Paternity is not always established when your child is young. For example, when you and your child’s father marry, paternity is automatically established. When you all unmarried at the time of your child’s birth then paternity is not automatically established. In today’s blog post from the Law Office of Bryan Fagan, we are going to talk about how to handle the issue of paternity after the death of a father. This is an important subject that impacts families across Texas. To learn more about how the family impacts this situation, stay with us today.
A real-life example of paternity and the death of a father colliding
An appeals court in Texas two summers ago heard an appeal from a case where an adult man filed a lawsuit against his mother, his alleged father, and his alleged father’s estate. In Johnson County trial court (lowest court in the district court system) ruled in his favor. His mother appealed the decision of the trial court. The question that the appeals court answered was: after the death of the putative father can an adjudication petition transpire?
Examining the question of putative fathers and paternity
Before we get into what the court decided we think it is a good idea to unpack the issues of the case further. That way we all know what is going on when we start to look at the case and what it means for this family. The young man who won his case at the trial court level is just that- a man. He had filed a lawsuit against his mother, his deceased father, and the estate of his deceased father.
This lawsuit is important. Mr. Dart (the man in question) did so for two reasons: 1) he wanted a determination from the court whether he was the biological son of the man he asserted was his father and 2) that he was entitled to all the legal rights and privileges as a surviving child. Those legal rights and privileges include things like inheriting property, Social Security benefits, etc. There are massive consequences to being legally adjudicated as the child of a deceased person.
Trial involving a putative father and the parentage issue
The Texas Family Code has something to say about issues like this. Texas Family Code sections 160.507-160.509 relate to this subject. Specifically, the mother argued that paternity lawsuits cannot survive the death of the putative father. Putative just means something like alleged, supposed, etc. As we already talked about, the trial court here ruled in the son’s favor. The man in question, Lorne Ahrens, legally became the father of this man.
An appeal- can paternity be found in a case involving a deceased putative father?
We need to figure out what the Texas Family Code says concerning this subject. Section 160.603 of the Texas Family Code is clear about what parties exist in a lawsuit to adjudicate parentage. The mother and the man are joined in the same lawsuit. It is important for this kind of case that the word “must” is recognized. “Must” in a statute means that the requirement is mandatory.
Personal jurisdiction in a paternity case
A determination on paternity occurs when a court has personal jurisdiction over the man. In this situation, the putative father passed away more than four years before the filing of the lawsuit. The putative father had no notice of the lawsuit having been filed (obviously). This is crucial to understand because a court cannot gain personal jurisdiction over an individual without that person having been served with notice of the lawsuit.
As a result, under Section 160.604 of the Texas family code the putative father in this case was not determined to be the father of this young man. Different appellate courts have noted that their job is not to determine whether the law is a good one, or not. Rather, their job is to apply the law as it is written. As such, a deceased person cannot have paternity declared posthumously.
Multiple Texas courts of appeal argue in favor of allowing post-death paternity lawsuits
Compare this outcome to that of the Amarillo Court of Appeals’ decision in 1996 in the case In the Interest of A.S.L, 923 S.W.2d 814 (Tex. App. 1996). This case brought to the attention of the appeals court an issue that is not necessarily settled in Texas or any other state. Namely, whether a paternity lawsuit can be brought against an alleged father after he has passed away.
As far back as 1996, the Amarillo appeals court notes that things at that time were similar to now. Courts out of Tyler and San Antonio had both refused to allow and allowed, respectively, interested parties to pursue paternity lawsuits against deceased, alleged fathers. When lower or lateral courts have rulings in opposition to one another this is typically when an appellate court chooses to issue a ruling.
That is exactly what the Amarillo appellate court chose to do. It sided with the “let the lawsuit proceed” side of the argument. A child born to unmarried parents was allowed to proceed with a paternity lawsuit even after his alleged father had passed away.
Why did the Amarillo appeals court decide to issue this decision? It noted in the relevant part that the Texas Supreme Court has had a sensitivity in favor of children born out of wedlock without paternity having been established. This is a vulnerable position for a child or even an adult child to be in. Given that in a probate setting, there are many benefits to having paternity established both as far as family legacy and finances are concerned.
The probate code and the family code discussed
Importantly, the Amarillo court points to the Texas Probate Code not prohibiting this type of action. A biological child can inherit property from a man who is legally established to be his or her father. The analysis shifts to the Texas Family Code where the court points out that a suit to establish paternity can be brought as late as two years after a person reaches adulthood.
What had been the traditional stance of American courts on this subject?
Common law refers to the legal traditions of America and Great Britain dating back centuries. This area of the law derives its legitimacy from the legal customs of these countries as well as a judgment made law. This contrasts with most jurisdictions around the world which establish legal authority based on statutes or codes created by legislative bodies. In short, what prior courts said matters in the USA.
Children in America who are born out of wedlock are given the rights and status of their parents as children born within the confines of matrimony. The State of Texas certainly allows for paternity lawsuits when paternity is not established by other means at the birth of a child or thereafter. The Amarillo court argues here that if a paternity lawsuit were not allowed to proceed after the death of the alleged father, the illegitimate child would be denied the opportunity to establish who their father is under the law.
Establishing paternity is not only about establishing the duty for financial support. Many people assume that the only reason why a person wants to establish paternity is to then get that man on the hook for child support. It is true enough that child support can only be established once paternity is confirmed. However, there are reasons beyond child support why parentage is important. Among those reasons are inheritance and other post-death benefits available to the deceased person’s children.
Whether your parents were married when you were born is beyond your control
One of the major points brought up by the Amarillo court is that a child has no control over whether their parents are married at the time of their birth. This reality causes us to look at a case like this differently. A child born illegitimately whose alleged father passes away before paternity being established would be kept from ever being able to determine who his or her father was. This has huge ramifications. There is no compelling governmental interest, the court concludes, that is so noteworthy as to bar a child from bringing a paternity lawsuit after the death of their alleged father.
Social Security benefits and putative fathers
What happens with a man passes away before another person can file a lawsuit to determine parentage? This is the question that we have been asking ourselves today on this blog. So far, the general question posed in this case out of Johnson County, Texas is one that the 10th district appellate court of Texas has answered. However, other courts around the country have encountered similar questions. Let’s examine how one court out of North Carolina handled this issue.
Note that just because a court from North Carolina decided something does not mean that a Texas court is bound to follow that decision. A Federal District Court (higher on the legal totem pole than the Texas state appellate court talked about earlier) out of North Carolina has also handled subject matter related to putative fathers and the adjudication of parentage.
This case is Schafer v. Astrue. A child had applied for Social Security insurance benefits after a man (putative father) had passed away. The child was conceived using artificial insemination and in-vitro fertilization after the putative father had already passed away. The case involved this district court needing to figure out if a state court in Virginia (where the deceased individual resided) could have determined parentage under these circumstances.
Bottom line: no paternity determinations regarding deceased individuals
At the end of the day, the Texas appellate court determined that a trial court cannot achieve personal jurisdiction over a deceased individual. Paternity and deceased people do not mix.
Can you determine paternity after the putative father passes away?
Let’s take a hypothetical situation and see what comes of it regarding paternity and deceased putative fathers. Assume that you are a pregnant woman who comes in for a free-of-charge consultation with the Law Office of Bryan Fagan. Our experienced family law attorneys offer these consultations free of charge, six days a week.
You are pregnant and in the process of planning a wedding to the father of your child. The father of your child is a government employee who has benefits associated with the length of time that he has served in the federal government. Unfortunately, before you were able to get married the man passed away. This came out of the blue and was not something anyone was prepared for.
You understandably grieved this loss but an extended period. Three months after your fiance passed away you gave birth to your daughter. Determining paternity did not happen before his passing. Your fiance’s name was not added to the birth certificate for your daughter. She was born and now lives without a legal father.
Why not having a legal father is a problem for your daughter
There are survivor benefits available through the Social Security Administration among other places for your daughter. Additionally, as a federal employee, there are certain benefits available through your ex-fiance’s place of work, as well. All of this adds up to a serious headache for you and your daughter. Needing to unwind this ball of yarn in a major item on your to-do list? Figuring out how to help your child is job number one. You correctly identified how getting married to your fiance was the right move to make before his passing.
The reason for this is that there is no parent-child relationship connected to your daughter and your deceased fiance. Had you already been married to your fiance this is a different situation. Then, you are looking at a situation where there is a presumption of paternity that attaches to the birth of your child. The reason for this is that your spouse in that situation died nearby timewise to the birth of your child.
None of these organizations mentioned in this blog post, Social Security, or the federal employer of your fiance, are going to take your word that he was your child’s father. Therefore, any parent-child benefits for children of deceased individuals would apply here. You are not able to file an affidavit with them swearing that your ex-fiance is the father to your daughter. This is where your situation becomes murkier. Having experienced legal help is a huge boost to your case.
What does Texas law hold on this matter?
When it comes to benefits for your child, these federal organizations look towards whether Texas has determined paternity. Without a determination from the State of Texas, there is no recourse for your child. She would have to go without these benefits.
Given that your ex-fiancee’s name is not on your child’s birth certificate you need answers. An acknowledgment of paternity is one method to establish paternity in Texas. The acknowledgment of paternity is a document signed by parents who state that they are the parents of a child. Filling out this form before the birth of your child is possible. File it with the state Bureau of Vital Statistics and you are set. No need to attend any courtroom proceedings in this case.
Heading to family court to prove paternity
The other option to prove paternity in this situation involves going to court. A probate court exists as a possible avenue to seek relief in your situation. Probate courts do not deal with paternity, per se. However, they do handle matters related to death such as with wills and inheritance of property. A probate court is acclimated to handling matters related to deceased individuals.
Hiring an experienced probate and estate attorney, such as Megone Trewick with the Law Office of Bryan Fagan, is the way to go here. An application to determine heirship is the route to take here. Admitted evidence goes before a judge showing that all signs point to your deceased fiance as the father of your daughter.
This would not involve a request to adjudicate parentage, either. This is a lawsuit involving a request for the court to determine heirship on the part of your fiance. Who can inherit property from him as an heir? Filing a request to have the judge sign an order to update your child’s birth certificate is also prudent on your part. The benefits your daughter is entitled to are just a trip to probate court away.
More on petitions to determine heirship
An heirship determination is used to determine who the heirs of a person who has died are. Heirship proceedings are important when a person dies without a will. A petition is filed in probate court to determine who the heirs of the deceased are, if any. An administrator is appointed to handle the distribution of the estate’s assets.
Determining heirship is necessary when a person dies without a will or trust. A will not specifying heirs or if there are disputes on heirship then a petition to determine heirship is important, as well. An heirship determination is also used when language in a will is unclear. Improper execution of a will also matters when it comes to heirship determination.
Determinations of heirship are filed by different people. A surviving spouse or children of the deceased person file these petitions. As we have seen already today this is important for families to determine benefits and inheritance for deceased, putative fathers. Parents, siblings, and other relatives of the deceased file a petition. Finally, creditors of the estate who are interested in collecting money also file heirship determinations.
What are the steps involved in determining heirship in Texas?
First, you file a petition for determining heirship. A petition to file heirship demands filing in the county’s court where your decedent lived. Including information about the deceased person like their known relatives, date of death and other information is important.
After the petition is filed a hearing will be held. Part of this hearing is appointing an administrator. The main function of this hearing is to hear evidence regarding determining the heirs of the decedent’s estate. An administrator handles the management of the estate until all property is distributed.
The estate’s administrator provides notice to potential heirs and creditors about the estate settling process. Next, an inventory and appraisement occur. This involves taking note of all property owned by the estate. Then an estimate of the values of the property occurs. Once this stage is complete the court oversees the distribution process.
The importance of working with an experienced attorney
One of the main benefits of working with the Law Office of Bryan Fagan in a paternity suit is that we have experience both in family law as well as probate. Depending upon the circumstances involved in the case you may spend time in both family and probate courts. Instead of hiring two different attorneys, you can work with one firm. We serve families and individuals throughout the Houston area.
Thank you for choosing to spend part of your day with us here on the blog for the Law Office of Bryan Fagan. We post unique and informative content about the world of Texas family law each day of the week. We look forward to hearing from you and discussing further the services our office provides.
Where to go from here? Contact the Law Office of Bryan Fagan
Interested in learning more about the world of Texas family law? Contact the Law Office of Bryan Fagan today. We know what you need to succeed in a paternity determination case. Our attorneys are inside the family courts of Texas with our clients, day in and day out. We excel at negotiation, litigation, and every step in between. A free-of-charge consultation with one of our experienced family law attorneys is at your fingertips.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
