Establish recognition of the fact of paternity after the death of the father. How to establish paternity after the death of a father? Which court to apply to

29.06.2020

In the modern world, many couples live in a civil marriage, not registering their relationship with the registry office, not finding time for this or not considering it necessary.

But in a person’s life there is no notebook where it is written what will happen to him tomorrow, and sometimes the absence of a stamp in the passport can lead to serious consequences, for example, if the child’s father suddenly passes away. In this case, the mother will have to spend a lot of effort to prove paternity in court.

The posthumous establishment of paternity is a frequent procedure within the framework of judicial practice. Most often this happens when the child was born unmarried and during his lifetime did not have time to formalize the documents for paternity, in order to receive inheritance and benefits from the state after the death of the parent (or the death of the child), it becomes necessary to apply to the court with a statement.

The application form is attached, or it can be taken from the court. It is filled in by hand, the more information is indicated, the better for the plaintiff.

Legislatively, the establishment of blood ties after the death of the father is regulated by the following regulations:

the Constitution of the Russian Federation;
Family Code of the Russian Federation (Articles 49, 50 of the RF IC);
the Tax Code of the Russian Federation;
Civil Procedure Code of the Russian Federation (Article 264 Code of Civil Procedure of the Russian Federation)
Federal Law “On state forensic activities”.

The fact of paternity and the fact of recognition of paternity

There are two similar concepts: the fact of paternity and the fact of acknowledging paternity, but they should be distinguished from each other, because they have a different semantic character, and the court conducts on them in different ways:

If the father did not recognize himself as a parent or died before the birth of the baby, then in this case the term “Establishing the fact of paternity” takes place. The proceedings in this case will proceed in accordance with Article 49 of the RF IC;
If the deceased father during his lifetime was engaged in raising a child and recognized him, then in this situation, relatives or guardians need a procedure for recognizing paternity (Article 50 of the RF IC).

Let's look at both situations in more detail.

In both cases, the consideration of the case takes place through the action proceedings.

For similar cases no statute of limitations Therefore, a lawsuit can be filed at any time.

1. If during his lifetime the father did not recognize his child

If during the life of the father did not recognize his child, then the identification process is considered upon an application from the mother of the child, the guardian, or may be considered upon the application of representatives of the institution where the child is located, or on the claim of the child himself, if he is an adult.

It should be borne in mind that if the child has reached the age of 18, the set of documents will need to be attached his written consent to establish paternity but the child has every right not to give such consent. In this case, the court will refuse to establish paternity without giving reasons.

The statement of claim must indicate the whole situation, describing all the reasons why the plaintiff decided to start the procedure for establishing paternity and attach copies of the necessary documents and evidence. Additionally, for a more detailed description, the document must indicate the timing of the onset of pregnancy and the reasons due to which the father was not included in the birth certificate.

Among these documents, the court needs:

Birth certificate of the child;
Certificate from the registry office on the absence of a registered relationship between mother and father;
Father's death certificate;
Receipt of payment of the state fee in the amount of 200 rubles.

For evidence confirming kinship, the court may accept any information or materials: correspondence of parents, testimonies of relatives, relatives, neighbors or acquaintances ...

But there are times when a counterclaim is filed with the court, for example, from another family of the deceased or his parents and relatives. This may be the case when it comes to the right to enter into an inheritance.

It should be noted that illegitimate children have the full right to inheritance and are heirs of the first stage if they can prove their relationship in court.

In this case, the court has the right to request a DNA test. Genetic examination can be carried out only in one clinic, agreed and documented. The biomaterial of close relatives (blood, saliva), or the blood of the deceased can serve as a material for analysis. Sometimes only a strand of hair or any particle from the body of the alleged father is enough to conduct an examination.

If the father died a violent death, and the relationship of the parents and the relationship of the child have not been established, but the mother intends to apply to the court with a statement on the establishment of paternity, then it is better to take a blood sample of the deceased for examination at the morgue in time.

In emergency and extreme cases, when there is nowhere to take the biomaterial, exhumation of the corpse may be ordered by decision of the court and the prosecutor's office.

decision to exhume

If there is no evidence of paternity and biomaterials available for DNA testing, the court may order an exhumation. For this, a decision is issued for exhumation. All costs of its implementation shall be borne by the plaintiff. After the examination, the body must be buried again at the expense of the applicant.

Also, the decision on exhumation can be made by the procurator in the framework of a criminal case. The prosecutor's office submits an application to the court, after which it receives a decision that is necessary for the administration of the burial place. In the presence of witnesses, a representative of the MUP and the sanitary and epidemiological station, an exhumation is carried out, and subsequent reverse burial.

Since this is not at all a simple and expensive matter, this examination is carried out only in extreme and hopeless situations.

Genetic examination gives almost 99% guarantee of winning the case in court.

When certificates with the results are received, they are submitted to the court, after which, when considering all the arguments, a decision is made on the recognition or non-recognition of paternity.

If the court decision is positive, then the plaintiff with documents on satisfaction of the requirements and the birth certificate of the child applies to the registry office, after which he receives a certificate of paternity, and with it he can claim entry into the inheritance or compensation (in case of violent death of the father).

2. If during his lifetime the father recognized the child and took care of him

If, during his lifetime, the father recognized the child and was engaged in his upbringing, then the case is considered in a special order.

This means that there is no object and no dispute about the right. Accordingly, the court makes a decision, taking into account any evidence that has the fact of confirmation. And to confirm your rights in this situation is quite simple: you can provide certificates from the housing and communal services on cohabitation, testimonies of the child's educators and teachers, recognition of grandparents, checks for joint rest and pastime, any photos and videos, travel vouchers ...

In this case, genetic examination is not required, since the father does not have to be biological, the main thing is that he recognizes the child as his own.

In both cases, after receiving documents from the registry office, the plaintiff is entitled to claim a survivor's pension.

Arbitrage practice

Paternity cases most often end in favor of the plaintiff, as all evidence is easily verifiable and available. The consideration of cases is especially simple and fast when the plaintiff enlisted the support of relatives of the deceased.

A special case is considered when it is required to establish paternity in the event of the death of the mother.

There are 2 orders here:

Voluntary	Judicial
If the parents were married, then the father will be automatically recorded in the certificate, including if they divorced less than 300 days before the birth of the child;	This is possible if the guardianship authorities have not given their consent to establish paternity. In this case, the most reliable evidence in court will be a genetic examination. All the possible proofs described above will also do.
The father can apply to establish paternity if the relationship has not been registered. In this case, the consent of the guardianship authorities is required.	If the father refuses to voluntarily recognize his relationship, the guardian or the one who brings up the baby, or the child himself, if he has reached 18 years of age, can sue.

At the same time, the father must attach copies of the mother’s death certificate to the application for establishing paternity, or a certificate of recognition of her incapacitated, located in places of deprivation of liberty, documents on the deprivation of her parental rights or missing. If the child has reached the age of majority, then written consent is required from him.

It is also possible to establish paternity after the death of the child. The case is also subject to litigation. The claim may be filed by the mother, father or guardian. This may be required if you wish to enter into an inheritance.

This is the procedure for establishing paternity. In order for the case not to drag on for long periods, it is enough just to correctly draw up a statement and pick up evidence and arguments that will convince the court.

Question answer

Can a child's grandmother apply to establish paternity?

No, he can not. The grandmother is not the plaintiff in this case.

If I prove only the fact of acknowledging paternity, can my child have the right to inherit?

No, he can't. Only if paternity is established can your child become the legal heir.

I divorced my husband when I was 5 months pregnant. Now the child is 3 months old, the ex-husband died. Will I be able to establish his paternity?

You can. The divorce occurred less than 300 days before the birth of the child. You can safely go to court.

They were not recorded with a common-law husband, I have a child (not from him), in the birth certificate in the column “father” the baby has a dash. They wanted to register the child for a common-law husband, but did not have time, he crashed in a car accident ... Can I establish the fact of recognition of paternity and what do I need for this?

Yes, you can. To establish the fact of recognition of paternity, the father does not have to be biological. All you have to do is collect evidence and file a lawsuit. You can get the application form on the website.

Another family of the child's father insists on DNA testing. I don't want to run it. Can I refuse, and if we do it, and it turns out that the child is not from this father, who will pay for it?

The decision to conduct a DNA examination can be approved by the court, and if the examination is not in your favor, then you will pay for it. Initially, the costs will be borne by the plaintiff, then, if you lose, the costs of reimbursement will be assigned to you. Since the side that lost the case always pays. The cost of such an examination is now about 30 thousand rubles.

About DNA testing on video

How is DNA testing done? See the material prepared by the program "Medical Notes of the Everyman"

Far from always, the father wants to acknowledge his paternity of his own free will, but if there is a biological relationship with the child, his opinion actually does not matter. Moreover, even death is not a basis for not recognizing him as a father in a judicial proceeding - the mother or the child himself can file a corresponding claim even after the death of a man. This procedure has its own characteristics, but it is possible to implement it.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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Basic moments

It should be remembered that the court decision on establishing paternity after the father has a fairly large legal force. That is why it is imperative to first study the consequences of its adoption.

Since in the future it will be extremely difficult to cancel it by way. In most cases, the procedure of the type in question is not beneficial to other relatives of the man whom they want to recognize as the father. The child is always the first category.

By filing to recognize paternity through the courts, mothers pursue the following main goals:

receive alimony arrears by selling owned property through a special auction;
give the child the right to inherit the property of his parent.

It will first be necessary to study the legislative framework, as well as judicial practice on this issue. This will significantly simplify the procedure for resolving the case, and will also make it possible to avoid various controversial situations, a waste of time.

It is also desirable to deal with the following important questions in advance:

What it is?
Where to begin.

What it is

Acknowledgment of paternity is a certain procedure, as a result of which biological relationship acquires legal force.

When paternity is established, a large number of different duties and rights arise between the parent and his child. At the same time, they are all regulated by the legislation in force in the territory of the Russian Federation.

The child has the right:

to receive financial support from his father;
inherit property after his death;
to protect their interests as a parent.

At the same time, as a result of the completion of this procedure, the father himself also has a large number of rights.

He, in turn, will also have the right to inherit his property for the child in the event of the death of the latter and demand upon reaching retirement age and. At the same time, the father needs to be engaged in the upbringing of his child, to participate in his education.

It is only necessary to remember that the procedure for establishing paternity has its own characteristics. Especially when it comes to implementing it after the death of an individual.

First of all, this concerns the institution where you should contact:

Where to begin

The court to establish paternity after the death of a father without is a rather complicated procedure, therefore it is necessary to be well prepared for it.

The preparation process should include the following:

Consultation with a qualified lawyer, lawyer.
Acquaintance with the regulatory framework on this issue.
Collection of all necessary documents, evidence of the very fact of possible paternity.

Especially thoroughly it is necessary to approach the last point. Since the procedure for establishing paternity through the court after the death of a man is a complicated procedure precisely because of the absence of the father himself.

If possible, it is worth filing an appropriate application with the court as soon as possible, since the longer the period of time passes from the moment of death, the more difficult it will be to prove paternity. The only truly reliable way to confirm biological relationship is DNA testing.

For its implementation, it will be necessary to collect genetic material from the oral cavity of the father. Which, accordingly, will be simply impossible in the absence of a body.

The reasons for this may be very different. If for some reason it is not possible to conduct a DNA test, it will be necessary to provide the court with other evidence of the biological relationship between the child and the man.

Proof of paternity can be:

witness's testimonies;
video and audio recording;
otherwise.

As a rule, immediately after filing the relevant application in the court office, the evidence of paternity is considered.

If employees consider them not serious enough, they can simply refuse to deal with the case. For example, if a woman cannot prove the very fact of having an acquaintance, then the acceptance of the statement of claim will be refused in any case.

special order

If possible, it is worth using a special procedure for civil proceedings.

It is a somewhat simplified way of considering a case and has the following important features:

The subject of judicial protection is not any violated right, but the legitimate interest of the applicant himself.
Participants in the case will be only the defendant himself, as well as third, interested parties - having the opportunity to shed light on the current situation.
There is no possibility - to declare a waiver of the claim, to accept the application.
The claim must be filed without fail only at the place of registration of the applicant himself - this moment is indicated in the current legislation.

To implement a special procedure for acknowledging paternity in court, it is necessary that one of the following persons act as a plaintiff:

child's guardian;
mother;
the individual who is currently in charge of the child;
the child himself - if he is already 18 years old.

At the same time, the very filing of an application with the court and its resolution in a special procedure can be carried out only if two conditions are simultaneously met:

For some reason, the child's parents were not married.
The father acknowledged his paternity, but did not have time to officially register it before his death.

It should be remembered that if at least one condition necessary for the consideration of the case in a special order is not met, this procedure will simply be impossible.

In this case, it will be necessary to file a statement of claim in the standard way, and its consideration will be carried out in a general manner.

How to prove the fact of recognition

It will be necessary to provide sufficiently serious evidence for the consideration of the case in a special order.

For this you will need:

It often happens that parents have already prepared the appropriate in the registry office on the recognition of paternity. If it is in the hands of the mother, then it is necessary to present it to the court. Equally important are eyewitness accounts.

Moreover, it is not at all necessary that they hear the very confession of the father that the child is his. It is enough to confirm simply the very fact of cohabitation / pastime of a man and a woman.

Video: types of DNA tests

Registration procedure

The procedure for recognizing paternity through the court after the death of the father in the general procedure practically does not differ from a similar procedure implemented with a living man.

It must include the following steps:

preparation of documents;
writing a claim;
submission of the entire list of mandatory documents, as well as the application itself to the court;
adjudication;
state registration of paternity.

In doing so, particular attention should be paid to the following important issues:

Drawing up an application to the court for recognition of paternity after the death of the father.
Attached documents.

Application to the court for recognition of paternity after the death of the father

It is necessary to draw up an application of the type in question according to the general rules that apply to all documents of the type in question.

The structure of the claim in this case is as follows:

full name of the court;
details (plaintiff, defendant (if any), third party);
as briefly as possible and with references to the legislation, the formulated request, the designation of references to documentary evidence of the very fact of the possibility of paternity;
a complete list of attached documents;
date of preparation of the document;
plaintiff's signature.

There is an important point regarding the date of this application. The date indicated on the document must necessarily coincide with the date of submission of the application itself.

If there is a discrepancy of at least one figure, the court office may simply refuse to accept it and return the entire package of documents for revision.

The procedure for writing a statement of claim has other important nuances. That is why before proceeding with its preparation, it is imperative to consult with a qualified lawyer. This will avoid wasting time on finalizing the application or other actions.

If necessary, you can add additional sections to the statement of claim at your discretion - if this allows you to clarify the matter.

They may be:

Also follows:

Complete the application with the utmost care.
As much as possible without emotionally and briefly state all your thoughts, arguments.
You should avoid mentioning in the text of the application circumstances that are not related to the case.
You should not build complex speech structures, thoughts should be expressed concisely.

This will significantly simplify the consideration of the case by the judge, which will reduce the time before the appointment of a court session.

Attached documents

In order to initiate the process of litigation regarding the recognition of paternity in court through the court, it is necessary to submit the following package of documents to the office without fail:

If the father of the child died without having time to submit an application for recognition of his paternity during his lifetime, this issue can be resolved through the court by filing an application to establish the fact of recognition of paternity.

In general, the father of a child is defined as the person who is married to the mother of the child. If the parents are unmarried at the time of the child's birth, the father can prove his paternity by filing a voluntary application. If the alleged father of the child refuses to file a declaration of paternity, the child's mother may apply to the court to establish paternity.

Note!

In this example, we will consider a situation where the father of the child was not married to the mother, recognized himself as the father of the child, but did not manage to establish his paternity during his lifetime for various reasons.

Grounds for establishing the fact of recognition of paternity

When submitting an application for establishing the fact of recognition of paternity, the applicant, usually the mother of the child, must indicate the grounds for establishing this fact. This may be an inheritance, a survivor's pension, child benefits and social benefits for the death of his father.

Often the mother of the child simply wants the child to have a memory of his father. So that he knows who his father was, did not feel like "fatherless", officially received his father's surname and patronymic. Relatives of the deceased may also initiate recognition of paternity.

We recommend that you honestly and openly indicate in the application the grounds for establishing the fact of recognition of paternity. This will allow the court to involve all interested parties in the case, to listen and take into account their position on this issue. Otherwise, persons whose interests may be affected by the court decision will have the opportunity to file, at any time when they become aware of its issuance.

Preparation of an application for establishing the fact of recognition of paternity

When preparing an application, it is necessary to find out the position of the relatives of the deceased on the fact of recognizing his paternity, determine the exact grounds for going to court, take care of collecting appropriate evidence.

An important point for going to court is the absence of a dispute about the law. If there is a dispute between relatives, heirs and other interested parties about the right, which is subject to resolution in court if paternity is recognized, there is no point in filing an application in a special proceeding. Having found out the existence of a dispute about the right, the court will leave the application without consideration, inviting the applicant to apply to the court in the order of action proceedings.

Similarly, in an action proceeding, one should go to court if the alleged father denied his paternity during his lifetime. The defendants in this case will be the heirs of the deceased.

Interested parties in the application must indicate the citizens and organizations whose rights and interests may be affected by the court decision. These may be the parents of the deceased, his other children, heirs. As interested parties, indicate the Pension Fund, social security and social insurance authorities, to which, after the decision is made, the applicant will have to apply.

The 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 inherit after the deceased father;
for assigning to a minor the required pension for the loss of a breadwinner;
to compensate for the harm caused to the deceased citizen. This is possible, for example, when the death of a father is recognized as violent. In order to officially recognize the child as a victim in this situation, and, accordingly, entitled to compensation from the guilty person, paternity must be established.

Most often, the need for such an establishment of paternity after the death of the father himself is associated with inheritance problems. After the deceased citizen, who is the actual father of the child, the inheritance remains, and there is no will. As a result, neither the civil wife of the deceased, nor his child, in respect of which paternity was not documented during the life of the father, is not entitled to inherit, since they are not considered legal heirs.

Posthumous establishment of paternity is possible only through the court. The Plenum of the Russian Supreme Court, in a Resolution of 1996, noted that the Family Code of Russia, as well as the Code on Marriage and Family in force in the RSFSR, does 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 this 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 according to the current family legislation only in relation to children born not earlier than March 1, 1996, if the interested parties have an evidence base that reliably confirms the fact that a particular child is descended from a 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 lawsuit proceedings if the plaintiff has evidence certifying at least one of the circumstances named in Article 48 of the Code of Civil Procedure of the RSFSR.

Where to apply?

The legislation provides for two independent types of grounds for an interested person to file an application with the court to establish the paternity of a deceased citizen. Depending on these grounds, the established procedure for legal proceedings will also 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. First, a citizen could refuse to acknowledge his paternity. Secondly, the deceased might not have had time to make 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 mother of the child, dies before the baby is born. In this situation, it is necessary to litigate when there is a so-called dispute about the right 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 for a special procedure for legal proceedings.

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

Litigation

Litigation aimed at the posthumous establishment of paternity, when there is a dispute about the right, is initiated by the court on the relevant application of the mother, guardian (custodian) of the child, on the claim of a citizen or institution on whose dependency the minor lives, as well as on the claim of the child himself who has put forward the corresponding demand after they reach 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 very process of establishing paternity after the death of the actual father, if the latter did not recognize the fact that he had a child during his lifetime, practically does not differ from the judicial procedure appointed during the father's lifetime.

The main difference is the inability to hear the opinion and arguments of a citizen who does not want to acknowledge paternity, as well as the inability to conduct a genetic examination, which most reliably proves the existence 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 applies when the deceased father of the child is still before death, but the parties (the parents of the child) have not documented this. In this case, the judge appoints a judicial procedure, called in legal practice the judicial establishment 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 subject to three mandatory conditions:

the deceased father had to acknowledge the fact of the child's descent from him during his lifetime, which can be confirmed by evidence permitted by law;
the mother of the child and the deceased citizen did not register family relations;
the fact of recognized paternity is established in the courts according to the rules determined by the civil procedural legislation.

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

A dispute about the right arises when there are other, besides the child and his mother, interested persons, 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 the procedure for special legal proceedings, the court determines the existence of some kind of dispute about the right, the application is left not considered. In this situation, the judge issues a ruling that leaves the application to the court without consideration. The ruling must contain clarifications to the applicant and other interested parties about their right to resolve the disputed situation in the manner of action proceedings (3 part 263 of article of the Code of Civil Procedure of the Russian Federation).

It is unacceptable to use special proceedings if there are disputes about the legacy 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 claim proceedings. The claim is brought against other heirs, who will act, respectively, in the case as defendants. Considering such a case, the judge is obliged to determine the fact of the paternity of the testator and resolve the issue of the existence of legal rights to the inheritance left by the deceased father in the child, whose interests are protected by the corresponding claim.

The statement on the need for a posthumous establishment of the fact of paternity of legal significance indicates the purpose for which the applicant is trying to establish the relevant fact. Also, in the application, in support of the requirements, it is necessary to describe the attached evidence of paternity. In addition, even evidence is indicated proving the impossibility of the applicant to provide proper documentation or the impossibility of restoring some previously lost documents proving the fact of paternity.

The procedural legislation defines a number of circumstances that must be proven when applying to the courts with a similar statement on the posthumous establishment of paternity:

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

The most difficult of all the above circumstances will be to prove the fact that a deceased citizen acknowledges his paternity. You can use the evidence base to:

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

With the growing popularity of civil marriage, certain troubles are increasingly arising. Since 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 needs 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.

Ways to establish 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 recognition;
by means of a court decision;
posthumous establishment of paternity by court.

Voluntary recognition of kinship

It is established in the case of unregistered relations of common-law spouses. Together they submit an application to the registry office for recognition of paternity (maternity is recorded automatically). If the mother of the baby 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 apply only with the consent of the relevant authorities. It is important to get permission from the guardianship authorities.

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

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

Judicial establishment of paternity

Often there are situations that the alleged father does not want to recognize his minor child. Here, the mother can achieve justice only in court.

The Family Code was amended in March 1996. Therefore, if the child was born after the changes were made, the establishment of the fact of paternity is regulated by Article 49 of the RF IC. The court accepts and considers all the evidence presented, which 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 on other 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 housekeeping, as well as the cohabitation of common-law spouses at the time of pregnancy with the subsequent birth of a joint child. In establishing paternity, the law does not provide for time limits. You can apply to the 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 of recognizing a born baby as a dead person during his lifetime is not important here. Also, the establishment of paternity after begins only after the provision of evidence that certifies the fact of birth from a deceased person. This case applies only to children born before March 1996.

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

Reasons for establishing relationship

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

When the baby's parents were not officially married, and at the time of death, the alleged father did not recognize his own child.
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 order to establish kinship, the required claim, in addition to the mother, may be filed by some other persons. They 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 containing the minor sues;
Upon reaching the age of 18, the child himself can file a claim with the court.

Evidence that the court takes into account when making its decision

Article 55 of the Family Code of the Russian Federation specifies all admissible evidence that the plaintiff can present to the court when establishing paternity. These include:

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

DNA Paternity Testing

How is it done? Posthumous paternity is often only done after a test has been performed. To date, such cases are quite popular and more effective. A paternity test is carried out only after a court decision and in a specific clinic, which will be indicated. DNA analysis is carried out with strict observance of all sanitary and legal norms. In connection with the death of the father, experts use biomaterials of the next of kin. Parents or siblings can act as a source for collecting biomaterial for DNA testing for paternity. Also, specialists can use the blood tests of the deceased person, which he passed during his lifetime.

A paternity test gives a 99% chance, which will significantly increase the chances of a positive outcome for the plaintiff. After passing this procedure, the results are submitted 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 judgment issued. On the basis of a court opinion, a few days later, the mother receives a new certificate of paternity. With this document, a woman can claim bereavement benefits, as well as 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 legislative norms. If the mother or guardian of the minor is not aware of the entire procedure, it is best to contact an attorney or lawyer for advice. Because, in addition to the application, it is necessary to attach copies of some documents. If filed correctly, the court will soon take into account your situation and begin work. In the application, the mother must indicate all the data about the deceased alleged father and the joint minor child.

List of copies of documents required for consideration in court:

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

Objections to an application for establishing the relationship of a deceased person

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

In the event that the deceased alleged 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 proving justice is much more difficult. Despite all the evidence and testimonies presented, the court will require a DNA test. According to experts in the legal field of activity, if a counterclaim arises on the 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 business, and sometimes requires large financial costs. Therefore, establishing the relationship of an unregistered couple should be treated more responsibly. Because judicial practice marks the moments when the establishment through the court failed. It is not easy for a young mother to survive the current situation alone.