The child was born after the death of his father. Posthumous establishment of paternity

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 accounts of the deceased 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 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 for:

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 have it carried out.

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.

With the growing popularity of civil marriage, certain troubles are increasingly arising. As children are born in such marriages, it often becomes difficult to establish paternity. Particular difficulties arise when the future father dies. A young mother sometimes has a need to prove the relationship of the baby with the deceased person. For example, a girl wants to file for the loss of a breadwinner or claims the inheritance of her common-law husband.

Methods for establishing paternity

There are three ways to establish kinship when the spouses are not married. They differ in the conditions and sequence of the procedure. Paternity can be established in the following ways:

• voluntary confession;
• by means of a court decision;
• posthumous establishment of paternity through the court.

Voluntary recognition of kinship

Established in the case of unregistered relations between common-law spouses. Together they submit an application to the registry office for recognition of paternity (maternity is recorded automatically). If the baby’s mother either died, or she was deprived of parental rights after a trial, or she was declared incompetent by the conclusion of specialists, then the father can submit an application only with the consent of the relevant authorities. Here it is important to take permission from the guardianship authorities.

Sometimes, after the birth of a baby, due to some circumstances, parents cannot submit an application together. Then it is provided for its submission to the registry office before the birth of the child.

When a child reaches adulthood, the process of establishing paternity is carried out only with the permission of the first one.

Judicial establishment of paternity

Situations often arise when the alleged father does not want to recognize his minor child. Here the mother can only achieve justice in court.

Some amendments were made to the Family Code in March 1996. Therefore, if the child was born after the changes were made, establishing the fact of paternity is regulated by Article 49 of the RF IC. The court accepts and considers all evidence presented that confirms the birth of the baby from the person indicated in the application. All possible evidence is listed in Article 55 of the RF IC.

For older children, the procedure is carried out in different aspects. In this case, the court will be guided by Article 48 of the RF IC when making its decision. Here the plaintiff proves the common management of the household, as well as the cohabitation of common-law spouses at the time of pregnancy with the subsequent birth of a joint child. There are no statutory deadlines for establishing paternity. You can go to court at any time after the birth of the baby.

Establishing paternity after death

Posthumous establishment of paternity is carried out only in court. The fact that a born baby is recognized as a deceased person during his lifetime is not important here. Also, the establishment of paternity begins only after the provision of evidence that certifies the fact of birth from a deceased person. This case only applies to children born before March 1996.

The court also deals with older disputes. If the child was born before October 1, 1968, the court will recognize the paternity of the deceased person if there is evidence that the then minor was fully dependent on the putative father before his death.

Reasons for establishing kinship

There are only two reasons that entail posthumous establishment of paternity.

1. When the baby’s parents were not officially married, and at the time of death the alleged father did not recognize his own child.
2. If a man acknowledged paternity before his death, but at the time of the birth of the baby the spouses were already or were not yet officially married.

Filing a claim in court

In addition to the mother, some other persons can file the required claim to establish kinship. The following have the right to go to court:

• a guardian officially confirmed in the case when the child has not reached the age of majority;
• if the baby is dependent on someone, then the person supporting the minor will sue;
• Upon reaching the age of 18, the child himself can file a claim in court.

Evidence that the court takes into account when making its decision

Article 55 of the RF IC specifies all admissible evidence that a plaintiff can present to the court when establishing paternity. These include:

• Letters written by the alleged father to both the child's mother and the minor himself.
• Written statements from a deceased person that indirectly prove paternity. These could be registrations in clubs or sections that were carried out by the alleged father.
• Witness's testimonies. The court will hear the opinions of the mother's neighbors and relatives, who will talk about the spouses' relationship. Also here, if possible, government agencies will be involved, which can provide important evidence in this matter.
• Medical evidence. An important aspect in posthumous paternity establishment is the results of DNA analysis. Of course, this procedure is only possible if the deceased person has close relatives, for example, parents, sisters or brothers.

DNA paternity testing

How is this done? Post-mortem paternity determination is often carried out only after a test has been performed. Today, such cases are quite popular and more effective. A paternity test is carried out only after a court decision and in a specific clinic that will be indicated. DNA analysis is carried out in strict compliance with all sanitary and legal standards. In connection with the death of the father, specialists use biomaterials from close relatives. Parents or siblings can act as a source for collecting biomaterial for DNA paternity testing. Specialists can also use blood tests of the deceased person, which he took during his lifetime.

A paternity test gives a 99% probability, which will significantly increase the chances of a positive outcome for the plaintiff. After completing this procedure, the results are sent to the court, and a new date is set for the consideration of the case. If the decision is positive, the mother or other representative of the minor child writes an application to the registry office, attaching copies of all necessary documents. These include the child and the court decision. Based on the court opinion, a few days later the mother receives a new certificate of paternity. With this document, a woman can apply for benefits for the loss of a breadwinner, as well as an inheritance.

Conditions for filing an application for recognition of paternity of a deceased person

An application to establish the fact of paternity submitted to the court must be drawn up in accordance with all legal norms. If the mother or guardian of the minor is not aware of the entire procedure, it is best to consult an attorney or lawyer for advice. Because, in addition to the application, you must attach copies of some documents. If filed correctly, the court will soon take your situation into account and begin work. In the application, the mother must indicate all the information about the deceased putative father and the joint minor child.

List of copies of documents required for consideration in court:

• Death certificate of the putative father.
• Birth certificate of a joint minor child.
• Certificate of cohabitation from place of residence (if available).
• Receipt of payment of the required state duty.
• Evidence of paternity of the deceased person (photos, letters, etc.).

Objections to an application to establish the relationship of a deceased person

It sometimes happens that a mother's application for paternity of a deceased common-law spouse is considered more seriously due to certain specific circumstances. They can be counter-objections, often statements of claim. Such a claim could be filed or, even worse, by his official wife.

In the case where the deceased putative father was not officially married to another woman, the fact of relationship is confirmed by evidence in the form of photographs or letters, as well as with the help of witnesses. If the man was officially married, then it is much more difficult to prove justice. Despite all the evidence and testimony presented, the court will require a DNA test. According to experts in the legal field, if a counterclaim arises against a submitted application, the court, when making a decision, is guided only by the results of the analysis.

Summarize. Establishing paternity after the death of a father is a rather troublesome matter, and sometimes requires large financial costs. Therefore, establishing kinship for an unregistered couple should be treated more responsibly. Because judicial practice notes the moments when establishment through the court failed. It is not easy for a young mother to survive the current situation alone.

Last modified: June 2019

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. However, if the child was born after the death of the common-law spouse, it is difficult to establish paternity and you will need to go to court. 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

A child needs both parents, and when this is physically impossible, then at least the identification of the father and legal recognition of this fact.

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 immediately. 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 relationship 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 fact of paternity itself was not (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.

The process is more difficult for a man who did not recognize paternity during his lifetime (due to ignorance or denial of the fact). A controversial situation arises that requires compliance with a certain procedure under civil procedural law.

The process is often associated with a further intention to claim inheritance and restore rights to the property of the deceased.

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.

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.

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:

• 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 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 goodwill of relatives who do not agree to submit biomaterial for the purpose, 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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Posthumous establishment of paternity, as evidenced by Russian judicial practice, is not such an exceptionally rare legal procedure.

Posthumous establishment of paternity in judicial practice is carried out for three purposes related to the property rights of the child:

• for a child born in a civil marriage to receive an inheritance after his deceased father;
• to assign a survivor's pension to a minor;
• for compensation for damage caused to a deceased citizen. This is possible, for example, when the death of the father is considered violent. In order to officially recognize a child as a victim in this situation, and, accordingly, entitled to compensation from the perpetrator, paternity must be established.

Most often, the need for such establishment of paternity after the death of the father himself is associated with problems of inheritance. The deceased citizen, who is the actual father of the child, leaves an inheritance, but there is no will. As a result, neither the common-law wife of the deceased nor his child, for whom paternity was not documented during the father’s lifetime, has the right to inherit, since they are not considered legal heirs.

Posthumous establishment of paternity is possible only through court. The Plenum of the Russian Supreme Court in its Resolution of 1996 noted that the Family Code of Russia, as well as the Code on Marriage and Family that was previously in force in the RSFSR, do not exclude the legal possibility of determining the origin of a child from a father who is not in a marital relationship with his mother. Accordingly, in the event of the death of a given citizen, the courts have the right to establish the fact of paternity using the procedure for special proceedings.

The fact of paternity after the death of the father in the specified order can be established by the court under the current family law only in relation to children born no earlier than March 1, 1996, if the interested parties have an evidence base that reliably confirms the fact of the origin of a particular child from the deceased father (Article 49 of the Russian Family Code).

In relation to children who were born from October 1968 to March 1996, paternity is established through legal proceedings if the plaintiff has evidence certifying at least one of the circumstances mentioned in Article 48 of the Code of Laws of the RSFSR.

Where to contact?

The legislation provides for two independent types of grounds for an interested person to file an application to the court to establish the paternity of a deceased citizen. Depending on these grounds, the established procedure for legal proceedings will differ.

The first situation arises when, based on the provisions of Article 49 of the RF IC, when the deceased father could not recognize the fact of paternity during his lifetime. Here, too, two options are possible. Firstly, a citizen could refuse to acknowledge his paternity. Secondly, the deceased may not have had time to complete a legally significant act (recognize paternity) before his death. This happens, for example, when the actual father, who did not register the marriage with the child’s mother, dies before the baby is born. In this situation, legal proceedings are necessary when there is a so-called dispute about the law in legal practice.

The second possible situation is related to the establishment of a fact of legal significance. If the deceased father recognized himself as such during his lifetime, the establishment of paternity is regulated by Article 50 of the Russian Family Code. For this category of cases, the legislator provides a special procedure for legal proceedings.

Let us consider both procedures provided for the posthumous establishment of paternity in more detail.

Claim proceedings

Claim proceedings aimed at posthumous establishment of paternity, when there is a dispute about the right, are initiated by the court upon the appropriate application of the mother, guardian (trustee) of the child, upon the claim of a citizen or institution in whose dependency the minor lives, as well as upon the claim of the child himself who put forward the corresponding demand after he reaches adulthood.

When considering claims, the judge is obliged to study and take into account any evidence presented by the applicant that reliably certifies the origin of the child from a deceased citizen. The process of establishing paternity after the death of the actual father, if the latter during his lifetime did not recognize the fact of having a child, is practically no different from the judicial procedure prescribed during the life of the father.

The main difference is the impossibility of hearing the opinion and arguments of a citizen who does not want to recognize paternity, as well as the lack of the opportunity to conduct a genetic examination that most reliably proves the presence of family ties.

Therefore, the judge is guided only by the presented documentary, material and other evidence.

Special procedure for establishing the fact of recognition of paternity

As already mentioned, a special procedure for legal proceedings is applied when the child’s father died before his death, but the parties (the child’s parents) did not document this. In this case, the judge prescribes a judicial procedure, called in legal practice judicial determination of the fact of recognition of paternity.

Based on the provisions of Article 50 of the Russian Family Code, it is possible to establish the fact of recognition of paternity if three mandatory conditions are met:

• the deceased father had to acknowledge during his lifetime the fact that the child was descended from him, which could be confirmed by legally permitted evidence;
• the child’s mother and the deceased citizen did not register family relationships;
• the fact of recognized paternity is established in the courts according to the rules determined by civil procedural legislation.

The fact of recognition of paternity by the deceased person is established by the judge according to the rules of special legal proceedings after a comprehensive check of the presented data, with the condition that there is no dispute about the right.

A dispute about the right arises when there are some interested parties other than the child and his mother, for example, heirs. If there are no such interested parties, a special procedure may be applied.

When, when filing an application by an interested party or in the process of considering a case through a special procedure, the court determines the existence of some dispute about the law, the application is left unconsidered. In this situation, the judge issues a ruling leaving the application to the court without consideration. The determination must contain explanations to the applicant and other interested parties about their right to resolve the controversial situation through legal proceedings (Part 3, Article 263 of the Code of Civil Procedure of the Russian Federation).

It is unacceptable to use special proceedings if there are disputes about the inheritance left. In this case, interested parties need to draw up a claim defending the interests of the child as an heir, and this case will be considered through the general procedure for litigation. The claim is brought against other heirs, who will act as defendants in the case. When considering such a case, the judge is obliged to determine the fact of paternity of the testator and resolve the issue of the existence of legal rights to the inheritance left by the deceased father of the child, whose interests are protected by the corresponding claim.

The application for the need for posthumous establishment of the fact of paternity of legal significance shall indicate the purpose for which the applicant is trying to establish the relevant fact. Also in the application in support of the requirements, you must describe the attached evidence of paternity. In addition, even evidence is indicated that certifies the impossibility of the applicant to provide proper documentation or the impossibility of restoring any previously lost documents proving the fact of paternity.

Procedural legislation defines a number of circumstances that must be proven when applying to the courts with a similar application for posthumous establishment of paternity:

• death of the actual father of the child, who recognized himself as such during his lifetime (confirmed by a death certificate);
• the absence of officially registered family relations between the deceased citizen and the child’s mother (to confirm this fact, a certificate from the registry office and a child’s birth certificate are attached, where there is no corresponding entry about the father);
• the fact that the deceased person recognized himself as the actual father before his death.

The most difficult of all the above circumstances will be proving the fact that the deceased citizen recognized his paternity. To compile an evidence base you can use:

• written evidence in which the deceased mentioned having a child;
• testimony of witnesses (relatives, acquaintances and other people);
• photographs, video evidence. A common photograph of the father and the child can also serve as evidence of acknowledgment of paternity by the deceased during his lifetime. And although photographs are not enough for the court to make a positive decision, they will be assessed by the judge in conjunction with other evidence presented, and, accordingly, such photographs will not be superfluous;
• other evidence capable of confirming that the deceased citizen recognized his actual child during his lifetime.

Before the tragic event, mothers raising children on their own do not think about how to establish paternity after the death of the father in court. And only when a man passes away do they begin to act. Everything is decided by the court.

The consideration of a case by a judicial organization is influenced by a number of circumstances and factors. But one of them is mandatory for any type of business; the mother and father of the child must not live in an officially registered marriage. Otherwise, establishing paternity loses all meaning; in an official marriage, the man is automatically considered the father of the child, as indicated by information from the child’s birth certificate.

Conditions for starting the process

The case for posthumous paternity establishment begins if one of two aspects is present. Either the father fully recognized the baby as his own, was going to confirm this officially, but simply did not have time to do this, because he did not intend to die. Either the man did not know at all that he had a child or was not going to acknowledge him. In the first case, the fact of the birth of a child from a deceased man is simply established, from a legal point of view. In the second, the legal dispute must be correctly resolved. Establishment of paternity after the death of the father is carried out exclusively in court, in accordance with Article 50 of the Family Code of Russia.

What type of production will you go through?

If the reason for going to court was the registration of a survivor's pension, as well as other state benefits and benefits, the case is resolved within the framework of special proceedings. The reason for applying to a judicial organization must be indicated in the application in order to know exactly how to establish paternity after the death of the father.

The inheritance rights of the child are protected within the framework of the lawsuit, as a dispute arises about the rights regarding the inheritance of the property of the deceased. And if in the first case we are talking about the submission of an application by the mother of an unrecognized child to the court at her place of residence, then in the second the matter is somewhat more complicated. It will be opened at the place of residence of the defendants (in the first case, they simply do not exist). Alternatively, it can be accepted at the place where the inheritance was opened. You can file such a claim at any time after it becomes known about the death of the baby’s father. There is no such concept as a “limitation period” in this matter.

Possible reasons for going to court to establish paternity in this case

They usually want to recognize a specific deceased man as the father for the following reasons:

1. In order for a minor child to be able to receive a survivor’s pension and other payments, as well as benefits from the state.
2. To make appropriate amendments to the child’s birth documents so that he is considered to come from a complete family and is not “fatherless.”
3. To receive your share of the inheritance, if any.
4. If there was a violent death, you can count on receiving additional compensation.

Each reason is considered individually. The type of proceedings, timing, complexity of the process, it all depends on the reason why the mother or another person who has the right to appeal to a judicial organization on this issue carried it out.

In addition to the baby’s mother, there is a whole list of persons who have the right to file a claim in this case, regardless of the reason for applying to a judicial organization. It includes:

• guardians or trustees of the child;
• representatives of the guardianship and trusteeship service or the administration of the institution where the minor is located if the mother was deprived of parental rights or also died;
• any relative or person who has a dependent child;
• the child himself upon reaching adulthood.

Basically, the case concerns the establishment of a direct relationship between a man and a child, so it does not matter which of the people who raise and educate the minor goes to court.

Documents that will be needed to consider the case

The statement of claim itself to establish the paternity of the deceased citizen should be written correctly. A sample of such a document can be found in the court office. It must be accompanied by:

• a copy of the death certificate of the child’s biological father;
• a certificate from the Civil Registry Office confirming the absence of official registration of marriage with him;
• a copy of the baby’s birth certificate (provided that he is not the one filing the claim);
• applicant's passport;
• a certificate from the housing and communal services, which confirms the joint residence of the child’s parents. For example, this could be a document on temporary or permanent registration or on family composition;
• document confirming payment of state duty.

The court may require other documents that will be directly related to the case.

This is a simplified procedure for establishing paternity after the death of the man who actually is. The defendant is not present when it is carried out, even the statement is considered not a claim, but an ordinary one. The person who files it is called the applicant, not the plaintiff.

If the court sees signs of litigation in the case, the application will be rejected. The process can become a lawsuit only if there are other interested private parties in the case, for example, relatives of the deceased who are applicants for inheritance.

Special proceedings are opened in the presence of the following circumstances:

1. Lack of official registration of marriage between the baby’s parents.
2. The fact of the death of a citizen who became the putative father.
3. His lifetime recognition of himself as the biological father of the child.
4. An appropriate purpose for establishing posthumous paternity.
5. There are no private stakeholders, and therefore no disputed law.

The latter is especially important, otherwise the case will be considered as a lawsuit in the presence of any applicants, even grandfathers and cousins.

In the “header”, the upper right corner of the application, you should indicate the full name of the judicial organization to which you are applying to establish paternity after the death of the putative father. The full personal and contact details of the applicant (or plaintiff in the event of initiation of claim proceedings), as well as the details of all possible interested candidates, are also indicated there. They can be both individuals (relatives of the deceased, heirs of any order) and legal entities (Pension Fund, Tax Inspectorate, body for the protection of the rights of minors, an institution in which a child is raised in the absence of a mother or guardians, and other organizations).

Next, follow the preliminary circumstances of the case. This is a laconic but detailed story about the history of acquaintance and its continuation. In particular, questions are raised about the duration of the relationship, the presence of a common household, budget, a man’s attitude towards the birth of a child, and so on.

Next, it is necessary to list on what basis a man can generally be considered the father of a baby. This is the absence of other candidates for biological fathers for a certain period, living together during pregnancy from the very beginning and other circumstances.

The very requirement is put forward to establish the paternity of a certain man in an official manner in order for the child to receive everything that is due to him within the framework of the law. In this case, you should definitely refer to certain articles and orders of the codes confirming this requirement.

At the end, the documents that accompany the application and a list of evidence that can confirm that the deceased was indeed the biological father of the child are listed. The application is completed by affixing the date and personal signature.

Genetic testing, of course, would be the most reliable way to prove paternity. But to carry it out, biological material is required from both sides, father and child, which in this case is impossible, unless the person concerned took care of taking blood before the burial of the common-law husband. Therefore, other evidence must be provided.

These could be letters from a man to a woman, where he mentions the baby, telegrams, postcards, a personal diary, diary entries, notes to the maternity hospital, applications to preschool and school institutions. When a handwriting examination is carried out and a specialist confirms that the written evidence is indeed written in the hand of the child’s biological father, it will be taken into account.

Electronic entries from email, instant messengers, social networks, a personal blog or diary can also help. SMS messages on your phone will also be counted. It doesn’t matter whether the man wrote about the child to his mother or told his grandmother or best friend about his presence. The main thing is to accurately link the account to the baby’s biological father. But, if you consider that at the moment almost all accounts are linked to the number of a mobile operator, there should not be any problems with this. A corresponding request is made to the operator and, based on its results, the binding is confirmed. The fact of transferring sums of money, as well as making large and expensive purchases, especially those that directly affect the child himself, for example, a crib or stroller, also count.

Testimony from neighbors, relatives, friends, and acquaintances can also help. If they confirm the facts of living together during pregnancy and after the birth of the baby, maintaining a joint budget and household, and participating in his upbringing, it will be quite possible for the court to prove paternity outside of an official marriage after the death of the father. Photo, audio and video materials can also serve well.

Indirect evidence can be the presence of a common genetic disease, as well as appearance features. For example, the presence of a sixth finger on a hand or toe, or a birthmark of a certain shape on the same area of ​​the body as the deceased. It should be remembered that only a combination of material evidence and witness testimony can lead to a successful outcome of the case. Then the question of whether paternity can be established after the death of the father will be resolved positively.

Features and nuances of the case

The paperwork is initiated only with the consent of the child himself, since paternity will be established in relation to him. If the child is incapacitated (under 10 years old, does not correspond to physical and intellectual development), consent is given by the guardianship and trusteeship authority or the person who is responsible for the actions of the minor.

If there is at least some biological material (hair, nails) from the deceased father, a genetic examination (DNA) can be performed. Sometimes it is carried out with the direct participation of the alleged father’s closest relatives. In extreme cases, even exhumation is possible. It is paid by the one who is the initiator. The participation of closest relatives in the examination is purely voluntary.

Any interested parties who were listed in the application to establish paternity in court after the death of the biological father can actively participate in the case. They have the right to challenge facts, specify and clarify circumstances, present their own evidence, file applications to appeal a court decision and perform other actions that do not contradict the law and can also help in establishing the truth.

If there is a will, the child can claim an obligatory part of the inheritance as a first-priority heir, even if he is not mentioned there. Of course, this is only possible with a positive court decision in the case of establishing posthumous paternity. Also, the mother will be able to give the minor the surname and patronymic of the recognized father. Sometimes establishing paternity is practiced even after the death of a child. Then his mother becomes the heir.

The costs of conducting this case are divided into mandatory and additional. The first includes the state fee and the cost of registering the fact of recognition of paternity with the Civil Registry Office. The second is the cost of conducting various examinations; work of a lawyer if he was hired as a consultant or representative in court; as well as obtaining data that can prove the correctness of any of the interested parties involved in the process. Mandatory costs are divided equally between all parties to the case, and additional costs are paid by the party that lost the case. This must be indicated in the court decision.

If a survivor's pension is assigned, you should know that, according to the instructions, it consists of two components - basic and additional (insurance). The first of them is a certain amount, which does not change due to the number of dependents. And the second is divided by this same amount. But it cannot be less than the previously assigned share.

Establishing paternity after the death of the biological father is a rather complex and lengthy process. This statement is especially true in the case of a lawsuit. But it’s still worth trying to initiate it. You can engage an experienced lawyer who successfully works in family law to develop a step-by-step plan. Then the process will be easier, and the chances of its successful completion will be much greater.