It’s common nowadays to have children without getting married. But did you know if you do, your child could be missing out on several legal rights? This is true even if you’ve already established paternity. Read on to learn more.
What is Legitimation?
If a child is born out-of-wedlock (meaning to parents who are not married to one another), North Carolina law considers the child illegitimate. Legitimation is the legal act of making the child legitimate.
What Does it Do?
Legitimation gives a child several legal rights he wouldn’t have otherwise—even if paternity has already been established. Some of the bigger rights include the right for the child to inherit real and personal property from his father and the right to sue for the wrongful death of his father. On the other hand, an illegitimate child doesn’t need to be legitimated to inherit from his mother.
How is Legitimation Different from Paternity?
You can read this article from the North Carolina School of Government for a more in-depth discussion of the difference between paternity and legitimation. But for practical purposes, a paternity action is used to find out who a child’s biological father is. The child’s father, mother, or personal representative of the mother or child can file a claim for paternity.
Most people file actions for paternity as part of a larger plan to establish child support or custody rights. Unfortunately, they often assume that’s the only action they need to file or that can be filed—but that’s not the case. Even if paternity is established, and child support or custody is also established, an illegitimate child still won’t be able to inherit from his father when his father dies unless he’s legitimated.
Unlike paternity, if a child is legitimated, not only can child support and custody rights be established, but the child can also inherit from his father and vice versa. So, legitimation has a larger effect than paternity.
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How Do You Legitimate a Child?
1. Child is Born During the Marriage: In North Carolina, the husband of a married woman is presumed to be the father of any of child born during the marriage. Therefore, the law considers the child legitimate and the child can inherit from the husband. But if the husband isn’t the father, the presumption of legitimacy can be rebutted by clear and convincing evidence.
2. Parents Later Marry: If an unwed mother marries the alleged father of the child after the child is born, the child will automatically be considered legitimate—no special proceeding needs to take place.
3. Special Proceeding: If a man believes he’s the father of a child, he can file an action for legitimation. No one else can file it and it can only be brought during the father’s lifetime. If he does file it, he must name the mother and child as parties to the action. If the mother is married or was married at the time the child was born, the mother’s husband must be a named party too.
Once a child is legitimated, he’ll be able to enjoy the full legal rights of being a legitimate child under the law and the father will enjoy the full rights, duties, and obligations of being his dad.