Establishing paternity of a child posthumously

Establishing paternity of a child posthumously

Children born out of wedlock are equal in all existing rights to children born to persons in an officially registered marriage. However, in the first case, the child’s father may not be documented (if a single mother registered the child’s birth at the Civil Registry Office without the participation of the biological parent).

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

How to establish paternity of a child after the death of the father?

The procedure for filing a claim will determine whether the father acknowledged or denied his blood relationship with the child.

• In the first case, the claim is filed within the framework of a special simplified procedure, 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 a general claim procedure, where there are interested parties, a genetic examination may be ordered, and there is a dispute about a 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 father, including the right to priority inheritance of property along with other children and relatives of the deceased.

How to recognize and prove paternity after the death of the child’s father?

Establishing paternity after the death of the father is a legal procedure carried out exclusively through the courts, associated with the restoration of family ties between the child and the deceased parent.

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

• for a minor – to establish the fact of kinship for the purpose of the emergence of corresponding legal consequences, which is, for example, the possibility of receiving a survivor’s pension;
• for an adult child – proof of the existence of family ties for the purpose of the possibility of inheriting along with other relatives of the deceased.

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

Special legal proceedings – applied if:

• the parents were not married;
• voluntary paternity was not established during the father’s lifetime;
• the child was born after the death of the second parent, who knew about the pregnancy from him;
• the father acknowledged the child, but did not have time to formalize paternity;
• the mother has confirmation of the fact of the death of the second parent (usually this is a death certificate).

Statement of claim for recognition of paternity posthumously

Litigation proceedings are 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 denied his relationship with his son/daughter during his lifetime;
• there is documentation confirming the fact of the death of the biological father;
• there is a dispute about the right.

These two types of proceedings differ significantly from each other and require separate detailed examination.

The procedure for recognizing the paternity of a child posthumously through the court

The court hearing of a case to establish the fact of paternity in a special manner is described in the Family Code of Ukraine and can be carried out if:

• the father himself acknowledged his relationship with the child during his lifetime;
• participated in the upbringing of the child;
• lived in the same territory (not a mandatory condition);
• provided financial support to the mother and child, etc.

The key point of this category of cases is the absence of a legal dispute as such and the establishment of a fact that has legal significance.

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

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

The following may initiate the claim:

• the child’s mother;
• guardian/trustee;
• other persons (or organizations) who are responsible for the minor (shelter, orphanage, cadet school, etc.);

How to file a claim for recognition of paternity of a child after the death of the father?

Objectives of submitting the claim:

• assignment of a survivor’s pension;
• the possibility of inheriting the property of the deceased;
• compensation for damage (in the event of the death of a biological father, an accident at work, etc.)

It is important to remember that the purpose of filing a claim to establish paternity is the most important condition for accepting this application into proceedings.

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

• act as a plaintiff (indicate your full name, registration address, contacts).
• take into account that there is no defendant in this case (since a deceased person cannot be a defendant).
• address the statement of claim to the court at the place of residence of the plaintiff.
• determine the specific purpose of filing this claim (pension, inheritance, compensation for damage).
• describe the current situation, supporting it with:
• witness testimony;
• material evidence that the father considered the child to be his own during his lifetime:
• a certificate of cohabitation (if this took place);
• general video and photo materials,
• receipts for the transfer of funds from the accounts of the deceased to the account of the mother/guardian-trustee.
• in the claims, ask the court to recognize the legal fact of establishing paternity with a specific (deceased) person.

It should be remembered that claims for the establishment of family ties, regardless of the type of their production, have no statute of limitations and can be filed at any time.

Consideration of an application for recognition of paternity of a child posthumously in a separate proceeding

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

• the fact of the child’s birth (presentation of a birth certificate upon reaching the age of 14, together with a passport).
• the fact of kinship with the child, or the fact of maintenance (birth certificate + mother’s passport, document establishing guardianship or trusteeship + guardian’s passport, etc.).
• the fact of the biological father’s death (usually a death certificate, a court decision, and if the plaintiff does not have them, a request to call witnesses from whom the court may subsequently request this document).
• the absence of a registered marriage between the parents.
• the fact of the father’s recognition of kinship with the child during his lifetime.
• the absence of a dispute over the right.

Thus, if the application, along with the recognition of paternity, contains a claim, for example, to receive a specific share of the deceased’s property, the court will return the application for the purpose of transferring it to the general claim procedure.

It should be noted that this category of cases is beneficial for the plaintiff defending the interests of a minor child, since:

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

Claim proceedings to establish the fact of paternity posthumously

If a child was born out of wedlock and voluntary paternity was not established, and moreover, the deceased man did not consider himself a father during his life or died before the baby was born (while not knowing about the pregnancy or denying his involvement in it), then an appeal to the court with a claim to establish paternity in relation to the deceased person takes place.

In this case, the court will consider the dispute about the right, which in such a process consists in:

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

This claim may be initiated by:

• mother;
• guardian, trustee;
• organization that supports the minor (institution for orphans, hospital, etc.);
• the “child” himself, who has reached the age of majority

File a claim in court to recognize the paternity of a child after the death of the father

The claim is drawn up in accordance with the Civil Procedure Code of Ukraine and provides for:

• definition of the plaintiff (it can be the owner, guardian/trustee, etc.).
• definition of interested parties (usually relatives of the deceased).
• addressing the statement of claim to the court with alternative jurisdiction (at the place of residence of the plaintiff or interested parties).
• summary statement of facts;
• birth of a child out of wedlock;
• lack of voluntary establishment of paternity during the person’s lifetime;
• fact of denial of the family relationship by the deceased person with the child;
• fact of presentation to the court of evidence of kinship between the deceased father and son/daughter;
• existence of a dispute (about inheritance, receipt of financial compensation, etc.).
• demands on the court;
• establishment of paternity by the deceased person in relation to the child;
• amendments to the child’s birth certificate (filling in the “father” column, assigning the father’s surname and patronymic);
• approval of the minor’s right to inheritance, survivor’s pension, etc.
• Indication of the list of attached documents:
• title documents for the plaintiff (passport for the mother, passport + guardianship document for the guardian, etc.);
• title documents for the child (birth certificate, and upon reaching the age of years – together with the passport);
• documents confirming the fact of death of the alleged father;
• material evidence of the fact of kinship;
• proof of the fact of dispute (conflict with relatives over the inheritance of the deceased, facts of refutation of kinship during the lifetime of the deceased);
• receipt for payment of the court fee (equal to 908 UAH and submitted simultaneously with the claim).

Genetic examination to establish paternity through the court

In general, legal proceedings to establish paternity cannot be carried out without conducting a genetic examination if:

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

If a genetic examination is ordered during the trial, its costs are borne by the party that has expressed a desire for it to be carried out.

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

The downside 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.

Legal consequences of posthumous recognition of paternity of children

If a parent is posthumously recognized as a father, regardless of the procedure for this recognition (in separate or litigation proceedings), his child is endowed with all legal rights associated with such a relationship:

• obtaining the right to the surname and patronymic of the deceased father;
• the right to communication and care from the grandmother, grandfather and other relatives on the deceased’s side;
• the right to receive a survivor’s pension or financial compensation from the state in connection with the death of the father due to the fault of third parties;
• the first 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 with it to the civil registry office to make changes to the child’s birth certificate, and then to other official authorities to implement the rights and legitimate interests of the minor.

Establishing the fact of paternity of a child posthumously: results

Motherhood and childhood, the family are under the protection of the state. Every born child has the right to care, upbringing and protection of rights and interests from both parents to the same extent, even if his biological father was not identified in a timely manner and died.