'My daughter's father died in accident, but he was not on birth certificate. How can I prove paternity'

 I have an 8-year-old daughter with an ex-boyfriend.

He recently passed away in a horrible accident. He wasn't on her birth certificate, but he helped pay for school things, and bought her anything she said she wanted.

He has an adult daughter from a previous relationship. His family doesn't know my daughter exists. He had a strained relationship with his family and, perhaps for that reason, he did not tell them.

Can I apply for survivor benefits on her behalf? I know by doing that I'll have to talk to his family, and likely allow them to visit my daughter if they're interested in doing so.

I don't want his life-insurance money - if he didn't leave any to our daughter - but survivor benefits would help pay for school things that he usually helped with.

The Mother

Dear Mother,

Once upon a time in America, children who were born outside of marriage were denied inheritance under the law. But those laws were effectively overturned in 1968 by the U.S. Supreme Court in Levy v. Louisiana. However, the laws still differ by state.

It would be wise to hire an estate lawyer to help you in this process. The statute of limitations varies by state after probate has been settled, so time is not your side. It's a stressful process, and you could risk putting it off indefinitely if you don't get the ball in motion today.

The term "survivor benefit" usually refers to a spouse who can claim 100% of their spouse's Social Security, assuming it's a higher amount, after their death. Your daughter, as an heir, may be entitled to certain benefits and a share of an inheritance, assuming you can prove paternity.

"Within a family, a child can receive up to half of the parent's full retirement or disability benefits. If a child receives survivors benefits, they can get up to 75% of the deceased parent's basic Social Security benefit," according to this detailed guide from the Social Security Administration.

If your daughter does not have a disability, your SSA survivor benefits will stop when they turn 16, the SSA says. If your daughter has a qualifying disability, however, your benefits can continue if you exercise parental control and responsibility for your child.

There are, of course, scenarios where your daughter may be excluded - if he left a will, specifically excluding your child. But even if he died intestate - without a will - or even if he left a will and never mentioned your child, you could certainly have a claim on his estate.

For instance, in California: "The court will not accept private genetic testing as evidence in a paternity case unless the test has been ordered by the court. If the court orders genetic testing, it will provide the named parents with the information they need to get the tests done."

DNA testing

In New York, a child born outside of marriage is considered the "legitimate child" of the mother. But you must once again at least provide testamentary evidence to show that he was the father of your daughter. It could include witness testimony and payments for the child's education.

Paternity in New York must be established "by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own."

Your case is obviously more complicated due to the tragic circumstances, and could also require DNA testing; in this case, you may have to enlist the help of a close relative of your daughter's father - a parent or sibling or child. This will likely come as a shock to his family.

You would likely need to bring a civil lawsuit to prove paternity. It's more difficult after the parent has died, and the burden of proof would lie with you. In the absence of his name on the birth certificate, records of his payments to your child would be one important example of formal evidence.

In Texas, for instance, the court may order genetic testing from a close relative - including parents, siblings or children - if the court considers the circumstances to be just and, as in your case, the parent in question is not available for testing.

"A court may not render an order under this section unless the court finds that the need for genetic testing outweighs the legitimate interests of the individual sought to be tested," according to this statute related to establishing paternity in that state.

People react differently, and his family's grief may influence how they respond. His adult daughter could, for instance, be happy for you to prove your daughter is her half sibling, and may see your child as a gift from heaven, as you must do every day.

Perhaps the strained relationship he had with his family can be turned into something entirely different. It may be your daughter ends up with an older sister, in addition to other benefits that she may be entitled to.

https://www.morningstar.com/news/marketwatch/20240309310/my-daughters-father-died-in-a-horrible-accident-but-he-was-not-on-the-birth-certificate-how-can-i-prove-paternity-to-claim-her-inheritance