Inheritance and unrecognized children: exhumation with DNA testing

When the determination of presumed paternity involves a deceased person, the search for the biological truth may require a very delicate step, such as the exhumation of the body to allow for a DNA test.

This is an exceptional procedure, located at the intersection of family law, protection of evidence, mortuary police regulations, and the responsibilities of the Civil Registrar. A typical case is when a person, believing themselves to be the biological child of the deceased, requests genetic analysis. However, the deceased already has recognized children. The request therefore arises from a conflict of hereditary and identity positions, and is part of a judicial context that requires method, rigor, and full regulatory compliance.

When genetic evidence prevails over the consent of those entitled to it

Case law has clarified that, for the purposes of establishing paternity, the right to evidence can prevail over the consent of those entitled to the grave. The ruling of the Court of Cassation, First Civil Section, no. 12549/2012, established that it is not necessary to obtain the authorization of the deceased's family to proceed with DNA testing.

This doesn't mean that the entitled parties can be ignored. They must be informed, made aware of the date and time of the transaction, and involved in formal communications. However, their possible dissent doesn't block the procedure, because the evidentiary purpose is considered primary.

Because this is an extraordinary exhumation

Exhumation requested for genetic testing purposes is not part of the ordinary procedures provided for by mortuary police regulations. It is an extraordinary exhumation, possible only in two cases:

• at the request of those entitled to transfer the body;
• order of the judicial authority.

In the case of paternity determination, the procedure can only be initiated through the second channel, namely a court order. The deceased's presumed biological children cannot apply directly to the Municipality. They must first contact a professional, such as those at the Agenzia delle Successioni, who in turn submits a request for technical verification to the judge as evidence.

From the appeal to the judge's order

The professional submits a request to the judge to perform a DNA test on the alleged father's body. The judge evaluates the relevance of the evidence and, if deemed necessary, appoints a court-appointed expert.

The court-appointed expert is the person who oversees the technical operations. He or she coordinates the sampling, ensures the sample's chain of custody, and certifies the correctness of the procedures. Once the test is authorized, the judge issues a formal order for extraordinary exhumation. This document is essential. Without it, the Civil Registrar cannot authorize any operation.

The role of the Civil Status Officer

The administrative process begins when the lawyer delivers the request for extraordinary exhumation to the Civil Registrar, accompanied by the judge's order. The Civil Registrar then proceeds according to a clear sequence:

1. Documentation verification: judge's order, professional's request, deceased and burial details.
2. Calculation and payment of fees: since this is a request from a party, all costs, exhumation, technical operations, re-interment, are borne by the applicants.
3. Formal authorization: issues the authorization document for exhumation and reburial.
4. Mandatory communications: those entitled to the tomb, the parties involved in the proceedings, the competent local health authority, and the court-appointed technical consultant must be notified.
5. Operational coordination: the exhumation takes place in the presence of the court-appointed technical consultant and the party's technical consultants, ensuring transparency and procedural correctness.
6. Final report : the Civil Status Officer draws up the exhumation and re-interment report, a document that certifies each phase of the operation.

Hygienic-sanitary aspects and conditions of the body

As with all extraordinary exhumations , issues may arise related to the condition of the coffin or the body. Bursting coffins, leaks, or unsuitable conditions may require additional measures, the presence of the local health authority (ASL), and the adoption of more stringent safety protocols. These issues do not affect the ability to proceed, but require attention and technical expertise to ensure the safety of the operators and the proper execution of the exhumation.

Exhumation for paternity purposes is a rare, complex, and highly regulated procedure. It combines the emotional sensitivity of the family situation with legal and administrative precision.

As discussed above, all costs, even those not previously considered, are the sole responsibility of the applicant. Therefore, the coffin, headstone, and other unforeseen costs may be added.

Upon paternity determination, one's own reserved share may or may not be recognized. This situation can therefore impact an estate to be inherited, even if it has already been inherited and divided among known heirs. The law protects heirs in these cases with various tools, such as appeal or collation.

For those involved in similar situations, relying on competent professionals, such as those at Agenzia delle Successioni, is the only way to ensure that the search for truth is conducted with full respect for the law and the dignity of the deceased. To book a consultation, simply fill out the form and connect with the appropriate professional.