Today’s technology now allows us to determine paternity via DNA testing – even when the father in question is no longer living. The question now becomes, under what circumstances will states allow posthumous paternity testing – especially in order to establish legitimacy so that a child can inherit from his or her alleged father?

It’s no surprise in our federal system that the states are divided on this issue. The intestate succession statutes of some states – Connecticut, Maryland, and Virginia included – require the establishment of paternity during a father’s lifetime. In these states, a body won’t be exhumed in order to conduct DNA testing in order to establish paternity. In other states, such as Pennsylvania and New York, there’s no requirement that paternity be established during a father’s lifetime, so exhumation for purposes of DNA testing for paternity is much more likely.

What’s interesting is that regardless of whether a state is inclined to allow postmortem DNA testing, the main concern informing state law is not for the decedent’s interests in avoiding such testing. Rather, the concern of the states focuses on the rights and responsibilities vesting in the living – and the societal interests that surround the issue. In other words, the law recognizes few (if any) rights of an individual to control what happens to his or her body after death because a dead body is not “property” historically.

Has the issue of posthumous paternity testing come up in your practice? If so, what was the resolution?

Stephen C. Hartnett
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
(800) 846-1555
www.aaepa.com