UPDATE: NC Adopts New Law to Address Children Born to Unwed Fathers
Life’s been a little hectic lately but I’m finally back in the Friday Brief saddle. This week, I’d like to return to an issue we discussed earlier: inheritance rights of children born to unmarried parents. This time with a bit of good news!
Legal Recap
In the previous article on this topic, we noted that North Carolina has traditionally permitted children born out of wedlock to inherit from their fathers only in the following circumstances:
Dad subsequently marries mom after the child’s birth.
Dad files a petition for legitimation in superior court.
Dad files a notarized acknowledgment of paternity with the clerk of court during Dad’s lifetime.
Paternity is established in a child support proceeding.
Paternity is established by DNA testing if Dad dies before or within one year after the child’s birth.
This may seem like several good options but sadly I have encountered too many clients who did not qualify for any of these. This has been the case even when Dad was active in the child’s life.
Also note the one glaring absence from this list: Dad’s name is listed on the birth certificate. Under the previous law, the birth certificate was not sufficient to establish paternity for purposes of inheritance.
The New Law Effective December 1, 2025
Fortunately, thanks to a new law passed over the summer, children of decedents passing away after December 1, 2025, have an easier option. Specifically, the law modifies Option 3 above so that the notarized acknowledgment doesn’t have to be filed with the clerk of court. This was specifically revised so that a simple “affidavit of parentage” can count for legitimation purposes. This affidavit is part of the birth certificate process. Under N.C.G.S. § 130A-101(f), if Mom was unmarried at the child’s birth, Dad’s name could still be added to the birth certificate if he signed an affidavit of parentage acknowledging paternity. Under the old law, this affidavit was still insufficient despite being notarized because it was not filed with the clerk of court.
Final Thought
While it’s great that the law has finally caught up with the times, remember that Dad’s easiest option is to do some basic estate planning that takes care of his loved ones. A trust or will has the ability to render this issue completely moot!
About Bryan King
Bryan King is an estate planning attorney and partner at Haithcock, Barfield, Hulse & King, PLLC, based in Goldsboro, North Carolina. He is a member of the North Carolina Bar Association’s Estate Planning Section as well as the National Academy of Elder Law Attorneys. When he is not practicing law or writing the Friday Brief, he finds joy in family time, attending to his dog, and serving on the board of the North Carolina Down Syndrome Alliance. Feel free to donate to NCDSA here.