Establishing paternity after the death of the father: judicial practice, sample application to the court

​​​Establishing paternity after the death of the father is the only way to give a child the same rights as those born in an official marriage.

The little citizen is not to blame and should not be held responsible for the fact that his parents did not have time (did not want) to register their relationship.

In the article we will tell you in detail what, in what time frame, and who should take steps to establish paternity.

Purposes of establishing paternity

In reality, this is necessary so that the child (or rather, his legal representative) can exercise his rights to:

• the opportunity to claim the father's inheritance;
• receiving a survivor's pension;
• receiving compensation for the violent death of the father;
• restoration of family relations with relatives on the father’s side and amendments to the “Birth Certificate”.

For each individual person, any of the listed reasons can be decisive: someone thinks first of all about material gain, while for others the most important thing is the officially reinforced feeling of family ties with the father’s family. Having a father's patronymic and surname are not empty words for most of our fellow citizens.

From the point of view of legislation, and first of all, the Family Code of the Russian Federation, establishing the paternity of a person who is not married to the child’s mother is possible only in court.

Grounds for determining paternity and possible difficulties in doing so

The grounds for the claim are specific reasons for which the court hearing will be held. These are both material and moral-psychological grounds.

The specific course of the proceedings, the range of witnesses summoned to court and the required evidence depend on the purpose for which paternity is established. Therefore, the issue of indicating the grounds for a claim must be taken seriously and responsibly.

Court cases in this category can be divided into two types:

1. Cases when the father recognized the child, exercised parental responsibilities in relation to him, but did not have time to officially recognize his paternity;
2. Cases when the father did not recognize the child during his lifetime, or died without knowing about his presence (or before his birth).

Read also: Convention on the Rights of the Child in Russia

Depending on this, a court hearing will be held. In the first case, it will be shorter and simplified. In any case, only the plaintiff and witnesses participate in the hearings; defendants and third parties are not involved in the process.

Article 50 of the Family Code of the Russian Federation states that the establishment of the fact of paternity in the event of the death of the father is carried out in court, in compliance with the requirements of the civil process.

Article 50 of the Family Code of the Russian Federation “Establishment by the court of the fact of recognition of paternity”

Preparation for the trial and special procedure for legal proceedings

If the man actually carried out his paternal responsibilities, and there is evidence of this relationship, then the trial will be conducted in the form of special proceedings. In fact, the court will legally formalize confirmation of the situation existing in reality. A prerequisite for this should be the absence of possible controversial situations related to the recognition of paternity.

To determine the form of the trial, the purpose of establishing paternity is also important. Registration of a survivor's pension does not imply the presence of controversial situations, unlike inheritance relations with the presence of other heirs.

In addition to the child’s mother and himself, upon reaching the age of majority, his other legal representatives can go to court: guardians or trustees, representatives of the institution in which the minor child is, grandparents.

Sample

In general, the contents of the application should indicate the goals and grounds for recognizing a specific deceased man as the father of the child. The more fully the chronology of events is outlined, the faster the court will make a positive decision. It is necessary to indicate the purpose of establishing paternity, for example, the possibility of receiving a survivor's pension. The circumstances of the acquaintance and the period of cohabitation of the parents (if any), the fact of running a joint household, and the reasons why the couple did not register the child in the name of the father during his lifetime.

Everything should be stated clearly, without lyrical digressions.

Example

• To the Kamyshinsky District Court of the Volgograd Region
• Applicant: Ivanova Olesya Sergeevna,
• 403850, Volgograd region, Kamyshin city,
• Lenina street, building 8/2, apartment 15
• Interested parties: Ivanov Ivan Romanovich,
• 403850, Volgograd region, Kamyshin city,
• Lenina street, building 8/2, apartment 15
• Office of the Pension Fund for the city of Kamyshin:
• 403854, Kamyshin city, Mira street, building 1
• Department of the Civil Registry Office of the city of Kamyshin:
• 403857, Kamyshin city, Lenin street, building 15.
• STATEMENT
• on establishing the fact of recognition of paternity

I, Olesya Sergeevna Ivanova, was in a close relationship with Roman Petrovich Sergeev from June 2016 to February 2020. Starting from August 2018 until the death of R.P. Sergeev on February 19, 2020, we lived with him in a civil marriage, without registration with the registry office.

Read also: How to get single mother status

Around March 2018, I became pregnant, which I immediately told my husband. Roman was very happy and we jointly decided to have a child.

But, since both I and R.P. Sergeev have financial support. was not stable, we decided not to register the marriage and not to record him as the father on the child’s Birth Certificate.

Since a single mother receives increased social support from the state.

On December 15, 2019, our son Ivan was born. There is a dash in the “father” column of the Birth Certificate.

My de facto husband, Roman, picked me and my son up from the maternity hospital (which is confirmed by video footage), helped me care for the child, and visited the local pediatrician with him when I was sick (a request to call a pediatrician is attached). In the summer of 2020, we planned to baptize our son and at the same time register our marriage and the paternity of our spouse.

On February 19 of this year, my husband died in a car accident.

Due to the fact that my child is not officially the son of the deceased spouse, he cannot count on receiving social support measures due to the loss of a breadwinner. In addition, I want my son to know his father and not experience psychological and moral suffering from the unknown.

Guided by Art. 49, 80-81 of the Family Code of the Russian Federation, articles 131, 132 of the Code of Civil Procedure of the Russian Federation

Ask:

1. To establish the fact that Roman Petrovich Sergeev (born May 18, 1980, Russian citizen) is the father of Ivan Romanovich Ivanov (born December 15, 2019, Kamyshin).
2. Change the surname of Ivan Romanovich Ivanov to Ivan Romanovich Sergeev, indicate Roman Petrovich Sergeev as the child’s father in the birth certificate.

The following documents are attached to the application:

1. a copy of the child's birth certificate;
2. a copy of the father's death certificate;
3. documents confirming the circumstances (letters, notes, video footage of discharge from the maternity hospital);
4. a petition to call the local pediatrician as a witness;
5. copy of the application.

03/30/2020 _____________/Ivanova O.S./

Claim proceedings

By way of claim proceedings, the issue is resolved if there are controversial situations and (or) objections from the relatives of the deceased man.

The statement of claim is filed with the district court of general jurisdiction at the place of residence of the applicant (plaintiff). The right to file a claim belongs to the child’s legal representative, or to the child himself upon reaching adulthood.

The application is drawn up according to the same principles as in a special procedure, with the only difference being that the description of evidence must be approached from the point of view of the possibility of challenging it in an appellate court.

It is necessary to indicate compelling reasons for establishing paternity, for example, the right to inheritance of the father.

It is necessary to indicate in detail confirmation that the father renounced his relationship during his lifetime or that there are material disagreements with relatives on the side of the child’s father.

Read also: Registration of a newborn child

Statute of limitations

The testimony of witnesses proving the fact of the relationship between the child and the deceased man is considered as evidence. For example, the fact that at the expected time of pregnancy, the couple spent their free time together, clearly demonstrated their feelings to those around them, or even lived in the same room.

Genetic examination

The expert institution that conducts the examination is appointed by the court.

The conclusion stated in the expert report becomes the main and indisputable evidence in the case. Only in the most extreme cases, when witness and written evidence is not enough to establish the truth, and the father has no blood relatives, is exhumation of the body allowed.

After the court evaluates all the evidence presented on both sides of the case, it makes a decision.

According to the rules of the Code of Civil Procedure of the Russian Federation, all legal costs, lawyer services, expenses for conducting examinations and attracting specialists are paid (reimbursed to the winning party) by the losing party.

Consequences of a positive court decision

• the father's last and patronymic names;
• to receive a survivor's pension;
• the opportunity to inherit as a first-degree heir;
• to receive compensation for the violent death of the father;
• on family ties with relatives on the father's side.

Moral satisfaction from the realization that justice has been restored and the child has a father, albeit a deceased one, cannot be assessed and described in legal terminology.

Arbitrage practice

If we are talking about legal proceedings, the degree of persistence of the defendants protesting against the recognition of paternity is also important. Carrying out an examination, hearing numerous witnesses on both sides, considering written and photographic evidence takes a lot of time, and often ends in the denial of the claim.

All this suggests that the birth of a child must be approached with maximum responsibility, providing the newborn baby with full rights in advance.

Source: https://zakonoved.su/posmertnoe-ustanovlenie-otcovstva-poryadok-procedury.html

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

Home » Paternity and Maternity » Application for establishing the fact of recognition of paternity after the death of the father

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If the child’s father died without having time or without wanting to recognize his child, then his death should in no way infringe on the rights of the minor. A child born out of wedlock has the same rights to the inheritance of his deceased father, as well as to other payments due to him by law.

To officially recognize the fact of paternity, any legal representative can file a claim in court and thereby try to defend all the legal rights of the baby.

The need to recognize paternity after death

There are often situations when a man and a woman live in a civil marriage and a child is born to them, but the couple, for a number of reasons, is in no hurry to include the biological father in the baby’s birth certificate. As a result, the child has a father, but no legal documents confirm this. While the parents are alive, this fact does not in any way infringe on the rights of the child, but if a man dies before he has time to register the child as his name, then the legal recognition of paternity becomes significantly more complicated.

To restore justice, there is a special procedure for establishing the fact of recognition of paternity after his death. It is carried out so that the child can receive:

• survivor's pension;
• inheritance;
• compensation for damage if the father died in an accident or was killed.

Restoration and legal recognition of family ties between the father and the child can only be done by the court, and court cases on recognition of paternity do not have a statute of limitations. Moreover, to establish the fact of paternity, the legislation provides for a special procedure for considering lawsuits.

In some cases, a relationship can be established even before the baby is born. For example, a man is seriously ill and knows that he will die before the birth of the child.

In this case, he and the expectant mother have the right to apply to the registry office with an application to establish the fact of paternity of the unborn child.

In the document they will have to indicate the expected last name, first name and patronymic of the baby and voice the voluntary paternity of the future dad.

Of course, an entry in the civil status acts will be made only after the baby is born and the mother, having provided a certificate from the maternity hospital about his birth, receives a birth certificate.

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.

Read also: Transport tax debt: find out by tax identification number, car number, check

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:
   1. when the child was born;
   2. information about him;
   3. who is the biological father;
   4. an indication that the child’s parents were not officially married;
   5. why the father did not formalize voluntary paternity;
   6. date of death of the parent;
   7. facts by which it can be judged that the deceased man recognized family ties with the baby during his lifetime;
   8. listing evidence confirming the stated facts.
4. Then you need to indicate the grounds for satisfying the claims.
5. The next point should be an indication of the reason why the plaintiff wants to establish the fact of recognition of paternity and a reference to the articles of the Insurance Code that govern these circumstances.
6. Next comes the pleading part.
7. The last item is a numbered list of documents attached to the statement of claim, the date the claim was filed and the signature of the plaintiff.

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.

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:

1. 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.
2. The death of the alleged father. Confirmed by a death certificate, or by calling witnesses who have such a certificate.
3. 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.
4. Evidence that the deceased parent recognized his relationship with the child during his lifetime. The list of evidence on this point is presented above.

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.

FREE CONSULTATIONS are available for you! If you want to solve exactly your problem, then :

• describe your situation to a lawyer in an online chat;
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• call +7(499)369-98-20 - Moscow and Moscow region
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Source: https://ros-nasledstvo.ru/zayavlenie-ob-ustanovlenii-fakta-priznaniya-ottsovstva-posle-smerti-ottsa/

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

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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).

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).

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.

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

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

Download a sample application to establish the fact of recognition of paternity

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 an orphanage (in relation to a pupil of the organization) 4 Guardian of an adult incapacitated 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.

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;
• 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.

Read also: Transporting children on the train: tickets for infants, up to 5 years, travel without parents

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.

Contacting the registry office

Based on the court decision, changes will be made to the birth record. To do this, the plaintiff must contact the civil registry office at the place of birth registration, the MFC, or submit an application through State Services.

A mandatory requirement is to provide the original of the court decision with a note of legal force. After which, the citizen receives a new birth certificate. The document contains in the “Father” column the data of the deceased man.

The procedure for establishing paternity recognition is not easy. Independent actions can significantly increase the review period or cause claims to be denied.

If you do not have the necessary legal knowledge, then you need to involve a specialist. You can get initial legal advice free of charge on our website.

Just leave a request and a lawyer will call you at a time convenient for you.

• Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
• In 90% of cases, your legal problem is individual, so independent protection of rights and basic options for resolving the situation may often not be suitable and will only lead to a more complicated process!

Therefore, contact our lawyer for a FREE consultation right now and get rid of problems in the future!

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How to establish paternity after the death of a father?

Author of the article: Elena Plokhuta, lawyer,
reading time: 7 minutes,
updated:
October 29, 2019
Reads:
1776

According to Art. 50 of the RF IC, establishment of paternity after the death of the father is possible on the initiative of the mother or other legal representative. To do this, you need to collect evidence and submit documents to the court. Cases are considered using the provisions of Art. 264-268 of the Code of Civil Procedure of the Russian Federation, provisions of the RF IC and other legislative acts. The participation of relatives and the involvement of witnesses will be required, as well as the provision of a full package of evidence.

Is it possible to determine kinship?

Contents (click to open)

Based on Art. 49 and 50 of the RF IC, the mother of a minor has the right to file an application and establish a blood relationship with the deceased through special or claim proceedings. The case is being considered in court.

This may be required in the following situations:

• Participation of a minor in the inheritance procedure;
• Desire to establish biological relationship;
• To apply for a pension due to the loss of a breadwinner;
• To receive compensation payments if a man died from a violent death while performing his official duties.

Relatives' objection

The standard procedure for registering family ties through the court is accompanied by the participation of relatives of the deceased:

• parents,
• grandmothers,
• grandfathers,
• aunts,
• uncles.

Close men may object for obvious reasons: if a relationship is established, the plaintiff’s daughter or son will be able to claim the inheritance.

If you find yourself in such a situation, you need to rely on the judge’s opinion. Often, judges do not grant defendants’ objections without specific grounds; besides, you can present additional arguments and facts in your favor.

The decision can be made without a DNA test.

The marriage was not registered

Determination of blood relationship is required if the marriage of the biological parents was not concluded in the registry office. If a child was born during marriage or within 300 days after its dissolution, the father is automatically entered as the man with whom his mother is in an official relationship.

The man did not recognize the relationship

The refusal of the deceased to recognize himself as the father during his lifetime is not grounds for refusing to satisfy the application. The full answer is contained in paragraph 23 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated May 16, 2017 No. 16: if the father was not married to the mother of a minor, the case is considered through special proceedings taking into account the norms of the Code of Civil Procedure of the Russian Federation.

The plaintiff must present the facts.

They depend on the date of birth of the son or daughter, whose biological affiliation is proven:

• Born on March 1, 1996 or later. The provisions of Art. 49 RF IC. You will need explanations from the mother, testimony, material and written evidence, video and audio recordings, expert opinions;

Source: https://SocPrav.ru/ustanovlenie-otcovstva-posle-smerti-otca

Sample statement of claim to establish paternity after the death of the father

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Even if a child was born outside of an official marriage, he has the same rights as children born in a registered relationship. However, paternity has not been documented.

If the mother did not indicate the name of the biological parent when receiving documents for the child, she will have to write a petition to the court.

A statement of claim to establish paternity after the death of the father will help solve this problem, a sample of which will eliminate the need to contact a lawyer.

There are several situations when you can and should file a claim with the courts:

• during his lifetime, the person whom you consider the baby’s father refused any family ties with him;
• the child was born after the father died, unaware of the presence of a son or daughter;
• the mother hid the name of the real father of her children, but after reaching a certain age they wanted to know the truth;
• the father participated in raising the child, who now has the right to count on an inheritance.

It is necessary to file a claim in court simply to establish a fact that will entail certain legal and legal consequences. However, this must be done correctly.

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 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.

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.

Rules for filing a claim

The name of the court, information about the plaintiff, defendant and other parties to the case, as well as other information, must contain a sample statement of claim to establish paternity after the death of the father. The sample must also include the request part and a list of documents. But it’s worth starting with a statement of the situation that led to the need to file a claim:

• date of birth of the child;
• complete information about it;
• reference to biological father;
• were married or not at the time of birth;
• why he didn’t declare paternity at the registry office;
• when the biological father died;
• under what circumstances can one judge the recognition of family ties with the baby;
• evidence supporting this information.

The reasons why the deceased did not apply for recognition of paternity must be described in as much detail as possible. It will also be necessary to identify those situations in which the man recognized this fact. These include a person’s intentions, actions, letters, etc.

Next, refer to the grounds for satisfying the claim. Write why you want to establish the child's second parent. Here it is worth referring to the legislative norms governing this issue.

Typically these are family law provisions. The statement of claim, a sample of which can be found on the Internet, must end with a pleading part.

After it, a list of attached documents, the date and signature of the plaintiff are indicated.

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.

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:

1. There is insufficient evidence to confirm the relationship between the children and the deceased.
2. Relatives flatly refuse to acknowledge paternity.
3. The relatives of the deceased person insist on undergoing this procedure.
4. 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 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.

What happens after the trial is over?

When the meeting ends with the satisfaction of the plaintiff’s petition, regardless of whether the case was considered in a claim or a special manner, the son or daughter receives the legal rights of the child of the deceased person. These include:

• the right to receive and officially register the surname and patronymic of the deceased;
• the opportunity to communicate with all relatives on the father’s side (grandmothers, grandfathers, uncles, aunts, etc.);
• the right to a pension upon the death of the breadwinner and other material payments from the state;
• the opportunity to inherit the parent’s property and funds.

At the end of the court hearing, the plaintiff will have to submit a new appeal to the registry office, asking to change the information about the child. In addition, statements should be written to other authorities in order to exercise legal rights.

Although achieving a positive decision will not be easy. Much of the success depends on careful preparation, elaboration of the claim and other nuances. If there is a legal dispute, it is best to have a qualified attorney take part in the matter.

Otherwise, your chances of winning will decrease.

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Source: https://iskirf.ru/iski/semejnye-spory/ob-ustanovlenii-ottsovstva-posle-smerti-ottsa/

Establishing paternity after the death of the father: judicial practice, sample statement of claim

The sudden death of a father who did not have time or did not want to recognize his son or daughter during his lifetime should not infringe on the legal rights of a minor. When a baby was born out of wedlock, he can claim both the inheritance of his biological father and the government payments that he is entitled to.

To resolve this issue, the child’s official representatives should go to court and defend the right to receive everything that is due to him by law. This can be done with the help of lawyers or by filing a claim on your own to establish the fact of recognition of paternity.

The need to recognize paternity after death

Sometimes after the death of a person it becomes necessary to establish the fact of his relationship, namely paternity, in relation to the alleged children. When no legal documents confirm the relationship, the father has not established his involvement in the child during his lifetime, there is a special procedure that will help restore the truth.

The procedure for establishing paternity after a person has died is carried out for the following purposes:

• assigning a survivor's pension to minor children;
• inheritance claims;
• receiving funds for compensation in case of violent death;
• the desire to restore family relations and fill in “fairly” all the columns in the birth certificate.

Only the court has the right to restore family ties. For this case, the law provides a special procedure. Cases on recognition of family ties have no statute of limitations and can be initiated at any time.

In some cases (for example, when the father is seriously ill), the problem of establishing kinship can be solved in advance. Future parents, although not officially married, have the right to submit an application to the registry office even before the birth of the child.

It indicates his intended last name, first name and patronymic and registers voluntary paternity. An entry in civil status acts is made after the birth of the baby and the provision of the necessary documents.

Special proceedings

Posthumous establishment of paternity in this case is used when:

• the marriage between the child’s parents was not officially registered;
• paternity was not established during life;
• the baby was born after the father died, and he knew about the presence of pregnancy;
• the deceased agreed to voluntary paternity, but did not have time to formalize it.

When the biological father participated in the upbringing of the child during his lifetime, recognized him as his own, helped financially, or even lived with the mother, and no one disputes the possibility of restoring family relations, the procedure will take place according to a simplified scheme (we recommend reading: application for establishing the legal fact of family relations ). Such cases are considered by the court quite quickly, without conducting a genetic examination. As a rule, the involvement of a lawyer is also not required.

Collection of evidence

You have to convince the court that this deceased person is the father of the child. To do this, you need to support your words and the testimony of witnesses with material evidence.

If you have material evidence of recognition of your son or daughter as deceased, attach them to the file, this could be:

• certificate of cohabitation of common-law spouses;
• joint photographs and video materials;
• statements from the accounts of the deceased citizen, where it is clear that he provided financial assistance to the mother or child;
• correspondence via SMS or the Internet, social networks;
• letters, telegrams, postal orders;
• receipts for parcels received;
• statements, petitions for the placement of a child in a kindergarten, school, section, signed by the deceased.

Drawing up a statement of claim to establish the fact of paternity

The following can file a claim to establish paternity after the death of a father: (more details in the article: sample claim to establish paternity after the death of a father)

• mother of a minor child;
• guardians or trustees;
• other persons and organizations on whose dependency and care the minor is (orphanage, shelter, etc.).

If the child has reached the age of majority, his consent will be required. For persons deprived of legal capacity, it is necessary to request the consent of the guardianship and trusteeship authorities.

A claim for posthumous establishment of relationship (paternity) is filed with the magistrate’s court at the plaintiff’s place of residence. Mandatory items and additional evidence that must be present in it:

• be sure to indicate appeals to the judicial authorities (receiving a survivor’s pension, compensation for damage, etc.);
• describe your situation in detail, support your words with testimony of witnesses;
• it should not contain claims on the property of the deceased.

Attach to the statement of claim:

Sample application for filing a claim:

Claim proceedings

Claim proceedings are applied in cases where:

• the child was not born in wedlock;
• the deceased did not voluntarily recognize the child;
• the alleged father did not know that the woman was pregnant from him;
• the deceased denied having any connection with this child during his lifetime;
• there are hereditary disputes.

This is a more complex procedure for establishing paternity. In this case, they often resort to DNA research, so it drags on for a long time, and the case is heard several times.

Genetic examination

Genetic examination is prescribed during legal proceedings if:

• there is insufficient evidence of relationship, or it is insignificant;
• the relatives of the deceased do not accept the child and demand a DNA examination;
• the person filing the claim insists on researching the genetic material.

The costs of conducting a genetic analysis are paid by the party to the process that requested it. Material for DNA research is taken voluntarily from relatives of the deceased. If the putative father is still in the morgue at the time of the study, then blood will be taken from him for analysis. The examination is carried out in a medical institution appointed by the court.

Drawing up a statement of claim to the court to establish paternity

A claim to establish paternity after the death of the biological father is filed:

• mother;
• official representative (guardian, trustee);
• organizations that support a minor as their dependent;
• by the child himself when he reaches adulthood.

The claim is filed in the district or city court at the place of residence of the plaintiff or interested parties, who are relatives of the deceased. An application is drawn up similar to a document in special legal proceedings. The plaintiff's claims to the alleged father's inheritance should also be further described.

Attach evidence that will confirm that the deceased is indeed the biological father of your child, and that during his lifetime he denied the fact of kinship. If possible, attach evidence that there is a property conflict or that a corresponding process has been initiated with the relatives of the deceased.

Consideration of the application in court

During the trial, the judge will listen to all witnesses and evaluate the strength of the evidence. All dates will be checked for consistency and authenticity.

If the court finds the plaintiff's arguments convincing, then a positive decision on the claim will be made.

The party that loses the lawsuit fully pays for the services of lawyers, genetic testing, and other legal costs and reimburses them to the person who won the case.

When a child is recognized as the son or daughter of the deceased, regardless of what judicial procedure was applied for this, he receives all the legal rights of the son or daughter of the deceased:

• the child can change his patronymic and surname;
• he has the right to communicate with his new relatives;
• receives the right to a survivor's pension;
• the right to compensation when the father died due to the fault of other people;
• the child receives the legal right to be the primary heir to the deceased's property.

Arbitrage practice

In judicial practice, cases of recognition of kinship posthumously are not so rare. Typically, such processes are associated with property disputes or the assignment of child benefits. It is impossible to talk about what decision the court most often makes, since each case is considered individually.

When the alleged relatives are opposed to the child and the plaintiff, lengthy proceedings will be required. Most likely, genetic testing will also be involved. The difficulty of this situation is that the court does not have the right to force defendants to submit genetic material for research. That is why such claims, as a rule, remain unsatisfied.

It happens that the court makes a negative decision, not recognizing paternity of the deceased. The mother of a child who gave birth to a child outside of marriage, and he is not recognized as the second parent, should be careful in collecting documents and other evidence that will help prove the fact of recognition of paternity.

Source: https://SemPravorf.ru/deti/ustanovlenie-otcovstva-posle-smerti-otca.html