As I discussed in a prior blog, North Carolina has rather archaic laws regarding paternity and legitimization. In estate and probate matters, these issues arise when a father dies without a will (i.e., intestate) and leaves behind children born out of wedlock, where the father did not subsequently marry the mother or otherwise legitimate the child through the courts. In such cases, N.C.G.S. § 29-19(b) governs whether the child is considered an heir of the father and eligible to inherit via intestate succession.
In general, children born out of wedlock do not inherit from their father via intestate succession. However, there are three ways a child born out of wedlock can overcome this bar to inheritance provided timely notice is given to the Personal Representative of the father’s estate.
1. Court-Established Paternity: If paternity has been established in a paternity or child support action, court records are sufficient to allow the child to inherit.
2. DNA Testing: If the father died before or within one year of the child’s birth, and DNA testing can establish paternity, this is also sufficient.
These first two methods remain unchanged.
Acknowledgment of Paternity in Writing: Historically, the third method required the father to have acknowledged paternity during his and the child’s lifetime through a written, notarized instrument filed with the clerk of superior court. In practice, this was often done through an affidavit of parentage, signed by both parents, typically to have the father listed on the child’s birth certificate.
However, most affidavits of parentage are not filed with the clerk of court, simply because unwed parents have no reason to consult an attorney or know this additional step is required. As a result, in families where paternity and child support actions are unnecessary, often in the case of happily unwed couples, children can suffer significant legal consequences if their father dies without a will.
It has long been a mystery why an acknowledgment of paternity needed to be filed with the clerk of court. The same affidavit is generally sufficient to obtain child support—so why is it insufficient for inheritance? This inconsistency has been a persistent source of frustration for probate attorneys.
Fortunately, relief is finally on its way with House Bill 992. The bill was introduced on April 10, 2025, passed the House and Senate unanimously on June 26, 2025, and reached the Governor’s desk on July 1, 2025. It was signed by the Governor on July 9, 2025, and will apply to estates of decedents dying on or after December 1, 2025.
The change is simple but impactful. House Bill 992 removes the requirement that a written acknowledgment of paternity be filed with the clerk of superior court. Under N.C.G.S. § 130A-101(f), when a child is born to an unmarried mother, both parents may complete an affidavit of parentage to have the father’s name added to the birth certificate. While this affidavit is filed with the State Registrar, under current law it does not affect inheritance rights unless also filed with the clerk of court per G.S. 29-19(b)(2). Section 4 of House Bill 992 makes a conforming change to G.S. 130A-101(f) by removing this additional filing requirement for inheritance purposes.
In short, after December 1, 2025, if a father is listed on the child’s birth certificate based on a signed and notarized affidavit of parentage, the child will be considered his heir and can inherit via intestate succession.
While this change may not provide restitution to the many disinherited children born out of wedlock to father’s who died before December 1, 2025, and while our paternity and intestacy laws still need much modernization, this simple legislative fix addresses one of the most common injustices I see as a probate attorney in North Carolina. For that, however imperfect a victory, I am grateful.
About the Author
Andrew M. Brower is a Board Certified Specialist in Estate Planning and Probate Law at Law Firm Carolinas.