What are you to do if your child’s father passes away before being placed on the child’s birth certificate?
In general, when a child’s biological father passes away but is not named on the child’s birth certificate, the child may not be able to collect inheritance money, life insurance proceeds, or social security benefits from the father until paternity is proven.
Should the biological father die before being placed on the child’s birth certificate, the mother or another interested party will have to take additional steps to prove paternity and add the father’s name to the birth certificate.
This article will outline the steps necessary to establish paternity postmortem.
Step One – File a Petition in Family Court to Establish Paternity
To begin the process, the mother or other interested party must petition their local family court to establish paternity. This can be done even if the father is deceased.
This process will typically require the help of an experienced family law attorney. The attorney will file a petition with the court to establish paternity. This is a common petition in family court. A petition to establish paternity is simply a court proceeding used to determine who is the child’s father.
Tim’s Legal Tip: If the father has passed away, the court will likely require a hearing to see if there is reasonable cause to believe the deceased father is the biological father. This could be as simple as the mother testifying that she was in a sexual relationship with the deceased and believes him to be the biological father.
If the court finds good cause to believe the deceased man may be the father, the court will order postmortem (meaning after death) DNA testing on the child and the deceased man. It is not uncommon for a court to make this order, as the state desires every child to have two parents.
Step Two – Obtain DNA Evidence From the Deceased Person
Once the court orders DNA testing to be done, you will need to begin collecting DNA. This can be complicated when the potential father is dead.
DNA technology has come a long way in recent years. DNA can be collected from a blood card, hair follicles, or fingernail clippings.
It is not uncommon for coroners to collect blood from the deceased and place it onto a blood card. If you need a DNA sample from a deceased party that was buried or embalmed, you should contact the coroner to see if the coroner obtained a blood card.
If there are no hair samples or blood cards, and the deceased was not embalmed, you can ask the court to exhume the body. If the court finds good cause, the body can be exhumed by order of the court. The coroner can collect DNA samples from the deceased’s body.
If the deceased was embalmed and there are no hair or blood samples, you will be stuck with attempting to prove paternity by doing a genetic reconstruction. A genetic reconstruction test is a DNA test between relatives of the alleged father and the alleged child.
A genetic reconstruction test compares the DNA of the deceased father, mother, brother, or sister to the child to determine if there is a DNA match. This testing is not as accurate as DNA testing between the deceased and the child, but it can still be used in court to determine paternity.
Step Three – Obtain the DNA Test Results From the Lab
The DNA lab will perform the 21-marker genetic analysis on the specimens. The lab results are usually available within two to four weeks. The results can usually be emailed. The lab results will tell you if the deceased is the child’s father.
Step Four – Go to Court to Establish Paternity Postmortem
Once you have obtained the DNA test results, you need to have a hearing with the family court. The court will hear the mother’s testimony and review the DNA test results. If the DNA test results show at least a 98% chance of paternity, the court should issue an Order of Paternity.
This Order is an official finding that the deceased is the father of the child.
Step Five – Take the Order of Paternity to the Bureau of Vital Records
After you get the Order of Paternity, you will need to ask your local Office of Vital Records to change the birth certificate. This office will have you fill out a form to amend the birth certificate to add the father’s name. There will be a fee involved with this. After completing the form and paying the fee, the Office of Vital Records will issue a new birth certificate with the father’s name on it.
Once the father’s name is placed on the birth certificate, the mother can proceed to obtain life insurance, inheritance, and social security benefits for the child.
It is advised that anyone interested in this difficult legal process get in touch with a skilled family law attorney before attempting it on their own.