I hate to relate the answer this way. But I am a CPA. Most of our job is unpleasant in nature, in notifying disappointing news. We also give extreme examples to make people understand our points. I will provide some other alternatives for you to consider, as well. But you may and should still want to confirm and find more advice from attorneys in your state.
The good part of the side is that your child still has a father and will have rights to inheritance and/or benefits to his birth father's estate if anything similar to this event happens to his birth father. But your child is not entitled to the estate of this injured person as a son. He may inherit the injured person's belongings if there is a will or estate or trust established before the accident. We can always designate who can inherit our estate in a will or trust. But if it is a personal injury case to be filed in a state court, there is no way I can see that the child qualifies as a beneficiary of the estate in the eyes of any state laws. You can imagine that if it were allowed, there would be no method for the courts to uphold such laws and proceeds with such claims. That is also why the laws are set this way.
However, there are other alternatives for you to consider, provided that the statute of limitation has not run out. You can investigate these possibilities. First, find and locate the next of kin for this injured person, say parents, siblings, cousins, etc. If the lawsuit is filed with possible recovery, the relatives with standing may be willing to share some of the proceeds with you, not as a matter of law but as a matter of goodwill and good heart, kind action on their part. Also, if you are actually providing care to the injured person, the recovery can include compensation to your time spent in taking care of him.
Also, if you write to the person who caused the damage what you wrote to us, maybe out of this good heart, he is willing to contribute some to your son, not because of law but because of his kind heart. Do this through an attorney, even one from a free legal clinic. Do not do this on your own. You cannot communicate with a person with power and resources by yourself. We don't know what legal action they may take against us if we write anything improperly in this communication.
The third possibility is if you live in a state that recognizes common law marriage, you may qualify as the spouse yourself to recover damages. However, if it has been these many years, no attorneys have taken your case, this may not be the case in your state.
But still read on, the references and citations below is on common law marriage and a possibility discussion. Even if you may qualify as a spouse under common law marriage, whether you have standing to file lawsuit to recover damage is still an undecided issue. Continue to consult with your local, state attorneys.
Fiona Chen, MPA, Ph.D., CPA, ABV, CFF, CITP
States That Recognize Common Law Marriage
Only a few states recognize common law marriages, and each has specific stipulations as to what relationships are included:
- District of Columbia
- Georgia (if created before 1/1/97)
- Idaho (if created before 1/1/96)
- New Hampshire (for inheritance purposes only)
- Ohio (if created before 10/10/91)
- Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
- Pennsylvania (if created before 1/1/05)
- Rhode Island
- South Carolina
If you live in a State that Does Recognize Common Law Marriage
If you live in one of the above states and you “hold yourself out to be married” (by telling the community you are married, calling each other husband and wife, using the same last name, filing joint income tax returns, etc.), you can have a common law marriage (for more information on the specific requirements of each state, see Legal Information and Resources by State). Common law marriage makes you a legally married couple in every way, even though you never obtained a marriage license. If you choose to end your relationship, you must get a divorce, even though you never had a wedding. Legally, common law married couples must play by all the same rules as “regular” married couples. If you live in one of the common law states and don’t want your relationship to become a common law marriage, you must be clear that it is your intention not to marry. The attorneys who wrote Living Together (additional information below) recommend an agreement in writing that both partners sign and date: “Jane Smith and John Doe agree as follows: That they’ve been and plan to continue living together as two free, independent beings and that neither has ever intended to enter into any form of marriage, common law or otherwise.”
If You Live in a State that Does Not Recognize Common Law Marriage
There is no way to form a common law marriage, no matter how long you live with your partner. There is one catch: if you spend time in a state that does recognize common law marriage, “hold yourself out as married,” and then return or move to a state that doesn’t recognize it, you are still married (since states all recognize marriages that occurred in other states). However, this is murky legal territory and we don’t recommend experimenting with it!
Unmarried Equality is not responsible for omissions or inaccuracies in the above information.
Much of the information on this fact sheet comes from an excellent do-it-yourself legal guide called Living Together: A Legal Guide for Unmarried Couples, by attorneys Toni Ihara, Ralph Warner, and Frederick Hertz (2008).