Request By:
Mr. James S. Secrest
Allen County Attorney
P.O. Box 35
210 West Main Street
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The matter of making out a birth certificate is dealt with in KRS 213.050. In subsection (1) it is provided in part that if the mother of the child informs the physician, or midwife, or other attending person as described in subsection (2), that the child was born out of wedlock, the name of the father shall not be inserted in the birth certificate and the certificate of birth of the child shall be in the surname of the mother. However, the Department for Human Resources shall insert the full name and social security number of the father and the mother, and change the name of the child to the surname of the father if the paternity is established in a legal action, or if an affidavit is filed stating that the affiant is the father of the child.
Question No. 1:
"If the personal representative of the estate of the deceased father (of a child born out of wedlock) files such an affidavit stating that his intestate is the father of the child (such affidavit being based on what the decedent had stated prior to his death), would the Bureau of Vital Statistics be authorized to change the name of the child to the surname of the father?"
The answer is "no", assuming the representative has no sworn statement of the father to file. Under the express wording of the statute the Department for Human Resources can change the name of the child [born out of wedlock] to the surname of the father only if paternity is established in a legal action or, as an alternative, if an affidavit is filed bys the father of the child stating that the affiant is the father of the child. The statute makes no provisions for the affidavit's being filed by some one other than the putative father. Since an affidavit can take the place of a court proceeding, the legislature made certain that only the sworn statement of the actual father himself would be sufficient. No secondary statement of others would suffice in such a serious matter. Further, the legislature assumed that in terms of humanity generally no one but the real father would sign such an affidavit. Thus for purposes of a birth certificate the sworn statement of the man claiming to be the child's father would be accorded legal verity.
Question No. 2:
"If the personal representative filed such an affidavit would that also constitute a determination of paternity for inheritance purposes?"
The answer is "no". The case of Rudolph v. Rudolph, Ky., App., 556 S.W.2d 152 (1977) holds that KRS 391.090, which provides that an illegitimate shall inherit only from his mother and mother's kindred, is unconstitutional in terms of the 14th Amendment of the U.S. Constitution [violates equal protection clause] and in terms of § 2 of the Kentucky Constitution, which section prohibits arbitrary action. See also Trimble v. Gordon, 430 U.S. 762, 52 L. Ed. 2d 31, 97 S. Ct. 1459 (1977), holding that an Illinois statute, similar to KRS 391.090, was unconstitutional since it violated the equal protection clause of the Fourteenth Amendment. Pendleton v. Pendleton, Ky., 560 S.W.2d 538 (1978) was handed down to conform to Trimble, above, the court holding KRS 391.090 to be unconstitutional as a denial of equal protection under the 14th Amendment (U.S. Const.).
However, the personal representative's affidavit as to paternity would not be sufficient for purposes of the birth certificate notation of fatherhood nor would it be sufficient for inheritance purposes.
Lastly, it is our opinion that the filing of an affidavit by the man claiming to be the father of the child (born out of wedlock) pursuant to KRS 213.050 and the amended birth certificate showing the fatherhood would be construed by the courts to raise a legal presumption that the affiant is the father of the child for inheritance purposes. This seems logical since the statute equates the establishing of paternity in a legal action with establishing paternity by filing the father's affidavit, for purposes of the birth certificate.
The early case of Drain v. Violett, 65 Ky. 155, 2 Bush 155 (1867), held that the words "children" and "issue", as used in the statute of descent and distribution, are not necessarily confined to children and issue born in lawful wedlock; but include all such children and issue as are by law capable of inheriting. Of similar import is Power v. Hafley, Ky., 4 S.W. 683 (1887). There is a well established rule in Kentucky that there is a presumption that every deceased person leaves heirs at law capable of inheriting, although the presumption may be overcome by proof of a lapse of time accompanied by the nonappearance of heirs or by the direct evidence of the nonexistence of heirs. Doeker v. McKnight, Ky., 264 S.W.2d 78 (1954) 80.
The ultimate problem of proof [where such presumption of heirship may be put in contest] of the father-child relationship has been declared to address itself to evidentiary standards in appropriate court proceedings. See Rudolph v. Rudolph, Ky., App., 556 S.W.2d 152 (1977). See also Sweat v. Turner, Ky., 547 S.W.2d 435 (1977) 436.
Where the father files no affidavit under KRS 213.050, and where the fatherhood is established by any appropriate court action, the child is then the child of such father for purposes of inheritance.