Who’s The Dad And Who Gets Paid

A child can spend a lifetime loving their dad and still be told they have no inheritance rights when he dies without a will. That’s the reality North Carolina probate lawyers have faced for years when legitimation was never completed through a formal court process. We sit down for a quick elder law update on a new North Carolina statute that changes the conversation about heirship, legitimation, and intestate succession, especially for children born outside marriage. 

We explain what’s different, who the change applies to, and why the effective date matters: it applies to decedents dying on or after December 1, 2025. Then we get practical about the new option to establish legitimation using an affidavit of parentage signed by both the mother and the putative father. We also talk through the real-world details listeners worry about, including whether the signature has to happen at the time of birth, whether it can be done years later, and why waiting can increase the risk of disputes. 

From there, we pressure-test the law with uncomfortable hypotheticals: competing affidavits, uncertainty about who the father is, and why the statute doesn’t allow a unilateral affidavit even if you have convincing DNA evidence. A key takeaway is the legal nuance between paternity and legitimation in North Carolina, and how that difference can affect not only a father’s estate but also who could inherit from the child’s estate in scenarios like wrongful death recoveries. 

We end with the simplest way to avoid the headache altogether: clear estate planning. If you want someone to inherit, put it in writing with a will, or consider trusts and beneficiary-based transfers to reduce probate friction. Subscribe for more plain-English elder law updates, share this with someone who needs it, and leave a review with the question you want us to tackle next.

Transcript

0:01

Hey, I'm Greg McIntyre. This is a quick elder law update. There's a change in the law this year in North Carolina regarding legitimation

What Changed In North Carolina Law

0:10

and airship. So there's a new amended statute where it used to you had to go through a formal court proceeding to have legitimation to have an a child born out of wedlock or a father, if a father passed to inherit from that father's probate or intestate estate. That's if there's a will or without a will to inherit. So, Brenton, there's been some changes in the law this year. I'm joined by my law partner and our firm managing attorney, Brenton Begley, who is going to help me flush out the changes in the law and legitimation. This is a huge change, Brenton, where used to, I had a hard-line rule as a probate attorney to say this is tough to tell this heir, to tell this wonderful child who loved her father that she cannot inherit under his estate in Test State estate, say without a will, because she's not an heir at law of this man, right? Because uh there was never a formal legitimation procedure during the to during the person's life, during the father's life in the court system. Um the child was born maybe out of a loving relationship, but that father and mother were never married. Um and the laws of North Carolina were such until this year that that child just couldn't inherit at all. How has the law changed this year? Well, yeah, I mean, historically, it was, you know, like you said, difficult because uh for a male dying in North Carolina who have who has children born out of a marriage and he was never subsequently married to the mother, um, you know, the father wouldn't inherit from the children, and likewise the children wouldn't inherit from the father despite the nature of their relationship, unless certain things were in place. Um, so historically, if there was no will leaving things to the child, they weren't ever married to the parents, um, or they didn't go through some type of legitimation process. So, you know, previously a father would have to file something with the court, like a special proceeding action to legitimize the child. Um, now it is different. Now, it's important to note here that this only applies to decedents dying when the will when the when the law rather passed. Okay, so on or after December 1st, 2025. So probably not going to see quite a bit of these rolling through until years later, but thankfully we've updated the law where now it's much easier to show, even if the parents aren't married, that a father is the actual father of a child, and to thereby legitimize that child and make them an heir of the father, whether or not there's any type of estate planning in place. So now the parents can sign, so the punitive father and the mother can both sign an acknowledgement, like an affidavit of parentage, indicating that the father is in fact the father of the child. Um, and then his name should go on the birth certificate as the father, but you know, regardless of whether or not his name is on the birth certificate, that affidavit of parentage would serve similar

How The Affidavit Of Parentage Works

3:42

to a final order from the court as the final say as to whether or not the um the father is actually the father. So whether or not the child has been legitimized. So if you will allow me, I'm going to play devil's advocate or I'm going to ask some scenario questions. Uh where for me, for me, yeah. I this is nothing personal to my situation. This is totally hypothetical. Let's say I had a child born out of wedlock lock, okay? Uh you know, my wife can't watch this, right? This is totally legal, you know, this is totally just about this situation. I have to better just about this situation, okay? Just hypothetical. Okay. Let's say hypothetically there's a child born out of wedlock. Right. Do I and the mother have to sign that affidavit together contemporaneous with that name being put on the birth certificate? Um, really, they okay. So there's two different questions there. Do we have to sign the affidavit together? That the answer to that's yes. Whether or not it's contemporaneous with the birth certificate, ideally, yes, legally, doesn't necessarily have to be. The statute doesn't say anything about, hey, this has to be done before the birth certificate is generated, or the effect of it being done after the birth certificate's been generated. Um, it but ideally, so that you have a correct birth certificate being generated from the outside, you don't have to amend it. You'd want to have both parents sign the affidavit of parentage and then submit that along with any information, any additional information in order to obtain a correct and accurate birth certificate. Great answer. Thank you, thank you. That gives me some peace of mind. Okay. Um so let's say 20 years past, and you know, I'm just it's weighing heavy on my heart. I love this child, and I call up the mother and I say, Hey, let's get together and sign this affidavit of parentage. I want this child to be able to take from my estate if I pass away. Can I then uh get together with her and sign the affidavit of parentage at that time, even though I wasn't on the birth student, she never put me on the birth student. Yeah, so the affidavit of parentage can be signed anytime before the death of the father to establish legitimation. Um that's 20 years later, okay. Yeah, so maybe what would be easier is to put a will in place at that point and just leave the child. Oh wow, we're gonna get that. We're gonna that's my last, that's my finishing. But but but you know, I mean, just backing up a little bit. Right. So so jumping the gun here. But all right, you know, if you if you wait 20 years, okay, it is what it is. Now, this would have to be for uh, you know, with respect to um how about this? You you run the risk of in certain situations if someone else may be the father and someone else files that affidavit of of of parentage with the mother. Um, you know, if if if that's open question, there you leave open the possibility of someone else establishing their position as well. What if there were multiple affidavits of parentage?

Edge Cases Competing Claims And Limits

7:20

Yeah, yeah. And so I mean, I honestly I don't want I don't want Greg to be the father, I want Brent to be the father, and you sign one. Then we put the hook the does the child collect from both our estates? I mean, it it could it it could be a battle, I think you'd have a battle in the court in the court process, the probate process of the affidavit of parentage, right? Yeah, and so if there's no plan to get married anytime soon, you want to get this part knocked out when the child is born because you really want to anchor you know who the father is so that this doesn't become an issue later on. Don't get me wrong, I'm not trying to make you the father of the child, Brent. Okay, right, and but but I'm saying it presents a problem. What if you have competing affidavits of parentings, right? Right, yeah, it could it could certainly present an issue. I think it it it appears right now that it's kind of a a a first to um to sign type issue. Now you know it's it's the road, it it's the road is paved with great intentions, right? But then you know it does beget all these other scenarios and problems, which is one of the things that I love about the law or any decisions. Yeah, yeah, it's like the it's like the you know, the dice boy with his finger in the dam. You know, it it it you know, when you plug up one hole, it creates a another another B. You know, here you could have that now, you know, the mother has to sign that under oath, whatever that's worth. Um, you know, and not saying that there's a likelihood or propensity for any one individual or any type of individual or subset of individual to not be truthful in signing something under oath, but uh for a mother it was just mother's day, and a mother would never lie about the father of her child, right? That can never happen. I mean, it could be based on her good faith estimation, could be, could be. I don't know. All right, so so that was my next question then. Now you're getting into my next question, which is why does the mother have to sign this affidavit of parentage? Does she have to sign it too? Do we both have to sign it and agree to it? Or what if I just sign in front of a notary um an affidavit of parentage that this child is my legitimate child? She's my child, and she should collect from my estate. Just unilaterally, with me as the father, I want to open up the estate for this child to collect. Why does the mother? We know we know who the mother is. There's no question. Who the mother is. So that that unilateral is the is the key word there, is is really do we want to bestow upon one of the parties the ability to unilaterally decide who is. How does she deny my my right to fatherhood? Well, the the thing is that you still have to contend with the presumption under North Carolina law that if you're married um and have a child, that the child is born of the marriage and therefore um a child of both parents, right? Uh uh of both parties to the marriage, rather. Other parties married, but I want to acknowledge this child as my child. Right. So that that's the point is that then you have to contend with the opposite presumption that if they're not married, that the that we just don't know who the father is. And so there's got to be some type of way to prove it, other than a unilateral way to do that. And really, that's a safety mechanism for both the mother and the child's estate. Because if I'm a mother holds the unilateral right to allow me to have this child shared my estate, not necessarily, not necessarily. Um, you know, if if you want them to share in your estate, you could always put an estate plan in place and allow them to be an heir of your estate. But it goes both ways, it goes both ways because the effect of legitimation, okay, is you are also the heir of the child's estate, okay? So that's why there is that that requirement of the you know ascension between the parties to come together. And that would split. Let's say there was a wrongful death. Let's just say there's a wrongful death, okay? And you're like, okay, the child is the estate is going to inherit X amount of money. I'm the purported father, I'm a puny father. I wanna I want to take a piece of that, right? You can't just say unilaterally that you're the you're the father, um, and try to claim that you're the father without there being some type of check or balance there. So what appears to be written in the law is not okay, why can't I do an affidavit under the law unilaterally and then submit a DNA test? Well, uh would that work? Would other evidence combined with the affidavit of parentage that I unilaterally sign suffice? Well, I I think that practically that's very convincing. Legally, it doesn't work because the statute doesn't provide for that method of legitimation. Uh well, I think we should try it and blow it wide open anyway. And there's other evidence that can be submitted uh to supplement this law and to fairly uh apportion the rights between the father and the mother, uh, which are hard to equalize because of the biological differences of women bearing the child, right? So you want to run into the issue, like uh what you're really pointing out here is here's an issue, right? If you want to be an heir of the child as well, so it goes both ways, yeah. And you want the same, you know, rights as I just want equal rights under the law, which I'm affording about. Equal rights under the law. So it's like if I'm if I think I'm the father, okay, then can the mother just unilaterally keep me because she doesn't agree to signing an affidavit. According to the interpretation of the new law. Well, that's here's the remedy there. I I think at that point you would you would have to actually file uh a special proceeding to establish you know paternity and have both parties put out. During the life of both parties, which you can only do during the life of both parties, which means I don't get equal protection under the law and I question the constitutionality. However, let's not get there. Those are all issues. The good news is that um there has been a step toward um acknowledging children who were born outside of a marriage in North Carolina, which I think has been much. And by the way, just if you want to dive deeper into maybe some of the issues with this, is that you could use DNA evidence to establish paternity, but it won't necessarily legitimatize the child and make you an heir of their state, you know? Um, so for for purposes. So good you're making an important distinction and nuance for our listeners and our watchers today, which is um the difference in paternity and being an heir and legitimation. Okay. The difference in paternity and legitimation, those are two separate things under the eyes of the law in North Carolina. And and uh uh you know, this is what I love about being an attorney is coming at a problem from different angles and peeling the layer of the onion back or finding a hole or finding really what it stands from for me is inequality, is is really equal treatment and justice and fairness. And that's what the law should strive for. And I think it's a step in that direction. Although I think, you know, I you know, I would pat myself a little bit on the back today just for being the devil's advocate, um, that I think there are some holes um and maybe some places where we could get in and um and really make some hey uh in end point, for all this argument is unnecessary. You don't have to have it,

The Simple Fix Estate Planning

15:55

you avoid it. Brenda, how do I avoid all this headache if I want to make a child my heir? If you want to make a child your heir, it's simple. Put some estate planning documents in place and name them in that document as an heir. And that would skip all of these issues as to whether or not they should be named as an heir devise in the estate. It's already in the will, a legitimate will that you've put in place, um, that you've kept the original, maybe have the attorney that drafted it sign an affidavit saying that even a copy can be filed and probated. That's the way to have a belt and suspenders on, making sure the will is going to be filed and carried out, even if you lose the original. Um, so that would be the way to make that happen. And if you're looking to avoid probate, then it's not really a big deal whether or not they're named as an heir per se to your estate. Rather, they're named as a beneficiary in something like a trust or grantee on a deed to receive the asset directly, where you don't have to go through the court process and have them question whether or not the person that you love is actually your heir. Sure. And and and to your point, I hear what part of your argument was earlier, which I really enjoyed, um, was you know, you can only control what you can control. And that is what your estate plan is. That still would not make you an heir of the child's estate if the child precedes, right? Right. You could, but your standpoint, and that's a huge thing to learn as a human being. I've had to learn that as an adult, is really focusing on what I can control. And what I can control is the estate plan I put in place, whom I care for while I'm alive and after I'm gone, and how I protect myself and my assets. So that that is something that Brenton is an uh is an absolute um uh just great at and and and phenomenal at and and and and our firm is as well. So, you know, if you would like to take advantage of estate planning, if you have any legitimation uh in regards to airship issues with probate estates, which can get really complicated really fast, um, or in testate estates. Um if you want to engage in trust planning during your life and skip that whole mess of probate uh or estate administration through the court process, uh, give us a call. Um we would uh we'll we we will sit down with you free of charge uh to discuss your situation. You can call 1-888-999-6600 or schedule directly on our calendars at any of our offices at mcelderlaw.com slash scheduling. Thank you. And Brenton, great job. I really enjoyed this. Okay. We should do more of this format of back and forth. Uh, maybe you can play devil's devil's advocate next time, okay? Sounds good.