How to Establish Paternity After Father Dies

RESULTS: Establishing Paternity

I recently had a young lady come to my office with a legal issue that revealed a strange quirk about Texas Family Law when it comes to how to establish paternity after father dies.

My client, let’s call her Jen, became pregnant with her first child.

She was preparing to marry the father, who was a military service member.

But during Jen’s pregnancy, he suddenly and unexpectedly died.

About 4 months after his death, Jen gave birth to a healthy boy, but he was born with a legal disability: his biological father was not available to sign his birth certificate. So according to Texas law, Jen’s child was born with an unknown father.

This is a real problem because the child is entitled to certain survivor benefits through the father’s enrolment in the military, but the parent-child relationship was never established between father and child and the military won’t just take Jen’s word on the matter.

Texas law has a process for determining the parent-child relationship when a father is not named on a birth certificate; there are several ways to establish paternity (ex. Married at the time of birth, signed Acknowledgement of Paternity, etc.) the last (most expensive) option is to just go to family court and prove to a judge that the dad acted like he was the dad, doing certain things only dads would do, for a sufficient period of time after the birth of the child.

But strangely, if a father is deceased before paternity is established, the Texas Family Code says family court can’t solve that problem. A recent appellate court case discussed this issue: see In re Dart, 648 S.W.3d 652 (Tex. App. [10th] 2022) ((Download Here))

So, does that mean it’s impossible to change a birth record after a father dies?
I don’t think so.

The Texas Administrative Code establishes the laws around birth and death records (Chapter 181) and notably, it doesn’t say that only a family court can change those records, it merely refers to a “court of competent jurisdiction.”

So, in order to help Ms. Jen with her child’s parentage problem I took her to probate court, the court that deals with wills and inheritance. Dead people are no problem for that court.

I filed a Petition to Determine Heirship for Jen and our evidence was sufficient for the judge to find that Jen’s baby is an heir of his father, which means he’s his son, and I’m certain the probate judge will have no problem signing an order to change the child’s birth certificate to add his father – which will give Jen’s baby the benefits to which he is entitled.