A Child Born Outside of Marriage is Entitled to an Inheritance

There are times when a couple successfully lives a happy life together, where the two establish a home, have children and live together as a family for decades. But what happens when the father or mother passes away, and the children suddenly discover a half-sibling born outside of the marriage, through an act of infidelity, who claims that it was his parent too, and that he is thus entitled to share in the inheritance like all his other half-siblings? What are the legal possibilities and how does the court treat this case? This article below will examine this topic.

This case mainly concerns a battle for estate rights after the death of the father or mother. Courts nowadays tend to require genetic testing for relatives in order to prove a family connection when they make a decision on the matter.

Upon close examination of the Succession Law of 1965, it is evident that the law distinguishes between two cases. The first is a case in which the deceased has left a will, whereby his estate is divided at his request. In such cases, the deceased can exclude whoever he wishes from his will, including illegitimate children born outside of the marriage. 

The second case is a situation where the deceased has not left a will, and his estate is divided according to inheritors, or heirs, determined by the law.

A Child Born Outside of Marriage is Entitled to an Inheritance

Eligibility of Inheritance under the Genetic Information Law

A child is considered an inheritor from the moment of birth, even if they are born outside of marriage. However, the deceased must acknowledge his paternity and register as the father of the child with the Ministry of Interior. In the case that this does not happen and the father denies his paternity, but the child claims his right to inheritance, the Genetic Information Law of 5771-2000 is relevant.

The law allows a genetic test to be performed on the parents or siblings of the deceased father, and on the person who claims to be his illegitimate son, in order to determine whether it is indeed a child born outside of the marriage. In exceptional cases, the court even approves taking a DNA sample from the father’s body.

But what happens when a person dies, his inheritors apply for an inheritance order and suddenly an objection to the order is filed by an unrecognized, illegitimate child? Does the inheritors’ objection to genetic testing invalidate the illegitimate child’s request for recognition?

In the past, the law has ruled that a paternity test (tissue test) cannot be forced. This is still true in cases of fear of illegitimate children while the father is still alive, since the court first sees the best interests of the child, and illegitimate children may have serious consequences that are not in their best interests.

In 2008, Amendment No. 3 to the Genetic Information Law was enacted, which gave the court coercive authority for unwilling parties to be tested. Section 29 (f) of the Genetic Information Law allows the court to perform a tissue test, even in the event of an objection:

“The court may order the conduct of the examination… even without the consent of the subject, if it is proved that the conditions for its conduct have been met… provided that all of the following have been met:

– The court is satisfied that there is a reasonable chance of the applicant’s allegations regarding the alleged family relations

– The examinee was given an opportunity to express his opposition to the issuance of the order

This is not about any person that claims to have a genetic link with the deceased and to share in the inheritance. In order to perform a tissue test despite the family’s opposition, it is first necessary to convince the court that there is a high probability of a blood relationship.

A ruling by a family court in Nazareth shows that this is not the case. In the case, the boy’s father was killed in a car accident at the age of 24, and it was known to his family that he was single with no children. The parents of the deceased issued an application for an inheritance order in which they declared that they were the sole inheritors, but they were unaware that their son had had a child whom he did not recognize following a relationship that lasted several years.

The boy’s mother filed an objection to the order, demanding recognition of the deceased as the boy’s father. The court approved a tissue test of a child’s grandparents despite their opposition and the test results proved the allegations. The child was registered as the son of the deceased after his death, which means that he was entitled, together with his mother, to inherit his estate.

Children Born Outside of Marriage

Clarifying paternity for a child born outside of marriage in Israel leads to the clash of two basic rights: the right of the deceased father when it comes to respecting his will and the right over his body, and the right of the deceased’s family members to their body (examination of tissues against their will violates this right) when the best interests of the child.

The Basic Law of Human Dignity and Liberty speaks of a child’s basic right to know who his biological father is. This is also related to the child’s right to marry and their right to protection against genetic diseases, when needed. Therefore, from a legal point of view, it seems that the best interests of the child outweigh the will of the father/family members in this matter.

We have learnt that the law allows the court to compel family members, or the father himself, to perform a tissue test to prove whether a person claiming to be an unknown son is indeed his son. But what happens in a case where the father is still alive and physically refuses for the tissue examination to be carried out, despite the court’s orders?

In February 2019, the Tel Aviv-Yafo Family Court responded to such a case, in which a mother demanded recognition of paternity for three of her minor children (13026-02-16). The father refused to attend the hearings, and even orders requiring him to attend court. The Israel Police was unable to locate him as he did not have a permanent residence. The court turned to his brothers, but they too did not come for an examination, despite demands from the court.

In the end, Judge Esther Zetnicki ruled that in light of photos presented by the woman and an affidavit from her mother, it was clear that their son had a romantic relationship with the woman for several years, and therefore ruled that he was indeed the father of her children. The judge wrote in the judgment that “the degree of proof required in a paternity error is that which is customary in civil law, ‘the balance of probabilities’. Therefore, the accuser must prove to a degree of more than 50% that the defendant is the father of the minors.” Judge Zetnicki also wrote that she relied on Section 28h (b) of the Genetic Information Law, which states that “the court may infer from a person’s refusal to examine any conclusion that he considers justified in the circumstances of the case, including determining the family ties alleged against that person.”

If you are an unrecognized child born outside of marriage, or if your parents have died and you have encountered similar opposition from a person claiming to be your parents’ biological child, it is advisable to seek legal advice as soon as possible. Proof of paternity or opposition to such, since it concerns a person who is no longer alive, is a complicated legal and judicial issue. Therefore, it is recommended to seek legal advice from a lawyer who is an expert in the field and has appropriate experience. 

Our firm deals with inheritance and family law, and we guarantee that you will find lawyers who are experts in the field, with years of experience, who will be happy to advise you and answer any questions you may have.

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