Establishing Paternity After the Father's Death — is it possible, and how?

The question of paternity does not cease to be legally relevant even after the presumed father has passed away. The death of the presumed father is not an obstacle to establishing his paternity in court proceedings.

When does this question most often arise?

In practice, this issue most commonly arises in a few situations:

• a child was born out of wedlock and the biological father, during his lifetime, never gave a statement acknowledging paternity before a registrar, guardianship authority, court, or notary public, nor acknowledged paternity in his will
• a child was conceived in a non-marital or romantic relationship and the father passed away during the mother's pregnancy, or was no longer alive at the time of the child's birth
• doubt exists over the paternity of a child born during a marriage, or within 300 days of the marriage ending through the husband's death (where the mother has not remarried), given that the law presumes the mother's husband is the father — a presumption that is later challenged through a claim contesting the paternity of the father recorded in the civil registry, combined with a claim to establish the paternity of the biological father

Who can bring the claim, and within what time limit?

A claim to establish paternity after the father's death can be brought by the child and the mother.

The child may file the claim regardless of any time limit — the child's right does not become time-barred.

The mother may file the claim within one year of learning that the man she considers the child's father did not acknowledge paternity, and no later than 10 years from the child's birth.

Against whom is the claim filed if the father has died?

Since the presumed father has died, he cannot be a party to the proceedings, so the claim is filed against his heirs.

If the man whose paternity is being established after his death has no other heirs, the claim is filed against the Republic of Serbia as heir.

The law prescribes strict requirements as to who must be a party to the proceedings, so care must be taken to include all relevant persons in the claim. Failing to do so may result in the claim being dismissed or, in certain cases, deemed withdrawn.

What does the procedure itself look like?

Given the sensitivity of the matters being determined, the public is excluded from these proceedings. Unlike ordinary civil litigation, this procedure is governed by the so-called "inquisitorial principle." This means the court may establish facts even when they are not disputed between the parties, and may independently investigate facts that neither party has raised. In other words, the court does not rely solely on the evidence proposed by the parties.

How is paternity proven after the father's death?

Since the father is no longer alive at the time these proceedings are conducted, and testing him is therefore not possible, paternity can be proven in a number of ways:

• witness statements
• documentation (e.g., a school record or medical file listing the father's name)
• information about the relationship between the mother and the man alleged to be the father
• DNA analysis of close relatives
• exhumation of the deceased's remains
• photographs and letters
• other relevant means

It is important to note that these are not mandatory forms of evidence in every case — the need for specific evidence is assessed individually in each particular case.

Although the defendants in such proceedings are not permitted to admit the claim, nor may the parties enter into a court settlement, the fact that the defendants do not contest the claim and its allegations can, in practice, sometimes help such proceedings conclude more quickly and efficiently.

What are the most important consequences of establishing paternity?

Establishing paternity after the father's death produces serious legal consequences, the most important of which are:

• inheritance-law consequences — a child whose paternity is subsequently established acquires the right to inherit from their father. In this regard, if the probate proceedings following the father have already been finally concluded, the probate court will direct the child to pursue their right to inherit through civil litigation. If the probate proceedings have not yet concluded, the child holds the status of a statutory heir of the first order of succession under the Law on Inheritance
• registration of the father in the civil registry books