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.
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.
A North Carolina District Court rules on Texas law
To make this case even more confusing, it was a court in Travis County where this lawsuit was originally filed. Once the man had passed away an attorney for the child applied for the child’s insurance benefits through the Social Security Administration. As you may have guessed, the Social Security Administration denied the application for benefits. An appeal followed. The court that heard the appeal answered this question: could a court in Virginia have determined that the child was legally able to inherit property from this man based on a Travis County court determining that he was the father to this child?
Keep in mind that the court answering this question is not a Texas state or even federal court. It is a district court out of North Carolina. The federal court held that the Travis County court did not issue a decision which Is in line with Texas state law. The reason for this should be familiar to us. The appellate court held that the Texas district court did not have jurisdiction over all the persons governed by the judgment. The Travis County court did not have personal jurisdiction over the Virginia man since he had passed away at the time of the lawsuit.
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.
Taking the first step in a probate or family law case is the most difficult. Allow our attorneys to walk with you during this time.
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.
