illegitimate child

Establishing the Paternity of a Deceased Father


Single parenthood, in recent years, has been increasing dramatically. Every year, there are more than a million children who were born to unmarried parents. This is becoming an issue when talking about a child’s mental and emotional development. Especially in cases involving the child’s legal rights and legitimacy, proving the paternity has been very crucial.

If the child’s parents cannot establish paternity, their child will grow up not having a legitimate father. This will, later on, raise concerns of discrimination between non-marital children and those children who were born to married parents particularly in the issue of inheritance.

The Texas Family Code enumerated the instances where paternity is already presumed.

When the child was born during the marriage, paternity has already been established between the father and child. All the conditions stated provide that the parents should be or has been married. One should go through a legal proceeding in order to establish the paternity of the alleged father of a child born out of wedlock.

How to Prove Paternity

The most common way to test paternity is through DNA testing. This is done by obtaining a tissue or blood sample from the child and from the alleged biological father.

Physical characteristics say a lot in identifying that a man could be the father of a child. However, DNA testing is the most plausible method in establishing paternity. Although it may be costly, the results would be reliable. The court acknowledges this as solid evidence.

Producing legal documents can also help to prove paternity. An example is a birth certificate which provides the name of the man who is allegedly the father.

Another possibility that could be used as proof is to show that the alleged father claims the child as his dependent. This is usually proven in payment of taxes. 

There are also some states that accept a shared surname between the child and the father. If there are any documents where the two shares the same surname, evidence can be established.

Death of Alleged Father

If the alleged father is still alive, it is not difficult to prove paternity, especially when he already claims responsibility. Circumstances like the death of the alleged father, however, may hinder this process.

As stated above, the court may order to get a sample of the DNA of the alleged father and the child. If the father was already deceased, the closest relatives can be an alternative. Other than the father, the alleged paternal grandparents can give a high degree of indication of paternity. In addition, alleged siblings from the father’s side may also undergo DNA testing.

On the other hand, the documentation discussed above can still be used to establish paternity when the alleged father is deceased. Remember that updating the birth certificate and the name of the child is important.

Note that it is best to seek legal advices on these matters. An expert could help you deal with your problems and queries better.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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