Statement of claim to establish the fact of recognition of paternity after the death of the father

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To automatically enter data about the father into children's documents, the parents must be in a registered marriage. Otherwise, a procedure to establish paternity will be required. Sometimes a man dies before he has time to submit an application to the registry office. In such a situation, the child is deprived of the right to be officially called his son or daughter. In addition, he loses all property rights associated with the death of his father. The law provides for the possibility of entering data about the father into children's documents in the event of his death. To do this, it is necessary to apply to the court with a statement of claim to establish the fact of recognition of paternity after the death of the father.

Procedure for establishing the fact of recognition of paternity

The emergence of paternal rights and responsibilities is tied to the moment paternity is established. The law provides for the following ways of establishing paternal rights:

• the mother and father were married at the time of the child's birth;
• the child was born within 300 days after the divorce;
• the citizen submitted an application to the civil registry office to establish paternity (with the consent of the district guardianship department);
• mother and father submitted a joint application to the district registry office;
• the court made a decision to establish paternity at the request of the interested party;
• the court established the fact of recognition of paternity by the deceased citizen (Article 50 of the RF IC).

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The last option applies if a citizen died before he was able to apply to the registry office with an application to recognize the child. The procedure is carried out exclusively in court.

The applicant independently decides whether to change his surname to his father's surname. However, the patronymic name must be brought into line with the father’s data.

Important! If the decision is made in relation to a child aged 10 years or older, then to change the surname it is necessary to find out his opinion (Article 59 of the RF IC).

How to prepare for paternity determination?

Remember, when drawing up a statement of claim to establish paternity after the death of your father, the sample must include as many arguments as possible in favor of satisfying your claims. Therefore, during preparation it is necessary:

• talk to the relatives of the deceased, finding out their position regarding the current situation;
• decide on the goals of satisfying the claim and collect all the evidence required in this case;
• find out whether there is a dispute about the right between heirs, relatives or other parties who have their own interests in this matter;
• correctly identify the defendant (if the father during his lifetime denied a relationship with the child, the other party to the claim must be recognized as the heirs of the deceased);
• indicate interested parties, which can be both organizations and citizens, if their interests are affected by the legal proceedings;
• identify witnesses in the case (neighbors, relatives, friends or colleagues), but already declared interested parties cannot act as such;
• understand whether it is worth changing your son or daughter’s surname at the end of the proceedings or keeping the existing one.

Keep in mind that a situation with a surname different from that of the mother can lead to psychological problems in the baby. Therefore, it is so important to carefully draft a petition to the judicial authorities. It must contain all information required by law.

If there is a dispute about the law, the judge will not consider your petition in a special manner. When inviting interested parties, you can specify in the application the social protection authorities, the Pension Fund and other parties with whom the plaintiff will have to work in the future (after the court decision is announced).

Evidence will include receipts or photographs, videos, correspondence with the father, or other documentary evidence. Based on the contents of these papers, it must be established that the deceased himself recognized his status as a father. They must prove manifestations of care for children and other actions carried out by him as the legal representative of the child. When identifying witnesses, keep in mind that they should have independently seen manifestations of care for children, or other assurances of the deceased regarding his son or daughter.

Why is it necessary to establish the fact of recognition of paternity?

A feature of the statement of claim is the need to indicate the reasons for which this legal fact is required. The applicant must directly and openly state why he needs information about the father in the children's documents.

In practice, the following options are possible:

• in memory of my father;
• to apply for a survivor's pension;
• to obtain inheritance rights.

Thus, as a result of establishing the fact of paternity, the child receives not only family ties formally, but also legally. The son or daughter receives all property benefits due to official children.

How to properly file a claim?

First of all, you need to clarify what exactly you want. In addition to establishing the fact of paternity, you will need to change or clarify information about the child’s birth in the registry office, and register a new surname and patronymic. Therefore, the following requirements must be indicated in the petition part:

1. Recognition of a certain person by the father (write full name and surname, date of death);
2. Changing your patronymic and surname (tell us which one you want to change from and to which one);
3. Making changes to the birth record and certificate (you will need the number and date of the document, as well as where and by whom it was issued).

In the last requirement, it is advisable to clarify what information should be included in the registry office documentation. The documents attached to the application will be:

• copies of the claim according to the number of participants in the proceedings;
• a certificate for the child and a paper confirming the death of the father;
• evidence that served as the basis for satisfying the requirements;
• the plaintiff’s passport and the results of genetic testing (if carried out);
• petition to bring witnesses in the case.

All documents must be copied and certified by a notary.

Proper plaintiff

The law limits the list of persons who can go to court.

Proper plaintiffs

The authority of the plaintiff must be documented. For example, the mother provides the child’s birth certificate and her civil passport. If the minor has reached 14 years of age, then his passport is additionally attached.

What exactly will you have to prove?

When developing a statement of claim to establish paternity after the death of the father, the sample is taken as a basis, and the rest is added based on the specific situation. In order for the judge to satisfy the claims made by the plaintiff, some mandatory facts will have to be proven:

• presence of a child (a document confirming birth or passport must be presented);
• death of a certain person (certificate confirming this fact or calling witnesses who have such a document);
• that the child's parents were not in an official and legal relationship, and the father recognized the relationship while he was still alive.

It is also advisable to present in the same document the facts that there is no dispute about the law. In addition, it is necessary to take into account the category of the case. In some cases, genetic testing is not required, and there is no need to involve lawyers. In addition to the need to satisfy the requirements before the start of the trial, you need to understand what consequences a positive decision of the judge will entail for the plaintiff and the child.

Algorithm of actions

In practice, the procedure can be divided into the following stages:

1. Collection of documents.
2. Preparation of a statement of claim.
3. Payment of duty.
4. Sending documents to court.
5. Trial.
6. Obtaining a court decision.
7. Making changes to the birth record.

Collection of documents

List of documentation for applying to court:

• the applicant's civil passport;
• an extract from the house register;
• father's death certificate;
• child's birth certificate;
• fee payment receipt;
• petition to bring witnesses;
• photos and videos of the deceased and the child;
• correspondence (letters, SMS, screenshots from instant messengers);
• bank account statement showing the receipt of funds for child support from the deceased.

One of the indisputable proofs is the result of a DNA study. However, in the case of establishing the fact of recognition of paternity, the study can be carried out with other relatives (parents, brothers, sisters, aunts, uncles, grandparents of the father).

If the applicant has the results of a DNA test in hand, then it can be attached as evidence. Otherwise, you can prepare a petition to appoint an examination.

Features of preparing a statement of claim

Regardless of the method of consideration of the application, the plaintiff must prove the paternity of the deceased. The burden of proof rests with the approver. Therefore, it is necessary to pay special attention to preparing the evidence base.

An important condition is the presence of witnesses on the part of the deceased. The relative must:

• recognize the child as the son of the deceased;
• confirm that the deceased recognized the child as his own;
• refute the fact of the confession.

If relatives live in another country or refuse to attend the court hearing, the court will proceed from the evidence provided by the plaintiff.

Payment of duty

Often, posthumous paternity determination is a claim to protect the interests of a minor child. Therefore, an applicant acting on behalf of a minor is exempt from paying the fee.

If the application is submitted by a child who has reached 18 years of age, or by a guardian of an incapacitated citizen, then a fee of 300 rubles must be paid. The original receipt is attached to the claim.

Referral to court

The procedure for establishing the fact of recognition of paternity differs slightly from the option for considering an application. The review period varies depending on the option.

Depending on the situation, the issue can be resolved:

1. In the procedure of claim proceedings (Section 2 of the Code of Civil Procedure of the Russian Federation). Applicable when there is a dispute. For example, relatives of the deceased refuse to recognize a family connection. As a rule, the new relative is the priority heir. Therefore, other recipients of property do not want a competitor to appear. The procedure may take a long time.
2. By way of special legal proceedings (Section 4 of the Code of Civil Procedure of the Russian Federation). Applies if other relatives are absent or have no objections. This option is often used if there is no inherited property left after the deceased. The application is considered in one meeting. The applicant's request is satisfied.

Trial

The legal process varies depending on the order in which the application is processed.

When considering the application, the plaintiff must prepare a short speech. It should contain the following information:

• about the cohabitation (close communication) of the mother of the child and the deceased;
• information about pregnancy;
• about the deceased man’s attitude towards his girlfriend’s pregnancy;
• whether he met her from the maternity hospital;
• whether he gave money for the maintenance of a minor,
• did you buy him gifts?
• whether publicly recognized as a son/daughter.

In addition, the court hears witnesses (neighbors, friends, relatives).

Specialists from district guardianship departments and registry offices are invited to participate in the process. A specialist from the guardianship department gives an opinion if the application is submitted to protect the interests of a minor.

If there is insufficient evidence, the court may order a DNA test. Comparative material is taken from a relative of the deceased and from the child. Payment for the examination is borne by the plaintiff. In accordance with the results of the analysis, a decision is made.

Obtaining a court decision

If the court has satisfied the plaintiff's request, then it is necessary to obtain a court decision. The document is issued on the day of announcement, but comes into force only after 30 days.

Special proceedings

Posthumous establishment of paternity in special legal proceedings is used in cases where:

1. The baby's parents were not officially married.
2. The child's father did not have time to officially establish his paternity during his lifetime.
3. The baby was born after the death of his father. Here it is necessary to establish the fact that the future father knew that the child was about to be born.
4. The man planned to register voluntary paternity, but did not have time to do so.

When establishing the facts:

• lifetime participation of the biological father in the upbringing and maintenance of the child;
• recognizing him as your child;
• cohabitation of the deceased man with the mother of the child, or constant financial assistance for the maintenance of the baby;
• the absence of a challenge to the acknowledgment of paternity from third parties interested in refusing to formally establish paternity,

The judicial procedure usually follows a simplified procedure, that is, special legal proceedings are applied. As a rule, such claims are considered quite quickly, no genetic examination is required, and the plaintiff does not need to seek the help of a lawyer.

Collection of evidence

During special proceedings, the legal representative of a minor will need to convince the court that the deceased man had family ties with the baby. A simple statement of this fact, of course, is not enough; they need to be supported by evidence and testimony of witnesses. Material evidence may include:

• a certificate from the Criminal Code about the joint residence of the father and mother of the baby;
• photographic and video materials from which it can be concluded that the man and the child’s mother lived together, as well as that he participated in raising the child;
• statements from the bank accounts of the deceased, according to which he provided financial assistance to the child, bought things for him, toys, made other purchases or paid for services provided to the child;
• any written documents that show that the deceased took part in the life of his son or daughter, for example, an application for admission of a child to a school, section, kindergarten, which he wrote and signed with his own hand;
• information from social networks, on the basis of which it can be concluded that the man recognized the child during his lifetime, for example, photographs of the baby posted on a social network with the appropriate signature.

Sample statement of claim to establish the fact of recognition of paternity

A claim to establish the fact of recognition of paternity may be filed by:

• the child's guardians or trustees;
• other legal representatives of the child who are dependent on him;
• the organization in whose care the baby is, for example, he lives in an orphanage, in this case the management of the orphanage can initiate a lawsuit to establish the fact of paternity;
• the child himself, if he has reached the age of majority.

A claim for posthumous establishment of paternity (fact of kinship) is filed at the plaintiff’s place of residence. The document must contain the following information:

1. The name of the court in which the claim is filed.
2. Information about the plaintiff, third parties participating in court hearings.
3. Statement of the situation: when the child was born;
4. information about him;
5. who is the biological father;
6. an indication that the child’s parents were not officially married;
7. why the father did not formalize voluntary paternity;
8. date of death of the parent;
9. facts by which it can be judged that the deceased man recognized family ties with the baby during his lifetime;
10. listing evidence confirming the stated facts.

Lawyers recommend describing the reasons why the deceased did not recognize the fact of paternity on his own as fully and fully as possible. But you shouldn’t go to the other extreme and

describe circumstances in the form of a novel or long story.

Sample statement of claim for recognition of paternity

Documentation

The statement of claim will need to be accompanied by:

• the child’s birth certificate, if he is already 14 years old, then his passport;
• any document on the basis of which the relationship between the child and the plaintiff is confirmed, for example, the passport of the mother or another legal representative (if he is a guardian, then it will also be necessary to attach a document establishing guardianship);
• death certificate of the person in respect of whom the plaintiff seeks to establish the fact of recognition of his paternity.

Why acknowledge paternity after his death?

It is necessary to establish the relationship of children with their deceased father for the following purposes:

• to receive a pension if the deceased was the sole breadwinner;
• receiving compensation for unnatural death, such as murder;
• inheritance for the deceased;
• entering information about the biological father into the child’s birth certificate.

A man is officially considered a pope under the following circumstances:

1. Father and mother are married. The application for registration of a newborn was submitted jointly or by one of the spouses;
2. The parents are not married, but filed a paternity claim together. If the mother is deceased or incapacitated, only the father can be the applicant;
3. Paternity was established by the court in compliance with a special or claim procedure based on the norms of Russian family and civil law.

Posthumous recognition of a man as a father is required if the parents were not married, and the father did not want or was unable to confirm parenthood voluntarily before passing away.