Were you unmarried at the time of your child’s birth? Do you want your child to inherit your assets when you die? Consider this; in North Carolina parents have to follow a specific path for their children to gain the right to inheritance. It is not automatically assumed that just because you are the child’s parent, they can inherit from you. If you do not follow any of these paths, then your children will not be able to inherit any of your property when you die. Even if you are listed on the birth certificate as a parent, that is not enough to create a path to inheritance.
In North Carolina, unmarried parents at the time of birth have to follow specific paths to gain inheritance. The right to inheritance comes from a child being legitimized in the eyes of the State of North Carolina. There are currently four options to legitimize the child: marry the mother after the birth of the child; initiate a legitimization proceeding; legally acknowledge yourself as the father of the child; or file a paternity suit.
Marry the Child’s Mother After the Birth of the Child
If the father marries the mother of the child at any time after the birth of the child, then the child is legitimized.
For example, if Betty gave birth to John’s child before marrying John, and then subsequently married John, then the child would be legitimized. This option is not feasible for many because parents often never get married.
Initiate a Legitimization Proceeding
The father may institute a legitimization proceeding if the parents do not wish to get married. To file a legitimization proceeding, the father must file a verified petition. If the mother was not married from the time of conception through birth, then the mother must be named as a party and be properly served notice. If the mother is, or was, married at any time from conception through birth, then the spouse of the mother must also be a party and receive service.
For example, Matt wishes to go through a legitimization proceeding for his daughter Kat. Matt will have to file a verified petition. Kat’s mother, Pat, was married to Jim at the time of conception through birth. Therefore, Matt must serve and make both Pat and Jim parties to the proceeding. This option involves going to court, which can be messy, especially with the potential need to involve your child’s mother and her spouse as well.
Legally Acknowledge Yourself as Father of the Child
The father may create a path to inheritance by acknowledging the child. The father must file an affidavit (a sworn statement used as evidence) acknowledging the child during his lifetime and the lifetime of the child. This process does not legitimize the child, but it does create a path toward inheritance. The affidavit must be filed with the clerk of superior court. If an affidavit is signed at the birth of the child, it must also be filed with the clerk of court in the county where the father or child resides. Being listed on the birth certificate as an unmarried father is not sufficient for inheritance purposes.
For example, Ben and Sally are not married and they had a child together. Ben is listed as the father on the birth certificate. For inheritance purposes, Ben must also file an affidavit with the clerk of superior court. Ben’s child would still not be considered “legitimate”.
File a Paternity Suit
The mother, father, or child may file a paternity suit to establish paternity. If the court finds paternity, then the child may inherit from the father. If the child is more than three years old, or if the paternity suit is brought after the death of the father, evidence from a blood or genetic marker test is required to establish paternity. Paternity suits must be commenced before the child’s eighteenth birthday. If the child is an adult, then in North Carolina, a paternity suit cannot be used to prove paternity for inheritance purposes.
For example, Mary, age 27, wants to file a paternity suit against Bill, who she thinks is her father. Since Mary is an adult, she may not file a paternity suit to create a path to inheritance. However, if Mary’s mother would have filed a paternity suit with Bill when Mary was seventeen, then the results of that suit could be used for inheritance purposes.
Another Option: Create An Estate Plan!
All of the above methods focus on legitimizing the child, but the child does not have to be legitimized to receive an inheritance. If you create a will or a trust leaving your child as the beneficiary, then you do not have to worry about the legitimization process.
Given all of the nuances of North Carolina law, if you’re an unmarried parent, it’s important to work with an experienced estate planning attorney to create your will and estate plan. If you die without a will or trust, your child will be left with the shocking discovery that he or she will not be able to inherit your assets. Even if you are named on the birth certificate and think you filed the affidavit, you should double-check that it was filed properly. One clerical error could wreak havoc on your children for years after your passing. To avoid this, come speak with us at Carolina Family Estate Planning.
We can help you create an estate plan to protect your children from accidental disinheritance. Give us a call at 919-443-3035 to get started!