There are situations when a child is born to an unregistered couple, but the father soon dies or is killed without having time to recognize the relationship.
What should a woman do in such cases? After all, if the relationship is not confirmed, then the child simply will not be able to receive the required payments or a share in the inheritance.
The law of the Russian Federation states that a child born out of wedlock is endowed with equal rights to receive the paternal inheritance, as well as one born in an official marriage.
This article discusses a procedure called establishing paternity after death, the claim is considered directly in court.
Procedure for establishing paternity after death.
The fact of establishing paternity after the death of the father is carried out in a special manner.
This means that the trial is characterized by the following:
- the plaintiff protects his interests;
- the defendant and third parties do not participate in the hearings;
- it is impossible to refuse the petition, accept it, etc.
The petition is submitted at the place of residence of the plaintiff. Submitting an application is only possible if the following conditions are met:
- The couple did not officially register their relationship.
- The man recognized family ties with the child, but did not have time to register them.
The plaintiff must provide substantial evidence that the deceased was the father.
The petition submitted to the judicial authorities must contain the following information:
- information about the applicant;
- the name of the court department where the claim is filed;
- a brief description of all the circumstances of the case;
- evidence of relationship;
- list of applications;
- requirements.
In addition to the petition, the plaintiff must prepare the following documents:
- copy of ID;
- document confirming payment of state duty (350 rubles);
- child metric;
- the man's death certificate;
- evidence of relationship, etc.
As arguments about the actual relationship of the minor and the deceased father, the following can be presented:
- DNA research (the procedure is possible if there are close relatives of the deceased);
- letters, correspondence on social networks, telegrams, etc.;
- witness's testimonies.
Relatives, neighbors, and family acquaintances may be called as witnesses to the trial. They must confirm the relationship between the child’s parents and family ties.
Legislative acts do not establish time limits when paternity can be established. Therefore, a claim can be filed at any time.
What is this procedure?
The procedure for establishing paternity is a whole complex of legal and medical operations that allows you to establish the relationship between a man and his child and prepare papers stating that they are each other’s father and son/daughter. In the event that the father is still alive, either a medical examination or independent recognition by the father of his child is sufficient to carry it out. But when the father has already died, a comprehensive investigation is required.
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If the deceased did not recognize the relationship.
In the case when a man did not confirm his relationship during his lifetime, the procedure for establishing paternity after the death of his father will differ from when he did not deny his status.
In such a situation, you will need to prove your right in court, and not just protect documents.
The most important point is to provide strong evidence that the man is a relative of the child.
One of the most proven methods is DNA testing. However, there is plenty of other evidence.
Among them are correspondence, personal diaries of the deceased, testimony of relatives, etc.
If the court decision is positive, you must visit the registry office to obtain a new document, where the man in relation to whom family ties will be established will be entered. The document is issued on the day of application.
If the man did not deny the fact of paternity until the moment of death and participated in the life of the minor, then the lawsuit is considered in special proceedings.
Its main advantages are as follows:
- no need for legal assistance;
- does not take much time;
- no genetic testing required.
In such a situation, the plaintiff must prove the following facts in court:
- birth of a minor;
- death of a potential father;
- lack of an officially registered marriage;
- evidence of recognition by the child's father.
When initiating special proceedings, the plaintiff must have no disputes about law. When the applicant claims the property of the deceased or other material assets, the court returns the petition.
If there is a dispute about the right, you will need to file a claim in accordance with the general procedure.
Establishing paternity by DNA: cost, through court, price.
Case review process
Establishment of paternity is carried out by the court and is carried out in two ways:
- The man recognized the child, but during his life he did not legally formalize paternity.
- The biological parent did not want to acknowledge the children or his death occurred before their birth.
For both cases, a prerequisite for going to court must be the absence of legal marital relations between the parents.
It is also important to note that establishing contact with the father is carried out for both minors and adult children.
The court will consider the case in special proceedings in accordance with Article 50 of the Family Code. The key factor for consideration under this procedure is voluntary paternity - recognition of the child as having died while alive, but not having documented this fact in the manner prescribed by law.
Recognition of family ties in special proceedings presupposes a simplified procedure for consideration. The plaintiff must provide the court with evidence of the parent’s participation in raising the children and financial assistance to the mother. In addition, the court accepts documents confirming cohabitation. In court, it is necessary to prove the facts of the birth of the child and the death of the father. For this purpose, appropriate evidence is provided.
The procedure for this procedure takes little time, and genetic analysis is not carried out under this procedure.
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During the consideration of the case, the court will take into account the opinions of the relatives of the deceased. The plaintiff should first talk to them and resolve the dispute. If the negotiations are successfully completed, the verdict will be rendered during special proceedings, that is, in an expedited manner. If there are still interested people, the judge will not recognize the right to paternity until the dispute is resolved. The consideration of the case will take place in the ordinary course of litigation. The defendants will be persons who do not share the plaintiff’s opinion.
A sample statement of claim to establish paternity after the death of the father includes the column “interested person.” It is filled in with the names of people (heirs, close relatives, other children) or the names of organizations (pension fund, social security authorities) that can change the course of the proceedings.
A person can die suddenly, which is why many plaintiffs have difficulty gathering evidence. In judicial practice, there are cases when mothers bring various checks, photographs, correspondence and videos to prove the deceased’s right to paternity. In addition to the evidence creating a picture that the child had a father, it is necessary to provide testimony from witnesses. Their role can be played by the following groups of people:
- Friends;
- co-workers;
- colleagues;
- relatives of the deceased and the mother of his children;
- neighbours.
The forms presented as an example application usually do not indicate that witnesses should not be interested parties, but it is precisely this nuance that is a common mistake when filling out. Only the names of eyewitnesses of the deceased person’s care for the child are entered in this column. During the hearing, a question will likely be asked about the reason why the deceased did not bother to file a claim in court to obtain parental rights.
When preparing an application, it is important to decide whether to give the child the father’s last name and first name. On the one hand, the memory of the deceased parent will remain, and on the other, the psychological trauma may worsen. Experts advise talking to your baby in advance and making a decision together.
After writing an application to determine the father of the child in legal proceedings, you should contact the court department at your place of residence. If the documents are filled out correctly, irrefutable evidence is provided and disputes with interested parties are resolved, the verdict will be rendered in 1 meeting. The plaintiff usually does not have to pay a state fee, since the essence of the appeal is to protect the rights and interests of the child.
The application will be considered within 2 months. The court decision will come into force 30 days from the date of announcement. To document paternity, the plaintiff will have to contact the registry office (civil registry office).
A child who has reached the age of 18 can act as a plaintiff in court. The proceedings will be held in accordance with Article 50 of the RF IC. A certain group of people can protect the rights of a minor child whose father has died:
- mother;
- representative of the guardianship authorities;
- person who supports the child.
Proceedings to establish paternity can take place according to a simplified and ordinary scenario. The first case is characterized by a situation where a man recognized the child, but did not legalize the marriage with his mother. This arrangement improves the situation. The plaintiff will have to prepare a package of documents to go to court. If there are no complaints from interested parties, the proceedings will not drag on for long.
If the alleged biological father did not accept the child and was not married to his mother, then the legal proceedings will take place as usual. The statement of claim will indicate that the deceased was a parent, although he denied this fact. To obtain a positive result for yourself, you will need to collect irrefutable evidence to the contrary:
- DNA test results;
- videos and photos demonstrating the relationship between the deceased and the child’s mother;
- correspondence (letters, SMS);
- bank statements indicating receipt of funds from the deceased;
- witness statements.
When a child whose father has died becomes incapacitated or reaches adulthood, the situation changes. In the first case, only the guardianship authorities or official representatives can approve this petition, and in the second - he himself. Persons who protect the rights of children and adolescents under 18 years of age make decisions independently if it benefits their wards.
The absence of interested parties, that is, people willing to act as defendants, becomes a reason for summary proceedings. When drawing up an application, it is important for the plaintiff to fill out the following items:
- Full name and address where the plaintiff lives;
- Full names and addresses of interested people and organizations;
- details relevant to the case;
- strong evidence of the relationship between the deceased man and the child;
- petition;
- list of documentation provided along with the application;
- date of writing.
Particular attention should be paid to details. It is advisable to indicate the period of cohabitation and pregnancy, describe everything that may indicate the man’s relationship with the child and his mother. At the bottom there must be the signature of the plaintiff and the date the application was filled out.
Additionally, you must submit a certificate of payment of the state duty or exemption from it and photocopies of documents (birth certificate of the child, passport of the representative). During the hearing, the plaintiff will have to prove that the deceased man was the common-law husband of the child’s mother and considered himself his parent.
The ground for a dispute arises if the man was not officially married to the woman and did not recognize her children. The application is prepared similarly to the simplified version of the proceedings. The list of additional documents also does not change.
Statement of claim to establish paternity after the death of the father.
Claim proceedings begin if the man did not recognize himself as the father or died before his birth.
To obtain the right to inherit or receive a survivor's pension, you will need to fill out an application in accordance with the requirements for such documents.
It indicates the purpose of filing the petition and the plaintiff’s demands.
Before submitting the application, you must pay a state fee of 350 rubles.
Genetic examination is prescribed in the following cases:
- there are very few arguments confirming the relationship of the deceased with the child to make a court decision;
- the defendant’s relatives deny paternity and insist on carrying out the procedure;
- the applicant himself proposes to conduct research.
It should be noted that undergoing the genetic procedure is voluntary, therefore the other party has the right to refuse to participate in it.
