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What to do when the father dies before his child is born?

One of the most tragic situations that a family can go through involves the birth of a child whose father has passed away. While the birth of the child is sure to be an exciting time, this will be a muted celebration due to the nature of the father having passed away from either a natural cause, an accident, or an illness. In this situation, whether you are the mother of the child, the child, or the father's family, there are rights to consider as well as steps that can be taken to protect the child, establish paternity and bring closure to a situation which may not have much of it to offer at the moment.

Paternity – establishing and disputing

When a married man’s wife gives birth to a child, it is presumed that this man is the father of that child. This is true even if the man and woman obtain a divorce, but the child is born within 300 days of the divorce being filed. When a child’s father dies before his birth that is a sad and interesting question to be confronted with, that of how paternity can be established. DNA testing would need to be done within a paternity lawsuit. Family members of the deceased father would need to be DNA tested against the DNA of the child to have paternity verified. If paternity were uncontested this may not be necessary (especially if the father and mother were married).

However, if there is a situation where paternity is contested then a court order may need to be obtained where you and the father’s family can go to court to establish paternity of the child. The man’s family may not want the child to be able to inherit money or other items from the deceased man. In addition to being able to inherit property from a deceased father, being able to establish paternity allows for several other benefits for a child.

Social Security benefits are one major source of income for a child if a parent passes away before the child reaches the age of 18. In that case, your son would be able to inherit money under the name of his or her father. If his father was receiving Social Security disability or retirement benefits, then in most cases your child will be able to receive 50 percent of those benefits. On the other hand, if your child's father was working for long enough before their passing and paid Social Security taxes then your child will be able to receive 75% of the number of benefits that his deceased father had been receiving.

Another major benefit available to your son, if he can have paternity established, would be an understanding of what major medical issues have impacted the life of his father. Some people suffer from hereditary conditions which can become debilitating if a disease sneaks up on someone. In that case, it will be helpful for the young family to know what sort of conditions to watch out for.

There are also emotional and relational benefits that come with being able to establish paternity. Your son may spend years trying to figure out who his father truly was and what kind of man he became once he started to realize that he was going to grow up without a father. In that case, you may want to establish paternity as soon as possible so that your son can have a firm level of background knowledge about his father. While a child can develop a family bond later in life it is easier to do so sooner rather than later. While it is possible to establish this type of family bond later in the life of your child it is easier and more practical to do so at the beginning of his life.

More about DNA testing family members of the father

DNA testing is the most direct route that a family can take to confirm the paternity of their child. Even if a father is alive at the time the child is born this is a good route to take if there is any question about who the father of the child is. Specifically, it is simpler to do this when the child in question is a boy rather than a girl. The way that genetic testing works these days is that the results of a DNA test can be obtained through testing family members of the deceased father. Specifically, male family members of the deceased will be tested. This is because Y chromosomes are passed down from generation to generation within a family almost unchanged.

Is important to be able to prove paternity after the death of a father there are still financial benefits for the child when it comes to establishing paternity. It may be, for example, that the father of your child has drafted a will that named your son as beneficiary. Leaving gifts, property, or assets to your son could mean that biological testing must first be done to confirm the legal relationship between these two people.

Adding a deceased father's name to a birth certificate

Another situation that may be relevant to your family is if you as the child's mother would like to add the deceased father to the birth certificate of your child. When you have a deceased father then this is an especially complicated situation. Keep in mind that there is no legal presumption that your baby's deceased father is the father of the child if you and he were not married. It is not a given, therefore that the child's father's name will be included on the birth certificate. Not having the father's name on the birth certificate presents additional challenges and problems when it comes to inheriting money from the father's estate.

In typical situations, an Acknowledgement of Paternity can be obtained through the Office of the Attorney General in Texas. This form acts as a means of establishing paternity when two parents can agree on this subject. Once a biological father and mother have signed the Acknowledgement of Paternity it becomes a legal and binding document. This means that the two of you do not need to go to family court to establish paternity. However, if your child's father passes away before he or she is born, then are additional complicating factors to consider in this situation.

A petition to establish paternity would need to be filed in a District Court where you and your child reside. Once paternity is established through this case a copy of that order would need to be filed with the Texas Department of State Health Services. At that point, the state of Texas would be able to add the deceased father to your child's birth certificate. This is not a simple process, and it involves multiple steps and processes. Rather than undertake this journey on your own it is recommended that you contact and work with the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how are your family's circumstances may be impacted by the filing of a divorce or child custody case.

Why does disputed paternity matter when a father predeceases a child?

When you run into a situation where your child is not able to have a legally established parent-child relationship with his or her father, that presents several hurdles which appear between your child and the potential benefits to which he or she otherwise would be entitled to. If the father died without a will, then a probate court would follow the laws on intestate distribution of property to divide up the property and assets that the father owned. Typically, only immediate family (counting children) can inherit from a deceased individual. A child who is the biological offspring but not the legal child would not be able to inherit from him. Social Security also offers supplemental security income benefits to the minor children of a deceased parent. Again, these benefits are not available to a child who is not legally recognized as the father's child. Therefore, this is not an issue that you can afford to overlook or set aside to be performed later.

This is also a situation that can impact you as the mother of a child whose father has predeceased him or her. It is not simple to establish paternity for a child when you were not married to the child’s father when he passed away. Not only do you have to deal with the consequences associated with the family law aspects of this discussion, but you also may become involved with the property and asset distribution side of things from a probate perspective. What you need to watch out for is a situation where the father's family does not allow you any input into the circumstances surrounding the distribution of his passing. If a family member has begun the probate process, then you would need to intervene in that lawsuit so that the potential rights of your child can be protected.

Both situations should underscore just how important it is for you and your child's father to take care of business while you can both from the standpoint of establishing paternity as well as when it comes to ensuring that both of your estates are properly planned for. Odds are that a man who is expecting a child is of an age where he was not expecting to pass away. These events can come suddenly. Once a father is deceased no estate planning nor family planning can be performed, as a result, it is necessary to take advantage of the time that you must get ready for your child.

The Law Office of Bryan Fagan is uniquely suited to assist you and your family in this area. We have an experienced team of legal professionals who work in family law and estate planning. Contact us today if you need to learn more about how we can help you handle both of these areas of your life with care and consideration.

What kind of testing can be administered to confirm paternity?

This is a relevant question to ask, given that when a father passes away there is no longer an opportunity to obtain his genetic material which is normally utilized to confirm or establish paternity in a family law case. Genetic testing will still play an important role in determining paternity for your child- especially in circumstances where there is a legitimate dispute over who is the father to your child.

When we talk about genetic material and testing what we mean is DNA testing- which you may be more familiar with. What DNA testing provides to people in your situation is the ability to confirm paternity even when obstacles exist- like the recent passing of the child's father. You can file requests along with the petition to establish paternity which asks a court to order the genetic testing of an immediate family member of the child's biological father. You can ask your attorney about the specific process that a court will follow to establish paternity. In most cases a judge will take into consideration all available evidence, including DNA test results, documents from medical providers, and witness statements, to have as much information available as possible to evaluate the case.

What needs to be true for you to be able to add a deceased father to your child’s birth certificate?

A court order will be necessary for you to add the father's name to your child's birth certificate. This is something that you can obtain after proving the parent-child relationship in court during a paternity hearing. Additional forms may be needed, as well, such as a copy of the father's death certificate. Once you have all these forms and documents ready you can contact your home county to determine whether any additional information or documentation is necessary to update the child’s birth certificate.

Before you decide to skip over this last step in the process once you are successfully able to establish paternity, think twice. Many of the benefits which we talked about earlier in today’s blog post will require that you provide them with a birth certificate for your child as means of proving that legal relationship to inherit property. If you will be immediately transitioning from a family law case to a probate case after paternity is established, then having a copy of the death certificate (if available) as well as a revised birth certificate (if available) can be critical. If nothing else, an application to amend a birth certificate as well as a paternity order would be smart to have in your back pocket.

Final thoughts on establishing paternity for a deceased father

This is a situation that no parent ever hopes to find themselves in. If you find yourself in a circumstance where you have a small child at home, but his father has passed away then you may feel like you are all alone with a mountain of difficulties piled up at your doorstep. Nobody is going to tell you that you do not have challenges ahead of you. However, these challenges are not going to go away just because you ignore them.

Ultimately, it is your child who stands to suffer the most if you do not follow through with the type of steps that we have outlined in today's blog post. Growing up without a father is hard enough without having the financial benefits of Social Security and an inheritance available to him. These are the tip of the iceberg when it comes to benefits for your child. Not included in today's blog post are the emotional, relational, and familial benefits of establishing paternity for your child. If your child knows who his father is then he will have a better sense of himself and the world around him. Instead of wondering who his father is, your child will know and that can help him find his place in a world which can seem uninviting to a small child who does not know as much as he would like about his father.

We hope that today’s blog post has been informative and helpful. Again, the attorneys with the Law Office of Bryan Fagan are here to help you. If you are struggling with a situation similar to the one that we have been discussing today, please do not hesitate to reach out to the Law Office of Bryan Fagan today.

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