Application to establish the fact of recognition of paternity after the death of the father (sample)

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).

What exactly and how will need to be proven in court?

In order for the court to satisfy the plaintiff’s claims, the latter will need to prove the following facts in court:

The presence of a child in respect of whom it is necessary to establish the fact of recognition of paternity after the death of the father. This fact is proven by the baby’s birth certificate, which does not have an entry in the “father” column.
The death of the alleged father. Confirmed by a death certificate, or by calling witnesses who have such a certificate.
There is no official marriage between the child's mother and the putative father. Confirmed by a certificate from the registry office stating that the couple was not officially married.
Evidence that the deceased parent recognized his relationship with the child during his lifetime. The list of evidence on this point is presented above.

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.

After the end of the trial

If the court satisfies the claims, the son or daughter receives all the legal rights of the child of his biological father, which include:

the right to bear the paternal surname;
the opportunity to communicate with all relatives of the deceased father;
the right to accrue and receive a pension for the loss of a breadwinner;
the right to compensation for damage (in the event that a parent was killed or died as a result of an accident or road accident where a third party was responsible for the death);
the right to inherit the property and funds of the deceased.

After receiving the court decision, the plaintiff must visit the registry office, hand over this document to the employees of the institution and apply to change the information about the child.

Claims for posthumous recognition of paternity in court are special. In each case, the fate of the child is decided and mistakes are unacceptable here, so each case is considered by the court individually. All the circumstances of the case are taken into account, the court accepts some evidence, and ignores some.

In cases where the relatives of a child who died on the side of the mother of a child, no special problems usually arise; it is a completely different matter if they are categorically against recognizing their deceased relative as the father of an illegitimate son or daughter. Therefore, it is advisable, at least at the first stage, when collecting evidence and drawing up claims, to seek help from an experienced lawyer specializing in cases of this kind.

You can get the help you need if you contact the specialists on our website. There are two ways to contact a consultant:

call the indicated numbers;
write a message online.

Our lawyers will answer your questions, tell you what documents you will need to file a claim in court, and, if necessary, help you draw up a statement of claim.

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Proper plaintiff

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

Proper plaintiffs

No.	Proper plaintiff
1	Mother of a minor child
2	Legal representative of a minor child (guardian, trustee)
3	Administration of the orphanage (in relation to the organization's pupil)
4	Guardian of an adult incompetent child
5	The child himself, over 18 years old

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.

How to prove paternity?

The process of establishing paternity itself is an extremely complex procedure. It is connected primarily with the fact that it is impossible to directly conduct a medical examination and prove the fact of relationship. Another difficulty is that the deceased cannot give any testimony, and if before his death he did not acknowledge paternity with the help of any document, then indirect evidence will have to be used.

So how can you prove a relationship between a child and a deceased father? There are not so many ways. Let's note the main ones:

Use written non-documentary evidence: emails, letters, notes, depositions, etc. An alternative may be audio and video recordings;
If genetic material is present, carry out the standard procedure;
Use documents that indirectly prove paternity - various deeds of gift, receipts and other papers;
Use the testimony of witnesses. Both relatives and third parties - teachers and educators, colleagues and friends, as well as citizens related to the deceased and his child can express their opinions.

Algorithm of actions

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

Collection of documents.
Preparation of a statement of claim.
Payment of duty.
Sending documents to court.
Trial.
Obtaining a court decision.
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:

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.
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.

Proof

Direct evidence is genetic testing. It is carried out at the initiative of the plaintiff or defendant, in some cases - at the request of the court, if other evidence provided is not enough to make a decision.

Other evidence may be used.

If DNA testing is carried out

When prescribing a DNA test, the following may serve as additional confirmation:

Joint photographs of the deceased father and the child;
Correspondence between a man, mother, minor;
Witness statements;
Video and audio recordings.

Legal advice: when filing a claim, it is better to immediately file a petition for the appointment of an expert examination. Biomaterials from close relatives of the deceased whom you want to recognize as the father will be examined.

If relatives refuse a DNA test

Relatives of the deceased have the right to refuse the test, which the judge may interpret not in their favor. When a case is denied, other facts will be used to make a decision.

If there are no relatives

In the absence of relatives, for obvious reasons, an examination is not carried out. To resolve the issue, any evidence presented by the plaintiff and defendant is used.

Issuance of an amended birth certificate

After the court’s verdict, you should go to the registry office in order to change the registration record and obtain new documents. You must have with you documents confirming this right:

the court's decision;
a document confirming payment of the state duty;
old birth certificate;
applicant's passport.

Civil registry office employees may additionally require a passport and power of attorney for the child’s representatives. After reviewing the documents provided, an amended birth certificate will be issued.

The death of the father of the family, who did not legitimize the relationship with the mother and did not recognize the child, occurs quite often. In such situations, mothers or official representatives have the right to write a statement of claim, which should outline the essence of the problem and their requirements. It is worthwhile to first resolve possible disputes with interested parties so that the proceedings take place in a shortened version. If the circumstances are positive, the case will be won in 1 meeting.

Recognize paternity: why is it necessary?

The law defines a list of cases when a woman cannot do without establishing the fact of relationship with her father. These include:

registration of pension payments in case of loss of a breadwinner;
compensation for damages in case of intentional deprivation of human life;
the need to register an inheritance;
receiving documents from the registry office.

If the child has not been recognized as a parent, he is not endowed with legal rights to the movable and immovable property of the father, and the woman is deprived of the opportunity to receive protection and means to support the children after the death of the man.

Recognition of kinship after the death of one of the parents is carried out by the court in compliance with the procedure established by law. The legislator considers the following grounds for recognition as a father:

Death certificate of a person whose paternity should be established.
Lack of marriage registration by the biological parent and mother.
The presence of arguments to confirm the circumstances that the man recognized his children.

The mother, guardianship authorities, and legal entities who support unrecognized children have the right to file this claim in court.

On what grounds is paternity recognized?

The sample claim must contain substantiated evidence of its own arguments. You should also add references to legal norms that confirm these grounds. The reasons for filing a petition with the court will be:

the need to obtain inherited property;
registration of a pension paid due to the loss of a breadwinner;
issuance of benefits and social payments for children;
official registration of surname and patronymic.

Other reasons may be given, depending on the specific case. For example, the mother of a child will want to leave a memory of the second parent. Or we will talk about the psychological side of the issue - the baby should not feel deprived without having an official dad.

Usually, the closest relatives of the child or relatives of the deceased make such demands. These may also be representatives of guardianship or trusteeship. An organization or other person (except for those already listed) who is dependent on the child has the right to file a claim. Such organizations include specialized institutions where children without parents are kept. In the application, it is better to immediately openly indicate the reason for filing the claim. This way, the judge will be able to involve all interested parties, hearing their opinions and making a fair decision. Otherwise, such persons can file a complaint as soon as they learn about the court decision.

How to establish a family connection with a person to receive an inheritance through the court?

To receive an inheritance that is divided between the relatives of the deceased, the applicant must provide the notary with evidence that he is a relative. Sometimes a situation may arise when there are no supporting documents: for example, if they are lost. To establish kinship and subsequent acceptance of inheritance, you can file a claim in court .

First, try to find or restore the documents yourself by contacting, for example, the civil registry office. The court will only accept the application if there is no other way to prove the relationship.

Who can apply?

Family relationships can be established between people who have a common ancestor. So, you can prove family relationships with parents, sisters or brothers, grandparents, aunts or uncles, and so on. It is impossible to establish a relationship with a husband or wife, stepfather and stepmother, stepsons and stepdaughters.

Where to contact?

The applicant must submit the application and the collected package of documents to the district court at his place of residence.

How to fill out a claim?

The application to establish a family relationship is filled out in free form:

In the header of the application, you must indicate the name of the court, the full name of the applicant and the interested person (usually a notary involved in the division of the inheritance).
In the text of the application, indicate the expected degree of relationship, information you have about relatives, evidence of relationship that was collected and the reasons why establishing the relationship was needed.
For example, you can compose the text like this: I, (insert your name) and (insert the name of a relative) are (indicate the degree of relationship). I do not have documents confirming our relationship for the reason (specify the reason). It is not possible to restore documents independently through the civil registry office for the reason (specify the reason).
I can confirm our family relationship with the following facts (list all available documents and evidence, including the names of witnesses). The need to establish the fact of relationship arose for a reason (specify the reason).
Next, formulate a request to the court to establish a relationship based on the evidence provided. For example: Please establish that I (insert your name) am (indicate the degree of relationship and the name of the relative).
Next, list the attached documents, indicate the date of the application and signature.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 350-29-87Moscow

What documents can I provide?

The court may consider the following documents as evidence of relationship:

birth, marriage or divorce certificates;
certificate of name change;
certificates of family composition;
references from archives;
extracts from the house register;
documents from work;
results of genetic testing (we talked about genetic testing here);
Photo and video;
testimony of other relatives, neighbors, colleagues, etc.;
letters, telegrams, SMS messages and other types of correspondence.

Costs and processing time

When filing an application with the court, you must pay a state fee. Its size is determined by the Tax Code of the Russian Federation (clause 3, clause 1, article 333.19) and for 2022. is 300 rubles. for individuals. In general, on the basis of Art. 154 of the Code of Civil Procedure of the Russian Federation, the period for consideration of the case is two months from the filing of the application. If there is a need to find additional evidence or clarify those provided, this period may be extended.

Case review process

Establishment of paternity is carried out by the court and is carried out in two ways:

The man recognized the child, but during his life he did not legally formalize paternity.
The biological parent did not want to acknowledge the children or his death occurred before their birth.

For both cases, a prerequisite for going to court must be the absence of legal marital relations between the parents.

It is also important to note that establishing a connection with the father is carried out for both minors and children who have reached the age of majority.

Special procedure for considering the case

The court will consider the case in special proceedings in accordance with Article 50 of the Family Code. The key factor for consideration under this procedure is voluntary paternity - recognition of the child as having died while alive, but not having documented this fact in the manner prescribed by law.

Recognition of family ties in special proceedings presupposes a simplified procedure for consideration. The plaintiff must provide the court with evidence of the parent’s participation in raising the children and financial assistance to the mother. In addition, the court accepts documents confirming cohabitation. In court, it is necessary to prove the facts of the birth of the child and the death of the father. For this purpose, appropriate evidence is provided.

The procedure for this procedure takes little time, and genetic analysis is not carried out under this procedure.

Features of filing a claim

When preparing a statement of claim, the document must be processed with special care. This way you will increase the chances of its satisfaction in the courts. The petition must be submitted to the district court office located at the plaintiff’s permanent residence address. You may submit an application to:

mother of the child;
son or daughter upon reaching adulthood;
guardianship authorities and other persons who have their own interests in the case.

When filing a claim, there is no need to pay a state fee, since it is filed to protect the interests of the child. No more than two months are given for consideration. When a decision is made, it comes into force after 30 days. After this, you should submit an application to the registry office so that they change the information about the birth of children and draw up new documents.

If all the necessary information is indicated in the petition, references to laws and relevant circumstances are given, all parties are notified, evidence is identified and the rules for filing the application are followed, the consideration of the issue can take place during one meeting. In addition to the petition, you can submit a short report with circumstances proving the need to satisfy the requirements. Although it is better to make it part of the claim.

When is genetic testing necessary?

As a rule, the sample statement of claim to establish paternity after the death of the father does not contain such information; the sample includes only general information. However, sometimes it is necessary to conduct an examination, especially if:

There is insufficient evidence to confirm the relationship between the children and the deceased.
Relatives flatly refuse to acknowledge paternity.
The relatives of the deceased person insist on undergoing this procedure.
You ask to organize the examination yourself.

At the request of one of the parties, the judge may order these events. The costs in this case will be borne by the party requesting the procedure.

The biological father, given the fact of his death, cannot provide genetic material. Therefore, samples are taken from his relatives. Although this procedure is voluntary, and relatives have the right to refuse DNA analysis. At the same time, the consideration of the case is delayed, meetings are postponed, and doctors have to be involved. However, the funds spent on the services of experts can be recovered from the losing party at the end of the trial.

What is this procedure?

Posthumous establishment of paternity or relationship is the process of confirming the relationship between father and child, or between relatives who have common ancestors. The cause most often is hereditary or other material disputes.

Establishing paternity after the father has died is important for protecting the child both formally and financially. The regulations for posthumous paternity establishment are described in the Family Code of the Russian Federation. The procedure is carried out in court according to the rules of civil procedural proceedings.