But what if the father died without properly formalizing his status. His biological child has the right to claim a share in the inheritance of the deceased parent, but first you need to establish the fact of paternity. This can only be done through a court order.

Before initiating a posthumous establishment of paternity in court, it is necessary to clarify some circumstances of the case. If the deceased, during his lifetime, recognized himself as the father of the child, then it is necessary to apply to the district court with an application to establish a fact of legal significance, in the manner of a special proceeding. Another situation is if the father of the child did not recognize himself as such or did not know at all about the birth of the child. In this case, the case is considered in the order of action proceedings, since there is a dispute about the right.

Establishing paternity in special proceedings

The procedure for special proceedings is applied in cases where the father was not married to the mother of the child, but recognized himself as his father. It has a simplified litigation process. In particular, in such cases there is no defendant. Instead of a claim, an application is submitted to the court, and the person initiating the trial is called the applicant.

It should be understood that if the court finds a dispute about the right in the circumstances of the case, the application for consideration of the case in the order of special proceedings will be returned. How to understand if there is a dispute about the right in your case? Determining this is easy enough. Litigation is used in situations where other interested persons are involved in the case, for example, the heirs of the deceased.

In special proceedings, the establishment of paternity after the death of the father, subject to the determination of the following circumstances:

• The fact of the alleged father's death.
• The absence of an officially registered marriage between the mother and father of the child.
• The fact that the deceased recognized himself as the father of the child.
• The purpose for which paternity is established posthumously.
• No legal dispute.

How to prove paternity

In such situations, the most the right way establishing paternity, namely genetic examination, is not applicable. It is possible and necessary to prove only the fact that the deceased, by his actions and in words, recognized his relationship with the child. The means of proof in such cases are very different.

Let's start with written evidence. This can be personal correspondence, telegrams, notebooks, diaries, even notes that the father of the child gave to the mother when she was in the hospital. Almost any written source will do, from the content of which it follows that the deceased considered himself the father of the child. In some cases, it is difficult to establish who exactly wrote the letter or note. To solve this problem, you can turn to the help of handwriting expertise.

Help of a lawyer

Emails, sms, messages in social networks may also serve as evidence. The main difficulty here is the identification of the subscriber. In order to prove that SMS correspondence was conducted precisely with the alleged father of the child, you can apply to the court with a request to request from the mobile operator a certificate of ownership of the phone number of the deceased. Email and social media accounts are also often linked to mobile phone numbers.

Witness testimony, as well as photo and video materials, is another means of proving the fact of recognition of paternity. For example, witnesses can confirm that the deceased lived with the mother of the child during his lifetime, they ran a joint household, the alleged father participated in the upbringing and material support of the baby, considering him his own child.

Such a procedure as establishing paternity after the death of the father is carried out in court. It is the court that, having studied all the circumstances and evidence of the case, can recognize the deceased as the father of the baby.

Foundations

Posthumous establishment of paternity is required if the baby's parents were not married, and the man did not have time to take the actual steps to recognize the relationship. After the death of the father of the child, recognition by his parent may be required in the following cases:

• to apply for a survivor's pension;
• to receive an inheritance;
• to receive compensation if the father died a violent death;
• to fill out paperwork.

There can be many reasons. But when the couple did not formalize their relationship, the man will not automatically be recognized as a dad. This is possible only in an official marriage. Therefore, the establishment of paternity after the death of the father is possible only in court.

How to prove

Before you establish paternity after death with the help of a lawsuit, you should understand all the intricacies of the procedure. It is carried out in accordance with the rules established by several regulations. These are the Family and Civil Codes of the Russian Federation.

The establishment of the fact depends on whether there is a defendant. If there is no defendant, and it is necessary to prove paternity, the court holds a meeting, at which only the plaintiff and witnesses are present. The claim does not need to be filed, a regular application is submitted to establish the fact of paternity. A sample document can be obtained from the court office.

Reference: most often on the opposite side are the relatives of the deceased, who do not agree with the position of the mother. Then the establishment of paternity posthumously takes place at a regular court hearing. The mother of the child draws up a standard statement of claim.

So, on the basis of an application to establish the fact of recognition of paternity, the court holds a meeting and checks the evidence. In this case (when there is no defendant), it is important to confirm that even outside of marriage, the man cared for the child, loved him and was ready to recognize him as his own. Any evidence can be decisive.

Therefore, you should prepare:

1. Photo and video materials.
2. Letters, telegrams, etc.
3. Correspondence in social networks.
4. Receipts from children's stores confirming that the father spent money on the baby.
5. Various receipts that can confirm the implementation of financial support during pregnancy.

Another circumstance proving the applicant's correctness is the testimony of witnesses. You can involve relatives, friends or colleagues of the deceased man. It is not necessary to prove paternity on the basis of a genetic examination in this court proceeding, but it can be done.

Trial

When there is a party protesting against the recognition of paternity, then this fact has to be established on the basis of a claim. The defendant is the relatives of the father, who disagree with the presence of the child. Often such proceedings concern cases where, in addition to establishing the fact of paternity, it comes to inheritance.

That is why lawyers advise not to neglect all the possibilities and conduct a genetic examination. In case of any doubt, the court can also appoint a procedure, but if everything is done in advance, you can save time. As for DNA comparison, the necessary samples can be taken from the parents of the baby's father.

Beyond that, of course, additional evidence is required. An example is facts that can confirm that a man and a woman ran a joint household, etc. Perhaps the father of the child confessed to one of his close friends his opinion about his birth, etc. This is all extremely important.

Statement of claim

The document is drawn up very simply, but if in doubt, you can contact a lawyer. True, this will lead to additional costs. The claim is filed in the district, city or regional court. The application must contain:

1. The name of the judiciary.
2. Information about the claimant: full name, address, etc.
3. If there is a defendant, then all his data are indicated.
4. Statement of the case. The applicant must describe how long the civil marriage lasted (if any), what the alleged father did during the woman's pregnancy, and other details.
5. Requirement. The plaintiff is obliged to indicate that his requirements are the recognition of the fact of the paternity of the person.
6. Documents attached to the claim.
7. Date and signature.

If desired, the mother can ask to change the baby's surname to the father's. But the court can only make a decision. The very procedure for issuing a new certificate is carried out in the registry office. As for the documents, all the evidence in the case was listed above. In addition, you should provide your passport, documents for the child, etc.

Much during the trial depends on the close relatives of the common-law husband. If they are opposed to the mother, then more than one meeting may be required. In the case when the plaintiff is supported by the parents of the deceased, the court always takes this into account.

Not all couples formalize their relationship officially, considering marriage a relic of the past, and create a strong, normal family. And if forces beyond the control of man intervened, abruptly turning life around, and the child remains unprotected either formally or financially, are there any ways to prove paternity and document it?

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

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In the right corner you need to indicate name of the court, full name of the plaintiff, his address, and below - all the data of the person concerned(this may be relatives of the deceased, or Pension Fund if a survivor's pension is required).

Statement of claim the descriptive part should contain a detailed and clear statement of events- how many years a civil marriage or close relationship lasted, what was the man’s opinion about the pregnancy that happened, or was it planned, did he help with the upbringing and care of a young offspring, did he allocate funds.

The text should be written correctly, in an official style, in the course of the story. should contain references to articles of laws.

Also, at the request of the mother, you can make a request to change. But the registry office also has the right to issue a new birth certificate to the child, if paternity is legalized by a court decision.

After signing with decryption and date, you need list the evidence that should be attached to the claim in the same order. Be sure to include among the applications a document confirming the payment of state duty.

Arbitrage practice

There is no statute of limitations on this issue.

Submit an application to the district court at the place of residence of the applicant. If a person recognized himself as the father of the baby and died without having time to formalize paternity, then at the process they will consider all the evidence presented, listen to witnesses, check all the dates in the testimony and evidence for inconsistencies.

If everything looks plausible and convincing, then in accordance with Article 50 of the RF IC, a positive decision will be made by judicial proceedings, carried out according to a simplified scheme.

If there is a dispute about the right, for example, about the right to inherit, then on the basis of Article 246 of the Code of Civil Procedure of the Russian Federation, a statement of claim should be filed on a general basis.

The same objects, letters, records serve as evidence. To be able to include SMS messages in the list of evidence, you will need to attach a response from the telecom operator indicating the full name of the person for whom the phone card was issued (of course, this refers to the deceased father).

This process can be lengthy if the court or the relatives of the deceased insist on a genetic examination, which can only be carried out in a medical facility specified by the court.

Judicial practice shows that in case of support of the mother by the relatives of the deceased father, the decision is unambiguously positive. With an unfriendly attitude on their part towards the heir and his mother, the trials are longer and take place in a morally difficult situation.

However, the court will consider everything that can be collected as evidence, and if the material is convincing enough, the claim will be satisfied.

At the end of the process, the decision, after coming into force, is the basis for further actions to process the child's documents in the registry office.

Legalized paternity gives the right to enter into an inheritance, apply for a survivor's pension and take any legal action.

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 costly and even unethical from the point of view of many, but some mothers or adult children decide to take this step.

Why do you need to establish paternity?

During the life of the father, the testimony of witnesses and the examination of DNA are required, mainly for the sake of proving fidelity and eliminating doubts. When people apply to establish kinship posthumously, it usually concerns money matters. The reasons may be different, but 95% of cases are related to receiving an inheritance or any payments. For example, survivor's pensions. Most often, a posthumous establishment of paternity is required if the child was illegitimate or the parents lived in a civil marriage.

The death of a father in a family where the relationship is not registered

The first frequent case: cohabitation without marriage registration. For the sake of receiving any benefits or due to frequent quarrels and instability of relations, parents decide to put a dash in the birth certificate instead of the father's name. If in the future he dies, then the family is left without the opportunity to receive any payments for the child, despite the fact that he had a dad, wished for his birth and took care of him.

Civil marriage completed, child not registered, father dead

The second case is similar, but with separation before the date of death. Moreover, the end of the relationship can occur both shortly before this, and in a few years. The mother does not consider paperwork important or believes that the process is too complicated.

Usually this happens if there is no sense in this: the father does not want to pay alimony or somehow help the child. Begging is humiliating, the money is small, the DNA examination is expensive. But after death, a child unnecessary to the father has the right to receive his part of the inheritance.

Illegitimate children

Descendants born "on the side" can count on their part of the inheritance on a par with the children of the legal wife. The legislation provides equal rights for any child if the father is recognized as biological. This is regulated by Article 53 of the Family Code.

Applications for posthumous paternity in such cases are often made by illegitimate children themselves. As adults, they want to receive the property due to them.

Death of a parent before the birth of a child or before its registration in the registry office

Here the same situation takes place when people live civil marriage. The only difference is that, quite possibly, they wanted to write the child to the father, but did not have time. If a man died before the birth of a child or in the first days of his life, when a birth certificate has not yet been received, in addition to financial issues, there are also moral and social ones. A dash in a birth certificate is not for everyone. Therefore, there is a need for a formal procedure.

Ways to establish paternity

The court considers any evidence as evidence. 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 whether the court will take the side of 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 a 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 of the UK, as well as paragraph 19 of Resolution No. 16 on the establishment of paternity and motherhood. An examination is appointed in cases where it is impossible to reliably prove the origin of the child in other ways. Even when the plaintiff was able to provide a large number of data, the court has the right to recognize them as unreliable, if they are. Then an examination will be scheduled.

At the same time, it should be borne in mind that such evidence is not the main thing for the court. The conclusion will be made on the basis of the cumulative presentation of all the facts. This is stated in paragraph 20 of the same Decree No. 16.

How can an examination be carried out?

The plaintiff should not be deceived into believing that there are some special little-known ways to conduct DNA analysis of a deceased person. As for laboratory research, everything is carried out in exactly the same way 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 paperwork 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 needed and is not a decisive factor for the court. Therefore, you should not abandon the idea of ​​posthumous paternity establishment just because it seems to be something unacceptable. It might be possible to do without it.

Establishing paternity after divorce

The above decision contains paragraph 14, which deals with the procedure in cases where the parents divorced before the birth of the child or were married at the time of the death of the husband. This applies to situations where they no longer lived together.

The court automatically recognizes the child's descent from the spouse if:

• at the time of his death, his mother and father were legal marriage 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 that will replace him. For example, they could be relatives. But in such a situation, the law will initially be on the side of the mother, so if someone disagrees with the decision, then he will have to look for evidence of rightness. Including expertise, if needed, will fall on their shoulders.

If we take into account the jurisprudence 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, very different. Collect them as much as possible. It is this that becomes decisive when considering the case by the court, and not at all an examination, which, in fact, may not be.

Do not forget that illegally obtained evidence will not be considered by the judges. This applies, for example, to audio recordings obtained by fraudulent means.

Who can claim paternity

To formally prove paternity after the death of the father, you need to sue with the provision of all available grounds. The possibility of considering such situations by judges is prescribed in article 50 of the Family Code.

Art. 49 of the UK indicates the circle of persons who can apply for the establishment of paternity. In this list:

• the mother of the child;
• his guardian or trustee;
• the person whose child is dependent;
• the offspring himself, if he is 18 or more years old.

If the child is already an adult and capable, then without his consent, the establishment of paternity cannot be carried out. It does not depend on the chosen methods. This rule is regulated by paragraph 4 of Art. 48 SC. The same applies to cases where the child has acquired legal capacity in any way before the age of 18. Then no one has the right to apply without his consent.

Despite the fact that article 49 of the UK 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 for paternity remains how they relate to the child. The right is reserved only for those who participate in the maintenance and upbringing. But they can also be denied if there are good reasons for that.