee;
  • proof of paternity of a specific person.

The main evidence for recognizing paternity posthumously is documents and testimony. Thus, in accordance with Article 49 of the Family Code of the Russian Federation, as confirmation, the plaintiff may need to provide:

• personal correspondence of the deceased with the mother of the child or with the child himself, from which it becomes clear that the person recognizes his child and does not renounce him (for example, letters written by the alleged father of the child);
• a written statement from a deceased citizen proving his paternity indirectly - for example, enrolling a child in clubs and sections, signing an agreement in preschool and school institutions;
• joint photographs and videos.

Witnesses can be close relatives of the child’s deceased father, neighbors at the place of residence, acquaintances and other persons who can confirm the fact of the father’s participation in the child’s life.

State bodies, for example, guardianship and trusteeship authorities, can also act as witnesses.

In addition, medical documents - the results of DNA analysis - can serve as evidence, but this procedure can only be carried out with the consent of a close relative of the deceased person, for example, his parents, brothers or sisters.

Download a sample application for establishing the fact of recognition of paternity

Is it possible to object to a claim to establish paternity?

There are often cases where applications filed by the mother of a child to establish the paternity of a deceased spouse have the most complex review process, subject to certain circumstances. In particular, such circumstances may include counter-objections filed by close relatives of the deceased, including the official wife.

The fact of relationship is confirmed by photographs, letters and testimony only if the deceased father was not officially married; in the opposite situation, it is much more difficult to prove paternity.

As a rule, simply evidence and witness testimony is not enough for the court to make a decision if the alleged father lived in another family and a DNA test is required.

Important! Russian judicial practice shows that if there is a counterclaim to a filed application to establish paternity, in 95% of cases the court, when making a decision, is guided only by the results of a DNA analysis.

DNA paternity testing after the death of a parent

Today, a DNA test is a fairly common procedure that allows one to establish paternity, both with a living parent and after his death.

In the case of posthumous paternity determination, DNA analysis is carried out only after a court decision in a specific clinic, which is indicated in the document.

The procedure is carried out in compliance with sanitary and legal standards; materials from close relatives are used as biomaterial, as well as a blood test from a deceased person, if he took it during his lifetime.

A paternity test gives a probability of 99% of cases, which significantly increases the chances for the plaintiff of a positive outcome of the case. After receiving the result, the documents are sent to the court, which sets a new date for the consideration of the case, where a decision is made to satisfy the plaintiff’s claims or deny them.

If the court makes a positive decision, the plaintiff receives this decision and applies to the registry office with an application, attaching the specified decision and the child’s birth certificate to the document. A few days later, on the basis of a court verdict, the plaintiff receives from the registry office a new certificate of paternity, which gives the right to claim the inheritance of the deceased father and to receive state benefits.

Summarize

As can be seen from the above, establishing paternity after the death of a parent is a troublesome and labor-intensive matter, which, moreover, often requires large financial investments (for example, paying for a DNA examination).

Consequently, one should treat one’s position as a mother with a child most carefully and responsibly, since judicial practice notes cases of refusal to satisfy a claim to establish paternity after the death of the father.

Posthumous paternity determination and inheritance

Establishing paternity while the alleged father is alive is a common situation, but what to do if the alleged father has died. How to exercise inheritance rights? This will be discussed in this article.

Case plot:

A woman asked for legal assistance, explaining that she had a young child, whose father during his lifetime did not have time to formalize paternity in the prescribed manner with the registry office.

The child's alleged father has died, and accordingly the latter has inheritance rights, which he can exercise if the relationship is confirmed.

In addition, if paternity is established, the child who was dependent on the deceased will receive the right to receive a survivor's insurance pension.

A little theory:

Current legislation provides two ways to resolve this situation.

1. In a special proceeding, by filing an application, to establish a fact of legal significance, namely, the establishment of the fact of lifetime recognition of paternity.

The peculiarity of the first way is that it is necessary to prove that the deceased recognized his paternity during his lifetime, but for one reason or another did not have time to formalize it, and there is no dispute about the right (for example, a dispute between heirs). It is the category of “dispute about law” that distinguishes special proceedings within the framework of the Code of Civil Procedure of the Russian Federation from claims.

The second way is applied if a dispute about the right arises or may arise between the parties (heirs in this case), in which case paternity must be established within the framework of legal proceedings.

The complexity of the situation is that in judicial practice there is no consensus on what claim should be brought to protect the violated right.

Is a claim to establish paternity (the fact of paternity) sufficient or is it necessary to add a requirement to recognize property rights through inheritance? There is also no consensus among legal practitioners on this matter.

Only on this portal this issue has been repeatedly discussed in articles by respected colleagues “Establishing paternity when the testator has died,” “You have a dad...” The case about establishing paternity when the child’s father has died.”

By analyzing a large amount of judicial practice, I concluded for myself what kind of claim is necessary to protect the violated right in the specific case under consideration; this claim was fully satisfied, the rights of a minor child were protected. But first things first.

The state of things at the “start” of the case:

The situation in the case developed in such a way that before turning to me for legal assistance, the trustee approached the notary with an application to accept the inheritance; in addition, two children of the deceased and his mother also approached the notary with the said application.

The notary explained to the trustee that in order to receive an inheritance it is necessary to provide documents confirming the relationship of the deceased and the child.

If this decision had entered into legal force, the child would have received the inheritance, but other heirs filed an appeal, in which they indicated that they did not agree that the deceased recognized paternity and a dispute about the right arose between them and the child, represented by the legal representative. The appellate instance overturned the court's decision, leaving the application without consideration, explaining to the trustee the right to go to court in the manner of claim proceedings.

Claim proceedings:

After the application to establish the fact of recognition of paternity was left without consideration, a claim was filed to establish paternity (the fact of paternity) of the deceased in relation to the trustee’s minor child. The defendants were the heirs (two children and the mother of the deceased), the registry office acted as a third party.

Simultaneously with the claim, an application for securing the claim was filed, according to which the court prohibited the notary from issuing a certificate of the right to inheritance in ¼ of the inheritance mass, thus preserving the property that would be due to the child in the event of establishing the paternity of the deceased.

There is a lot of talk about the need to file claims for recognition of ownership of inherited property, that paternity cannot be established if the alleged father has died, and that such a claim is the wrong way to defend. I do not think so.

I believe that if (as in the case under consideration) the child’s share in the inherited property is preserved by securing the claim, then if the requirements are satisfied, the notary will issue a certificate of the right to inheritance in the specified part upon presentation of the corresponding court decision, and there is no need to make demands for recognition of ownership rights in the order of inheritance, since there is no violation of the right in this part. Looking ahead, I will say that this is what happened in this case.

I believe that the opportunity to establish the paternity of a person after his death in relation to his child is provided for by the current legislation of the Russian Federation as an independent way of protecting one’s right (Article 49 of the Family Code of the Russian Federation, paragraph 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16 “On the application of legislation by courts when considering cases related to establishing the origin of children”).

Proof process:

Separate attention should be paid to the process of proof in the case under consideration. Proof was complicated by the fact that the potential father of the child had died, which in turn complicated the forensic molecular genetic examination. The expert’s conclusion, although it is serious evidence in this category of cases, is not the only one possible.

During communication with the trustee, it was established that we will be able to present to the court a body of evidence confirming the paternity of the deceased, and if the examination cannot be carried out, we will be able to operate with the specified evidence.

The first group of evidence consisted of copies of civil case materials.

During his lifetime, the child’s father filed various lawsuits, in the text of which he referred to the presence of children, including the presence of an illegitimate child - the son of my confidant.

Copies from the materials of these civil cases were requested by the court at my request and confirmed that the deceased considered himself the father of the child, indicated his presence and asked to be protected, including his rights.

The second group of evidence consisted of appeals to government agencies.

It was established that the deceased, during his lifetime, submitted an application to the Pension Fund of the Russian Federation for the distribution of his pension savings in the event of his death.

In this application, he asked to transfer his pension savings in the event of his death to his children, including his youngest son, the trustee’s child.

There were also statements from the deceased to various administrative authorities, in which he also indicated that he had a child, indicating his full name. These documents were also requested by the court at my request.

The third group of evidence is photo and video materials, testimony of witnesses.

The court was presented with photographs and video recordings that showed the deceased with the child of the trustee; photographs and video recordings were taken over a long period of time and indicated that the deceased was raising the child, caring for him, walking together, etc. In addition, witnesses were questioned and explained that the deceased had a joint household with the trustee, lived together and recognized the child as his son.

Forensic molecular genetic examination:

Despite the presence of a body of evidence, I considered that it was necessary to apply for a forensic molecular genetic examination.

By sending a number of legal requests, it was established that such an examination can be carried out in two ways: 1) using the preserved biological material of the deceased 2) by collecting material from his relatives (parents, children, brothers, sisters).

• In the case described, during the autopsy of the deceased, biological material was preserved, packed in paraffin blocks, which, according to the response of the expert institution, could be used for examination.
• Also in the case were defendants - relatives of the deceased, from whom the biological material necessary for the examination could also be obtained.
• Taking into account the available initial data, a request was made to conduct a forensic molecular genetic examination, the production of which was entrusted to a state expert institution.
• For the examination, biological material of the deceased was sent, and biological samples of his relatives were also taken.
• According to the conclusions of the examination, it followed that the deceased was the biological father of the trustee’s child.

Summary of the case:

Based on the available evidence, the court decided to satisfy the claims in full. Subsequently, with this decision, the trustee turned to a notary and received a certificate of the right to inheritance in ¼ share of the inherited property due to the child of the deceased, and the child was also assigned a survivor's pension.

I do not have a court decision on this case at my disposal, so for your study I will attach the text of the debate and the court’s ruling on securing the claim.