Using DNA to prove a hereditary right
It is possible that when a father has passed away and his estate has already been divided, someone comes forward claiming to be his son or daughter. Apparently, the deceased fathered this child without anyone (possibly not even the deceased himself) knowing about his or her existence.
This post was reviewed and updated on 14 August 2020
In the case where a child has not been specifically recognised (and was not born during a marriage of the biological parents), the relationship between the child and the biological father is not recognised under Dutch family law. As a result, the child cannot inherit by operation of law following the father’s dead, nor is he or she entitled to the forced share in the estate.
Prior to the child claiming a share of the inheritance, the child will have to initiate a proceeding to have paternity established in court. Dutch law does not prescribe how to ascertain that the father is the biological father. It is not obligatory to perform a DNA-test. Other proof can also ascertain that the father is the biological father. The child can for example demonstrate that there was contact between the mother and father which could have resulted in the child being conceived. Witness statements from the mother, neighbours or friends are also considered as means to demonstrate such contact.
Since the law changed in 1998, the courts have nearly always granted claims by illegitimate children. The circumstances in which the child was conceived are no longer of relevance to the court. In the eyes of the law, all that matters is that the man fathered the child.
The court can order a DNA test. When the father has passed away, his DNA cannot be obtained directly and the child will have to supply DNA by other means in order to enable a DNA test to be carried out. In case the father has been buried, the remains can be exhumed and DNA can be taken. In case the father’s body has been cremated, the child will have to supply DNA by other means. Some examples of objects from which DNA can be extracted are a used toothbrush, an old licked envelope or a postage stamp, but even a hairbrush or an item of clothing can be a reliable source of DNA material. If the father received hospital treatment, genetic material may still be available which can be used to establish paternity.
In case the father is still alive, extracting DNA is fairly obvious, although the father is under no obligation to consent to DNA sampling.
Law of succession
Incidentally, whether the father ever had contact with his illegitimate child is irrelevant in the eyes of the law, nor does it have any bearing whether the child ever independently sought contact with his or her biological father, or only came forward after the father’s death.
Terms of prescription or forfeiture do not apply to illegitimate children, thus it may be that a person comes forward to claim his or her share of the estate 20 years after the father’s death. If the deceased is found to have fathered the child, he or she is entitled to inherit. Paternity can be established with retroactive effect, even many years later. In such cases, the heirs who received the estate will – in principle – have to share it as yet with this “new” child.
If the estate did not go to the surviving partner, but to the heirs, the heirs will have to surrender part of their original inheritance – but only if the inheritance has not yet been spent. If there is no surviving partner, the children (including the biological child) are entitled to the assets that make up the estate, and these must then be (re)distributed.
Should you have any questions about this topic or other family law matters, please do not hesitate to contact us.
This article has been written in close consultation with Bianca Beekhuizen, Legal Assistant in the Family and Inheritance Law practice group.
Marieke has been a family lawyer since 1998. After working for Wladimirov and Spong Advocaten, she joined GMW lawyers in 2000. Marieke has a particular interest in the ever complicated and intricate world of international inheritance law and she has been leading this section for the last 5 years. She is also involved in conducting proceedings and negotiations in complicated international divorce issues.
In the break-up of relationships, she will achieve the best result while avoiding animosity wherever possible, looking after the interests of any children. She has a keen eye for the financial aspects of both inheritance and divorce issues and has established an excellent reputation in cases that require unusually close attention because of emotional entanglements.
Outside of her work, Marieke often acts as a guest speaker at seminars for the Worldwide Fund for Nature.