Does an illegitimate child have the right to inheritance?

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The institution of marriage in our society retains its position. Therefore, the concept of “illegitimate children” carries some kind of vicious meaning.

In this regard, there is a belief that children born outside of a formal marriage have fewer rights than those born within marriage. In particular, they are limited or deprived of inheritance rights.

Is it so?

What does "illegitimate child" mean?

Cohabitation between a man and a woman can be short-term or long-term.
During their time together, a couple usually has children. An illegitimate child is a baby born to a man and woman who are not in a legally registered marriage.

Quite often, men agree to register the child in their name - this is how information about the father appears on the birth certificate of their son or daughter. In fact, such a union is identical to a legal family: there is a father, a mother, a common life, and both parents are indicated in the deed record. The only difference is the lack of state registration of marriage.

However, often fathers categorically refuse to go to the registry office and acknowledge their paternity. Especially if the cohabitation was short-term, and the man does not intend to start a family with the mother of the newborn. Information about the father is usually entered into the birth certificate from the words of the mother - this is a simple formality in order to give the child a middle name.

If paternity is not established and the biological father dies, the child cannot inherit his property .
However, this does not mean that there is no way out - the problem can be resolved through the courts. The mother will have to file a claim to establish paternity (posthumously). From time to time, such issues are resolved during the lifetime of the parent. For example, in order to subsequently or simultaneously collect child support. If there is a judicial act, the heir will be able to unhinderedly assume his rights.

Inheritance after mother

Children born outside of official marriage, whose mother is known, always inherit after her. Maternity is usually determined by documents drawn up in the maternity hospital:

• individual cards for pregnant women and newborns;
• birth history.

If the woman was not initially included in the baby’s birth certificate and the registry office book, the procedure is also carried out by establishing the biological origin of the child through the court.

Maternity is confirmed based on witness testimony, DNA testing and other evidence. Then the court decision is submitted to the notary for inclusion in the circle of successors.

We remind you that even if you thoroughly study all the data that is in the public domain, this will not replace the experience of professional lawyers! To get a detailed free consultation and resolve your issue as reliably as possible, you can contact specialists through the online form .

Illegitimate children and inheritance law

Family and civil legislation does not divide children based on whether they were born in marriage or not - they have the same rights and obligations, including in the area of ​​inheritance.

According to Article 1142 of the Civil Code, the legal primary heirs are the children of the testator, as well as the parents and husband/wife.

However, not a word is said about which children:

• those born in and out of wedlock;
• relatives and adopted children;
• adults and minors;
• living together or separately with the testator.

They all have equal inheritance rights. Including children whose parents were deprived of parental rights.

The only condition for children to inherit after the death of their parents is that parentage (paternity and maternity) must be recognized, established or proven. What does it mean? Children claiming an inheritance must present to the notary proof of their relationship with their parents - a birth or adoption certificate, as well as a court decision establishing paternity.

Does a child born out of wedlock have the right to inheritance?

The law does not make any distinction between natural, adopted or illegitimate children - in accordance with Art. 1142 of the Civil Code of the Russian Federation, children are among the heirs of the first priority and inherit the property of the deceased by law.

It does not matter at all whether the child was born in marriage or is considered illegitimate - inheritance occurs on an equal basis by all children.

The basis for inheritance by an illegitimate son or daughter is a birth/adoption certificate, i.e. fact of relationship with a deceased person. If the father refuses to go to the registry office and enter his name on the child’s certificate, the legal fact will be established in court. The proceedings can be initiated by the mother, guardian or person who is maintaining the child. A child can independently go to court after reaching the age of 18.

How do illegitimate children inherit?

There are some nuances regarding illegitimate children. Much depends on how information about the child’s parents was filled out in the civil registry office books and birth certificate.

If the father was entered there according to the words of the unmarried mother, and the father did not recognize the child, the procedure for obtaining an inheritance becomes more complicated. In this case, the right to the property of the deceased is proven through confirmation of paternity in court.

If an entry in the civil register was made in the presence and with the consent of both unmarried parents, the child has the undisputed right to inherit.

In fact, this means that the father recognized his daughter or son, and confirmation of this in court is not required.

How does this happen

Each child has a birth certificate in which his mother and father are registered. If a specific person is indicated in the “father” column, then there will be no problems with establishing paternity, since the man has already recognized his responsibilities at birth. Then it does not matter whether the parents were married or the relationship was extramarital. This child is entitled to his share of the deceased father's estate.

If there is a dash in the “father” column in the document, then difficulties may arise. Since we are talking about a deceased person, there is no question of voluntary recognition of paternity. It will be necessary to prove this fact in court.

Establishing paternity

If there are practically no difficulties in establishing maternity, then the issue of establishing paternity is raised much more often. It is no coincidence that the Family Code of the Russian Federation determines the procedure for establishing paternity.

Through the registry office

The first option is voluntary (out-of-court).

There is nothing complicated, provided that the man is not against establishing paternity:

1. Arrange to visit the nearest registry office together.
2. Write a statement to establish paternity.
3. Provide a passport, a certificate from the maternity hospital and a receipt for payment of the state fee.
4. Receive a birth certificate for your son/daughter with information about the father.

The deadline for submitting an application and documents to the registry office is no later than 30 days from the date of birth of the baby.

Judicial order

The second method is forced (judicial).

If the parents cannot find a common language or the child’s father has died, paternity is established through the court. The baby's mother will need to file an application with the court. The hearing of the case takes place in a special or claim procedure - depending on the actions of the father:

• if he is alive, disputes cannot be avoided, which means the case will go through litigation;
• if a man died, but did not have time to recognize paternity during his lifetime, a regular application to establish paternity is submitted (Article 264 of the Code of Civil Procedure of the Russian Federation).

It is important to remember that the interests of the child come first. If a mother wants to provide a happy future for her baby, it is in her interests to file for paternity and achieve the right to inheritance. At the same time, you can oblige the other parent to pay child support.

Procedure for the mother of the child:

1. Prepare evidence, interview witnesses.
2. File an application or claim to establish paternity.
3. Pay the state fee (300 rubles), take a receipt.
4. Contact the court office of the district (city) court, register the appeal, and receive a coupon for the transfer of documents.
5. Wait for a summons to court.
6. Request a genetic examination.
7. Pay for DNA testing and provide biological materials of the child.
8. Obtain an expert opinion and attend rehearings in court.
9. Hear the verdict of the district court, receive a writ of execution or an extract from the court decision.
10. Collect legal costs from the defendant father (if the latter has not died).
11. Complete the acknowledgment of paternity at the civil registry office.

Proof

Unsubstantiated statements are unacceptable - the plaintiff or applicant attaches documents confirming the requirements. Most often, a genetic examination is carried out based on a DNA test. The court may appoint it at the request of one of the parties to the trial (Article 166 of the Code of Civil Procedure of the Russian Federation).

Additional evidence:

1. Correspondence between father and child - letters, e-mail, postcards, video calls, etc.
2. Parents living together is confirmed by an extract from the house register.
3. Testimony - it is advisable to involve uninterested persons (mutual friends, neighbors, work colleagues).
4. Photos, video materials, audio recordings.
5. Bank account statements - about the transfer of money for child support.

Is a court decision a final document? No. A procedural act serves as an interim legal document. The plaintiff will need to contact the civil registry office (registry office) and obtain a birth certificate. The basis for its issuance is a court decision.

Posthumous establishment of paternity

The circumstances preceding posthumous paternity registration may be as follows:

1. The parent recognized the child and intended to raise him, but did not have time to contact the registry office. In this case, the court establishes the fact of recognition of paternity in accordance with Art. 50 IC RF.
2. The man died before the baby was born or did not recognize the relationship. Then paternity is established in accordance with Art. 49 RF IC.

It is necessary to apply to the court with an application drawn up in accordance with Art. 131 Code of Civil Procedure of the Russian Federation. The document is submitted at the place of residence of the plaintiff.

Required documents

Without strong evidence of paternity, the court will not grant the petition, so you should carefully prepare for the process. In the claim, for example, you can indicate: exactly when the pregnancy occurred (information confirmed with an issued medical certificate), how the father reacted to the news of the pregnancy, and why he did not formalize paternity.

Documents submitted with an application for recognition of paternity after death:

• death certificate of the testator;
• birth certificate;
• a certificate from the place of residence proving the fact of cohabitation;
• certificate of family composition.

The list of documents must be clarified with a lawyer, since it is finally determined when the circumstances of the case are covered.

It is also necessary to collect evidence of close relationships. The following are submitted to the judge:

• letters on paper, printouts of online correspondence between parents;
• joint photos;
• video filming with father;
• postcards with the signature “to son (daughter) from dad”;
• comments to photos on social networks;
• testimony of witnesses: neighbors, preschool teachers, teachers;
• checks, receipts for the father’s payment for classes in clubs and sections, purchases of things and toys.

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The authenticity of the material provided is verified in court. If any doubts arise, an additional examination can be initiated.

Genetic examination for inheritance

If the case reaches a dead end, the evidence provided is not enough to recognize paternity, and interested parties are categorically against the inclusion of illegitimate children among legal successors, a forensic genetic examination is ordered. Biological material for research is provided by close blood relatives of the deceased.

If paternity is confirmed as a result of a DNA examination, an illegitimate child will be able to:

• change surname and patronymic;
• communicate with your father's relatives;
• receive benefits related to the loss of a breadwinner or other payments if the father died from violent acts committed by third parties;
• receive the father's inheritance among the first-priority applicants according to the law.

As soon as the court decision comes into force, you must contact the registry office and obtain a new birth certificate with a record of the father.

After this, regardless of the moment of opening of the inheritance, the child’s representatives have the right to declare his rights to the property. There will be no need to reinstate the deadline.

What documents are needed

As we mentioned earlier, in order to be sure that the claim for recognition of paternity will be satisfied, it is necessary to carefully prepare for this process. For example, indicate in the claim the date when the mother found out about the pregnancy, confirming this fact with an issued medical certificate, or describe the father’s reaction to the news of her pregnancy.

At the same time, to recognize paternity after the death of the father, the following documents will be needed :

• certificate of family composition;
• heir's birth certificate;
• death certificate of the testator;
• a certificate from the place of residence, which serves as proof of the fact of cohabitation.

However, before filing a claim, we recommend that you check the list of additional required documents at the notary’s office. After all, this list is formed depending on the characteristics of a particular case.

An equally important factor is providing evidence of a close relationship. Therefore, you need to provide the court with :

• joint photos and videos;
• letters (both paper and printed electronic copies);
• comments on photos on social networks;
• various postcards, if they have a signature confirming the relationship;
• testimony of neighbors, teachers and acquaintances of the mother and father;
• receipts and receipts from joint classes in sections and clubs, etc.

The authenticity of these materials will be verified in court. But, if there is any doubt, the plaintiff may request an additional examination.

If paternity is confirmed voluntarily

Parents, not being husband and wife, can indicate themselves as the mother and father of the child voluntarily (Article 48 of the RF IC). They jointly submit an application to the registry office to enter information about their parents in the register book. If the mother's presence is impossible (for example, she died), the father does it himself.

The following documents are brought to the registry office:

• passports of both parents;
• the child’s birth certificate or a certificate issued at the maternity hospital (if registration has not yet been done);
• if the child has reached the age of majority - his consent, expressed in simple written form;
• a document proving the father’s right to file the application alone, for example, a mother’s death certificate;
• a receipt for payment of the state fee of 350 rubles.

On the day of application, parents receive a certificate of paternity. On its basis, the child will be able to claim his part of the inheritance in the future. He provides this document to the notary in charge of the case, and he includes him in the circle of successors.

If paternity is not established

If the father did not recognize the child as his during his lifetime, the biological origin of the latter will have to be proven in court. This is carried out in the manner provided for in Art. 49 and 50 of the RF IC and Resolution of the RF Armed Forces No. 16 of December 26, 2017.

The child, if he has reached the age of 18, or his legal representative (mother, guardian) files a claim in court. The defendants are the legal successors of the biological father-testator. The site is chosen according to their place of residence.

The lawsuit demands to establish the fact of recognition of paternity. The following is presented as evidence:

• witness statements;
• letters, including emails;
• diary entries;
• photographs and videos;
• call recordings, etc.

Molecular genetic testing makes it possible to determine paternity with a high degree of probability (clauses 19 and 20 of Resolution No. 16), but only if biological samples were obtained from the father himself, and not from his relatives.

But even in this case, the result is evaluated along with other data and is not 100% valid. The court will proceed from the entire body of evidence.

A request for an examination is attached to the application or submitted directly during the process. The court considers it at a meeting. Relatives of the deceased have the right to refuse to take part in the inspection. However, such behavior may be regarded by a judge as confirmation of paternity.

If the court recognizes the biological descent of the child from the testator, the newly identified son or daughter automatically acquires the right to the property of the deceased parent (unless the will provides otherwise). The plaintiff provides a copy or extract from the court decision to the notary who is handling the inheritance case.

If it was possible to prove paternity after 6 months have passed after the death of the parent (the time given for accepting the inheritance), the plaintiff goes to court with a request to restore the period. If the decision is positive, the shares of all successors will be redistributed, and previously issued certificates of inheritance will be cancelled.

If the testator recognized paternity, but did not legitimize it

If the deceased actually recognized paternity during his lifetime, but did not legalize it, the procedure proceeds in the same way with minor exceptions. The plaintiff (a child over 18 years of age or his legal representative) submits an application to the district court for consideration in a special proceeding.

The heirs of the deceased become not defendants, but interested parties.

Evidence of actual recognition may include:

• the child being maintained by the deceased;
• letters, diary entries;
• photographs, video and audio recordings, etc.

Establishing the fact of recognition of paternity in this manner is easier and faster. However, it can only be used if there is no dispute about the right, for example, over inherited property with other relatives of the deceased.

In practice, it is used if the child is the only possible successor.

Inheritance by an illegitimate child under a will

The presence of a will eliminates the need to prove kinship with a deceased citizen. If the order specifies a specific person, it is enough to confirm your identity with a notary. A birth certificate is not required, since the deceased could indicate in the will not only relatives, but also strangers.

If the owner assigned part of the property to an illegitimate child , no problems will arise - the child will enter into inheritance rights. True, if he is under 14 years old, the acceptance of the inheritance is entrusted to the mother - as the legal representative of the child (Clause 1, Article 26 of the Civil Code of the Russian Federation, as well as Article 64 of the RF IC).

Legal vocation of illegitimate children

In the case of inheritance in order of priority, the children of the testator are included in the group of original heirs (according to Article 1142 of the Civil Code of the Russian Federation). Having drawn up a statement of their desire to accept property by inheritance, illegitimate persons receive a share of the property, which is equal to the shares of other heirs:

• the testator's parents;
• children who were born in marriage;
• spouses;
• grandchildren who inherit by right of representation.

It is worth noting that the contents of the Civil Code of the Russian Federation do not indicate exactly which children of the testator have the right to inheritance.

For this reason, today it is believed that part of the inheritance of the deceased owner is due to the children:

1. in relation to which the owner of the property was deprived of parental rights;
2. officially adopted and relatives;
3. those who live with the testator, as well as children living separately from him;
4. born out of wedlock or in an officially registered marriage.

The only condition for receiving inherited property is the mandatory presence of a document that confirms the family relationship between the applicant for the inheritance and the testator. That is, in the “father” column the data of the person whose property the daughter or son is claiming should be written down.

Inheritance by will by illegitimate children

Every citizen of the Russian Federation during his lifetime has the right to draw up a testamentary act or, more simply, a will, in which he himself can designate his legal successors, their shares and objects of inheritance related to them.

In fact, the principle of complete freedom of will gives the owner the right to choose among his relatives, friends and even third parties and organizations those to whom his rights and obligations associated with this property will be transferred.

At the same time, illegitimate children who have the right to receive part of the inheritance, according to the terms of the will correctly executed by the testator, can also act as legal successors under the will.

However, if there is no mention of an illegitimate child among the heirs, he will still be able to receive the so-called obligatory share of the inheritance.

Mandatory share in inheritance

But even if an illegitimate child is excluded by the testator himself from among the claimants to the property, in some cases he can still count on a share of the property. We are talking about a compulsory share - a part of the inheritance that is due to the legal primary successors deprived of the inheritance (children, spouse, father/mother).

The conditions for the obligatory receipt of a share in the inheritance are the minority of the heir or his incapacity for work (the legal successor is a disabled person, a pensioner).

Thus, a minor or disabled illegitimate child has the right to claim part of the inherited property. Its size is ½ of the share that he could receive by law.

Obligation of illegitimate children to support their parents

As a general rule, if one of the parents is recognized as disabled and needs help, the child who has reached the age of majority is assigned such a responsibility. However, the fact will be taken into account whether the parent himself took part in the educational process, whether he provided material support, and whether the fact of paternity was confirmed. It is important to understand that if an illegitimate child was not officially recognized by his father and did not receive financial support from him, then the parent should not subsequently rely on him.

It is important to take into account that many women deliberately refuse support from biological fathers so as not to burden their children with the support of a parent in the future.

Peculiarities and pitfalls when illegitimate children receive an inheritance

However, despite the fact that an illegitimate child has the right to inherit property, he will not be able to apply for it to a notary’s office until he reaches adulthood. A notary can only accept a statement expressing his desire to become the owner of a share of the testator’s property from legally capable citizens.

At the same time, in the Russian Federation, from the age of fourteen, children have a certain legal capacity, except in cases where such an heir is already legally married or is emancipated by a decision of the guardianship and trusteeship authorities.

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So, the lawyers of the Legal Ambulance website recommend remembering the following tips that can make the process of receiving an inheritance easier:

• According to Russian legislation, the duties and rights of children born in an official marriage and illegitimate children are equal. Thus, both are obliged to receive equal shares of the inherited property. For example, if the father of an illegitimate child has an officially adopted child and one natural child, then each of them will receive the same part of the inheritance.
• If minor children are not mentioned in the contents of the will that was drawn up by his father, then he may receive a mandatory share.
• Minor illegitimate heirs do not have the legal right to claim their rights to inherited property. Therefore, before such applicants reach the age of fourteen, the legal representative or parent of the child must contact the notary’s office. In addition, after reaching fourteen years of age, the child still requires consent to accept the inheritance of the responsible persons.
• Also, illegitimate children have the right to refuse an inheritance if its acquisition is contrary to the interests of the children themselves. For example, if the debts on the father’s apartment exceed the total cost of that part of it that should go to the child. In order to exclude the possibility of a criminal conspiracy between the remaining heirs in order to abandon the inherited property, it will be necessary to obtain permission from the guardianship authorities.
• Remember that illegitimate children do not have the legal right to dispose of the inheritance until they reach the age of majority. Until that day, all measures to ensure the protection of the inheritance fall on their legal representatives, whose actions throughout the entire period of protection will be monitored by the guardianship authorities.

An illegitimate child is an heir under a will

Thus, the procedure for inheriting property by an illegitimate child and children born in a marital union is no different. But this applies to legal inheritance - if there is no expression of the will of the testator.

If there is a will, the inherited property is received by the persons indicated by the testator himself.

For example, a man has the right to disinherit his own illegitimate son and bequeath all property to children born in marriage. Or, on the contrary, designate illegitimate children as legal successors. Or divide the inherited property into equal parts.

Can an unborn child receive an inheritance?

Modern legislation takes into account almost any life situation. One of them is the presence of a conceived but unborn child. The interests of the child are protected by a notary (Article 1166 of the Civil Code of the Russian Federation). He can learn about such a fact from one of the heirs or directly from the mother of a potential applicant for the testator's property.

If a notary has received an application to suspend a notarial act, he issues a corresponding resolution (Article 41 of the Law on Notaries). The document is valid for 10 days . This period is given to the applicant to file a claim in court and provide evidence of this fact.

If the court opens proceedings, the notary's decision is valid until the end of the proceedings. If the fact of paternity is confirmed, the born child is included in the heirs. His interests are represented by legal representatives: they accept the inheritance, receive a certificate of inheritance and register the property.

Can parents or guardians refuse an inheritance? If the court proceedings reveal that the inheritance is not valuable for the child or the obligations of the testator exceed the value of the property, the legal representatives of the illegitimate child may renounce the property rights. However, they must first obtain the consent of the guardianship authority. The application will need to be accompanied by documents confirming the inappropriateness of entering into inheritance rights. After receiving the consent of the guardianship authority, parents or guardians can freely submit a waiver application to the notary.

The issue of inheritance largely depends on the presence/absence of documents confirming the family relationship with the testator. Illegitimate children inherit property on the same basis as blood descendants. However, they need to prove their relationship to the deceased - the proof is a birth certificate or a court order establishing paternity. An exception is if the child is dependent on the testator. Under such circumstances, he can inherit the property like any other applicant in line.

Alimony

The issue of financial security is most often the most pressing if a child is born outside of an official marriage. If the father refuses to support the child, then you can file a lawsuit for alimony, but even in this case a number of difficulties arise. Payments can only be made after paternity has been established:

1. It is necessary to obtain the official consent of the father.
2. Provide evidence of paternity to the court.

According to judicial practice, in most cases paternity is recognized after official proceedings. After completing this procedure, the child is assigned alimony in the general manner. To confirm the relationship, it is necessary to conduct a medical study - DNA examination. Subsequently, if paternity is recognized in court, all costs related to this examination are recovered from the defendant.

Rubric “Question/Answer”

My husband and I are divorced, but we live together. He is due to have a child with another woman this summer. What rights will he have?

Legitimate or illegitimate children have the same rights to the inheritance of their parents. Moreover, even if the father dies, but the child is not born out of wedlock, he is also entitled to a share in the inheritance. Children in the womb have the same rights to inheritance as the living children of the testator.

I have the following situation: I lived with a guy in a civil marriage (cohabitation), we had a daughter. According to the documents, he is the official father, and the child is registered in his apartment together with him. We separated and the child remained registered with him, and I myself moved in with my parents. I officially filed for alimony, but he didn’t pay for 5 years, and as a result, the debt grew. He then got married and has another daughter. I recently found out that the children's father died. Tell me, what should I do with his alimony debt and what should I do with the apartment where my daughter is registered? Do I have the right to claim it for my daughter’s future residence?

Two things stand out from your situation:

• Alimony. The death of the payer terminates the payment of child support - by virtue of Art. 120 IC RF. However, if there is debt, it will not disappear anywhere. If the heirs take over the property of the deceased, they will automatically inherit his alimony debts. You will have to answer in accordance with the share of the property received. You have a chance to claim arrears of alimony after the death of your father - to do this, you need to submit an application for calculation of the arrears to the SSP. The bailiffs will calculate how much your former partner owes. Then you need to file a claim for debt collection . The defendants in the lawsuit will be the heirs who received a share in the property after the death of the child's father. The court examines the case materials and makes a decision. It is best to contact a lawyer to competently draw up a claim and refer to relevant articles of the law, for example, Art. 1102, 1110 of the Civil Code of the Russian Federation and others.
• Child registration. Cohabitants are not included in any of the hereditary branches. Most likely, you will not get the apartment of your former partner, but the illegitimate daughter is the heir in the first place (Article 1142 of the Civil Code of the Russian Federation). If the deceased did not make a will, your daughter has the right to a share in her parent's apartment. At the same time, the father’s unborn child will have the same share. The wife is also applying for an apartment. Usually in this case it is necessary to divide the inherited property. One option is to negotiate peacefully and draw up an agreement on the division of the inheritance. But in any case, if the daughter is among the heirs by law, she will retain the right to register in the apartment of her deceased father . The main thing is to submit the application to the notary on time. If the child is 14 years old, he writes the application himself, and if not, the parent does it for him.

Thus, you will be able to collect alimony debts, as well as take care of your daughter’s entry into the inheritance of her deceased father. The key role is played not by cohabitation, but by the fact of paternity. Children inherit from their parents, regardless of whether they are born in wedlock or illegitimate.

The husband died, the children got the land. An illegitimate daughter appeared, but paternity has not been established. Can she sue part of the land plot?

Yes maybe. But to do this, she will have to file a claim for recognition of paternity (posthumously). If this happens, the current children-heirs will have to act as defendants. The illegitimate daughter must prove that the deceased voluntarily recognized her as his child during his lifetime. Be prepared for her to provide photos, videos, copies of letters, postcards, correspondence, and purchase receipts. There may also be testimony from relatives, friends, work colleagues and others. If the heir who appears does not apply to establish paternity (posthumously), there will be no problems. If she files and the court rules in her favor, the shares of the land plot will have to be redistributed taking into account the new applicant. The shares of current heirs will decrease.