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.
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: the 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.
External signs
This method of confirming or disproving paternity is not accurate or reliable. Relationship can be indirectly proven by facial features, eye color, hair, and skin tone.
Genetic appearance traits vary. And there is no one hundred percent chance that the baby will have the same ones as the parents.
Children may inherit traits from grandparents or other close relatives. Therefore, it is worth comparing the child and photographs of the potential biological father and his relatives.
There are also many people in the world who are identical in appearance. Moreover, the verification confirms that they have no family ties, even distant ones.
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.
Conception date
When a woman has had several partners during one menstrual period, it is worth trying to find out the likely date of conception.
However, sperm live in a woman's vagina for up to 5 days. Consequently, pregnancy can occur after a certain number of days.
Then the father of the future newborn will be a man who was a couple of days before the expected conception. The date of fertilization cannot be determined precisely. Even if a woman has regular periods.
Please note: determining relationship by the estimated date of conception is only possible in cases where the woman has not had sexual contact with several partners within a period of up to 5 days.
In this situation, modern ultrasound machines will not help. They will not indicate an unmistakable confirmation of the day of conception.
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.
Blood type and Rh factor
An excellent method for eliminating the possibility of paternity. When proving, the error is high.
You can use this method only after the baby is born. This method uses tables that indicate the blood groups of both parents in columns and rows.
At their intersection we get the options for the blood type that the child will have. Typically, four blood groups are used for classification. For example, if the parents have the first one, then the children will have the same one.
But when mom has a third, and dad has a second, the child can be born with any group - from the first to the fourth.
There are two groups in the Rh system:
- Rh negative (Rh-);
- Rh positive (Rh+).
Determining the presence/absence of antigens on the surface of red blood cells indicates the difference between the groups. More than 80% of people are carriers of a positive Rh factor. The rest are Rh negative.
It is important to know: the only option confirming that a man is not the biological father appears at the moment when a baby is born to Rh-negative parents with a positive one.
A mother and father with a positive Rh factor can have a baby with either a positive or a negative parameter. And parents with a negative Rh factor will always have children with a Rh negative factor.
Genetic diseases
Genetically, parents pass on to their baby not only their external characteristics and character, but also a number of genetic diseases.
They are caused by mutations in the gene. If the disease manifested in the baby was not observed in the mother’s family, and the potential father or his closest blood relatives have this disease, then this fact is an indirect confirmation of paternity.
Good to know: only DNA testing can determine the degree of relationship with 99.9% accuracy. Other methods do not have sufficient truth. They should be used in combination with other methods.
How to determine paternity using DNA, watch the following video:
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.
If the parents are not married
According to family law, if a couple has registered their relationship, the woman can register the child with her husband without any problems. And then the waiver of parental rights is carried out using another procedure. But if they are not married (in a civil marriage), the man must recognize his paternity on his own.
Usually, for this, both parents, after the birth of the baby, go to the registry office and write a corresponding application. Then the man will be officially registered as the father of the newborn. In some cases, only the father of the child can apply:
- if she died during childbirth;
- the mother has mental disorders due to which she is not able to bear responsibility for the child;
- the woman was deprived of parental rights to the baby;
- the mother is unable to provide the child with suitable living conditions.
In the absence of registration of marriage between parents, a man can recognize his paternity only with the permission of the guardianship authority. If the guardianship authority refuses to carry out the procedure, you can go to court for help.
How to establish a family connection with a person to receive an inheritance through the court?
To receive an inheritance that is divided between the relatives of the deceased, the applicant must provide the notary with evidence that he is a relative. Sometimes a situation may arise when there are no supporting documents: for example, if they are lost. To establish kinship and subsequent acceptance of inheritance, you can file a claim in court .
First, try to find or restore the documents yourself by contacting, for example, the civil registry office. The court will only accept the application if there is no other way to prove the relationship.
Who can apply?
Family relationships can be established between people who have a common ancestor. So, you can prove family relationships with parents, sisters or brothers, grandparents, aunts or uncles, and so on. It is impossible to establish a relationship with a husband or wife, stepfather and stepmother, stepsons and stepdaughters.
Where to contact?
The applicant must submit the application and the collected package of documents to the district court at his place of residence.
How to fill out a claim?
The application to establish a family relationship is filled out in free form:
- In the header of the application, you must indicate the name of the court, the full name of the applicant and the interested person (usually a notary involved in the division of the inheritance).
- In the text of the application, indicate the expected degree of relationship, information you have about relatives, evidence of relationship that was collected and the reasons why establishing the relationship was needed.
For example, you can compose the text like this: I, (insert your name) and (insert the name of a relative) are (indicate the degree of relationship). I do not have documents confirming our relationship for the reason (specify the reason). It is not possible to restore documents independently through the civil registry office for the reason (specify the reason).I can confirm our family relationship with the following facts (list all available documents and evidence, including the names of witnesses). The need to establish the fact of relationship arose for a reason (specify the reason).
- Next, formulate a request to the court to establish a relationship based on the evidence provided. For example: Please establish that I (insert your name) am (indicate the degree of relationship and the name of the relative).
- Next, list the attached documents, indicate the date of the application and signature.
We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:
8 (800) 350-29-87
What documents can I provide?
The court may consider the following documents as evidence of relationship:
- birth, marriage or divorce certificates;
- certificate of name change;
- certificates of family composition;
- references from archives;
- extracts from the house register;
- documents from work;
- results of genetic testing (we talked about genetic testing here);
- Photo and video;
- testimony of other relatives, neighbors, colleagues, etc.;
- letters, telegrams, SMS messages and other types of correspondence.
Costs and processing time
When filing an application with the court, you must pay a state fee. Its size is determined by the Tax Code of the Russian Federation (clause 3, clause 1, article 333.19) and for 2021. is 300 rubles. for individuals. In general, on the basis of Art. 154 of the Code of Civil Procedure of the Russian Federation, the period for consideration of the case is two months from the filing of the application. If there is a need to find additional evidence or clarify those provided, this period may be extended.
Alimony
Alimony payments usually become the cause of a claim in most cases. The most common claims are against alleged fathers who either did not know about their paternity or refuse to acknowledge it. There are also counterclaims from men who were awarded alimony incorrectly.
The right to alimony is, first of all, the right of the child, which is why the state protects it with a powerful legislative framework. Proving paternity of a young child is easier for the plaintiff-mother and more difficult for the plaintiff-father.
The court's decision to award alimony payments to the child (sometimes to the child and mother) ends most processes where paternity on the part of a man is denied. Failure to pay alimony is punishable by fines and restrictive sanctions (for example, you will not be allowed to cross the border).
Features of genetic testing
Genetic examination regarding the origin of children in cases of challenging paternity answers the following questions (clause 84.12 of the Procedure, approved by Order of the Ministry of Health and Social Development of Russia dated May 12, 2010 No. 346 n
):
• the paternity of this person in relation to this child is excluded or not excluded;
• if paternity is not excluded, then what is the probability that the result obtained is not the result of a random coincidence of individualizing characteristics of unrelated persons.
To conduct an examination, written consent of the persons from whom samples are taken for research is required. In certain cases, such consent is given by the legal representatives of the persons in respect of whom the examination is assigned. For example, if blood samples are taken from minors under the age of 15 years, from incompetent people (Parts 2, 3, Article 28 of the Federal Law of May 31, 2001 No. 73-FZ
).
When conducting a genetic examination, samples of blood or other materials are studied: saliva, smears (scrapings) from the oral mucosa. A standard test involves taking blood from the child, his mother and the putative father. Two medical professionals must be present during the sample collection procedure.
If the alleged father is deceased, then hair, nails, bones, teeth and muscles can be used as samples for research. An examination of distant kinship is also possible, in which samples from true children or other relatives of the deceased are examined (Part 1, Article 10 of the Federal Law of May 31, 2001 No. 73-FZ
;
clause 10, pp. 84.2, 84.4, 84.12.1 Procedure, approved. Order of the Ministry of Health and Social Development of Russia dated May 12, 2010 No. 346 n
).
The expert's conclusion must contain a detailed description of the research conducted, the conclusions drawn as a result and answers to the questions posed by the court (Part 2 of Article 25 of the Federal Law of May 31, 2001 No. 73-FZ
;
Part 2 Art. 86 Code of Civil Procedure of the Russian Federation
).
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.
DNA test: is it worth paying?
With the development of science, methods have emerged that greatly simplify the determination of kinship. The DNA test in this case is one of the most popular, but not the cheapest. The cost of a standard analysis reaches 10–40 thousand rubles. The final price depends on the urgency and other nuances. If the test is ordered by the court, it is paid for from the budget.
If the test is done while the woman is still pregnant (this procedure is quite dangerous for the fetus), then the cost of the analysis doubles. However, many fathers are willing to spend money to finally find out their relationship with their child.
It is known that during the analysis, a specialist compares the set of genes of a minor with the genes of the intended parent. For the determination, biological material from both subjects is taken (usually saliva or hair, but there may be blood or skin particles). If the result is positive, the analysis shows 99.9% probable similarity. A 100% guarantee is not given, but this is quite enough.
The good thing about a DNA test is that even if a parent dies, paternity can be established. For example, compare the genes of a child and the closest relatives of the deceased. Such an analysis will be accepted in court without any problems.
