Home / Parents' rights / Statement of claim to establish the fact of recognition of paternity after the death of the father
Death often comes suddenly and carries with it irreparable consequences. If a man passes away without having time to recognize paternity, this deprives the mother and child of legal protection and limits the ability to exercise various rights.
Question My parents did not marry and at the time of my birth lived separately, in different cities. The mother put a dash in the “father” column on the birth certificate. But over time, the father returned to the family. Now he has died, leaving an inheritance in the form of an apartment and a village house. I could become the only heir. What should I do?
Answer
If during his lifetime your father did not have time to recognize paternity, this can be done after his death - in court if there are legal grounds and according to the established procedure.
Establishing the fact of recognition of paternity is necessary to receive an inheritance opened after the death of your father.
In this article we will look at all the features of the procedure for establishing the fact of recognition of paternity after death: how to correctly draw up a statement, what evidence needs to be prepared, how to file a lawsuit and take part in the trial.
✅ Grounds for establishing the fact of recognition of paternity
The circumstances in which a mother or child may need to establish posthumous paternity of a deceased person may vary. As a rule, this is necessary:
- for inheritance;
- for registration of pension payments for a child in the event of the loss of a breadwinner;
- to compensate for damage or receive compensation due to murder, death in the line of duty, death at work;
- to receive documents from the registry office.
A child who was not recognized by the father during his lifetime cannot become an heir, and the mother is deprived of the right to receive social benefits for child support after the death of the father and state protection.
When applying to the court for posthumous paternity establishment, it is worth directly and accurately indicating the grounds and motives for the application: inheritance or receiving a survivor's pension. This will allow the court not only to correctly assess the circumstances, but also to outline the circle of interested parties who should be involved in the trial. Otherwise, a court decision made without taking into account the rights of interested parties may subsequently be challenged as illegal.
In some cases, material gain (receiving payments or inheritance) is not important for the mother or adult child, and the motive for the lawsuit is the desire to restore a good name, preserve memory, obtain documentary evidence of kinship, or change the surname.
Expert opinion
Dmitry Nosikov
Lawyer. Specialization: family and housing law.
Grounds for posthumous paternity establishment:
- death of a man whose paternity must be established
- absence of marriage between the mother and the deceased man;
- absence of an entry about the father in the child’s birth certificate (or an entry from the mother’s words);
- circumstances that confirm the fact of recognition of paternity by the deceased man;
- impossibility of obtaining documents certifying the fact in any other way (Article 265 of the Code of Civil Procedure of the Russian Federation)
Who can go to court to establish the fact of recognition of paternity posthumously?
- mother of a minor child;
- adult child;
- guardian (trustee) of a minor child;
- persons who are dependent on a minor child
- guardianship and trusteeship authority.
Underwater rocks
Few people think about the possible disadvantages in the event of a positive decision and forcing the biological father to take legal responsibility for the child. Before filing a lawsuit, you need to carefully weigh the pros and cons.
Possible difficulties in connection with establishing paternity:
- the amount of alimony and financial benefits for a single mother can differ significantly for the worse;
- the defendant acquires equal parental rights to the child;
- the need for permission from the father to take the child abroad;
- emergence of rights to inheritance.
Important! To avoid the emergence of controversial issues, it is recommended to draw up an agreement between the plaintiff and the defendant in advance. Such a document does not require legal participation; it is sufficient to describe in detail the rights and obligations regarding the child and secure it with the signature of both parties.
The procedure for establishing paternity is a rather complex and costly undertaking. Before going to court, you should try to resolve the issue peacefully. Perhaps the defendant will cooperate and the matter will end in a mutual agreement. Otherwise, you should consult with a lawyer and get competent advice for a successful outcome of the case.
✅ Procedure for establishing the fact of recognition of paternity after death
According to Art. 50 RF IC and clause 4, part 2, art. 264 of the Code of Civil Procedure of the Russian Federation, the establishment of the fact of recognition of paternity occurs in court in a special proceeding - by means of an application to establish the fact of recognition of paternity.
The basic rule that allows you to go to court in a special proceeding is that there is no dispute about the law.
a legal dispute arises between the mother, child, relatives and other interested parties (for example, a dispute with relatives about non-recognition of paternity during life, a dispute about inheritance), submit an application to in a special procedure - inappropriate. Having established the existence of a dispute, the court will leave the submitted application without consideration and will recommend that you go to court in the manner of claim proceedings - by filing a claim to establish paternity.
In the absence of a dispute about the right, it is permissible to file a lawsuit in a special proceeding and consider an application to establish the fact of recognition of paternity.
Who can file such a claim?
According to the Family Code of the Russian Federation, the following may file a claim for recognition of paternity:
- mother or father of the child;
- the child himself (adult son or daughter) upon reaching adulthood (over 18 years old);
- official guardian;
- a person who has taken a dependent child.
Attention! If a claim is filed against an adult child, his written consent is required. If the child is incapacitated, such consent is given by the guardian.
✅ Preparation of an application to establish the fact of recognition of paternity
Before starting to prepare an application, you need to outline the circle of interested parties (for example, relatives who claim to receive an inheritance), determine the grounds for the judicial procedure, and prepare documents confirming the fact of recognition of paternity during life. To do this, you may need competent legal support.
An application to establish the fact of recognition of paternity, which is submitted to the court in a special proceeding, is drawn up in accordance with Art. 267 Code of Civil Procedure of the Russian Federation.
The form and content of the application must be as follows:
- Name and address of the court;
- Applicant details (full name, address);
- Data of interested parties (full name, address);
Interested parties are citizens or organizations, institutions, enterprises whose rights or interests may be affected by a court decision. For example, interested parties may be parents, recognized children, relatives of the deceased who also claim the inheritance, or the management of the pension fund, social protection and social insurance fund, which are obliged to calculate and pay a pension or death benefit.
- Circumstances that are relevant to the case (about the conclusion/divorce of a marriage between the child’s parents and the nature of the relationship, about the birth of a child out of wedlock, about recognition of the relationship between father and child);
- Evidence of recognition of paternity;
As evidence of acknowledgment of paternity during life, you can use photographs, videos, letters, printouts of online correspondence, checks and receipts, and other documents. From the evidence that the applicant presents in court, it must be clearly clear that the deceased recognized paternity of his son or daughter, did not hide the relationship from others, took care of his son or daughter, spent time raising his son or daughter, and incurred maintenance expenses , played the role of the child’s legal representative. In addition to documents and physical evidence, you can refer to the testimony of relatives, friends, neighbors, and co-workers who can confirm the deceased’s recognition of paternity in relation to a son or daughter, care of the child, upbringing and maintenance of the child.
Important! Interested parties cannot act as witnesses.
- Reasons why paternity was not recognized or established during life;
- Motives (purpose) of establishing the fact of recognition of paternity posthumously (for example, inheritance or receipt of social benefits);
- Data on the absence of a dispute, grounds for applying to court in special proceedings, data on the impossibility of establishing the fact and obtaining supporting documents in another way;
- Reference to the provisions of Art. 50 RF IC and clause 4, part 2, art. 264 Code of Civil Procedure of the Russian Federation;
- Request to the court: establish the fact of recognition of paternity posthumously;
- List of applications;
- Signature;
- Date of application.
A legally competent and reliable statement supported by documents is a significant contribution to the successful resolution of the case.
An application drawn up incorrectly, in violation of form or content (for example, without indicating interested parties, without supporting documents) may be left without consideration until the shortcomings are eliminated.
The application, from the content of which a dispute about the right will be discerned, will be left by the court without consideration, while the applicant will be explained the right to resolve the dispute in litigation proceedings (according to paragraph 3 of Article 263 of the Code of Civil Procedure of the Russian Federation.)
Procedure at the registry office
If the father is alive and voluntarily recognizes the child, although he is not in a marital relationship with his mother, you can contact the nearest registry office with a joint statement on recognition of paternity. This document is filled out by both parents and based on it, information is entered into the metrics.
It doesn’t matter when the man matures, before the certificate is issued, or when the child is already independent, voluntary consent is the same for all cases . An application for recognition of paternity at the registry office can also be downloaded from a specialized resource and filled out at home, in a calm environment, or you can take the form directly from the registry office and enter the data.
So, a man can fulfill his fatherly duty during his lifetime by plucking up courage and recognizing the child. And if fate decides otherwise, and he does not have time to legitimize the little blood, this can realistically be done even after his death. The main thing is that there is a desire.
The following video explains how to recognize paternity and the rules for filing a claim:
✅ Sample statement of claim to establish the fact of recognition of paternity
Expert opinion
Semyon Frolov
Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.
The sample proposed above was prepared by professional lawyers in accordance with the provisions of the Code of Civil Procedure of the Russian Federation, and in most cases can be used in the process of preparing your own application.
All you need to do is fill out the blank application form with personal information and concise, accurate, truthful and documented circumstances that must be brought to the knowledge of the court.
The application can be written by hand or printed using technical means. But be sure to sign.
If in the process of preparing an application and collecting documentary evidence you have questions, if you need help or personal advice from a lawyer, ask questions in the 24-hour legal support chat or call the hotline. We will advise you free of charge.
✅ Documents and evidence
The application submitted to the court in a special proceeding must be accompanied by documents confirming all the stated circumstances.
The full list of documents attached to the application is not defined by law, however, according to established judicial practice, it is worth preparing the following documents:
- applicant's passport;
- child's birth certificate;
- father's death certificate;
- evidence of family relationships and recognition of paternity during life (certificates of cohabitation, joint photographs, letters, printouts of telephone conversations and correspondence, checks and receipts for expenses incurred for the maintenance of the child);
- other documents (depending on the circumstances).
If the applicant does not have some documents (for example, the father’s death certificate is with relatives), he can submit a petition to the court to request the missing document (for example, to request an extract from the death certificate from the civil registry office).
The application and all attached documents must be submitted to the court according to the number of participants (including all interested parties).
What differences and features appear when applying for alimony payments at the same time?
Unfortunately, there are often cases when the father not only does not recognize the child, but also refuses any participation in his upbringing. A mother raising a child alone has the right to demand the collection of alimony in court, along with the requirement to establish paternity.
According to Art. 53 of the Family Code of the Russian Federation, a child has the right to care, education and financial support from both parents, regardless of whether the father and mother are married or not.
The responsibilities of parents include the full maintenance of a minor child, according to Art. 80. Based on this, the plaintiff, among other documents, files a claim for alimony, in which it is necessary to indicate:
- Full name of the plaintiff, defendant and child;
- state the essence of the matter;
- a request to establish the amount and terms of payment of alimony on the part of the defendant;
- date, number and signature.
The decision in the case of collecting alimony depends on the result of establishing paternity. If the result is positive, the defendant is assigned a monthly alimony payment amount, depending on earnings or other income. The responsibility to pay child support rests with the defendant until the child reaches adulthood.
Reference. Payment of alimony before filing a claim is excluded in this case. The mother or guardian has the right to demand financial compensation for child care only after the court makes a final decision on paternity.
