Under Republic Act 9255, an illegitimate child may use the father's surname if the father expressly recognizes the child in the birth record, an affidavit of admission of paternity, or a private handwritten instrument. Without acknowledgment, the child uses the mother's surname.
The question of whose surname an illegitimate child should carry is one of the most common concerns parents bring to a family lawyer. The answer turns on a single legal concept: acknowledgment by the father. This commentary explains the rule under Republic Act No. 9255 and clears up common misunderstandings.
The General Rule
Under Article 176 of the Family Code, as amended by Republic Act No. 9255, illegitimate children shall use the surname of their mother. This is the default: if nothing else is done, the child carries the mother's surname.
When the Child May Use the Father's Surname
The child may use the father's surname when the father has acknowledged or recognized the child. Recognition may be shown in any of the following:
- The father's name and signature in the child's record of birth;
- An affidavit of admission of paternity; or
- A private handwritten instrument signed by the father admitting paternity.
Using the father's surname is a right that follows acknowledgment. It is not automatic and, under prevailing jurisprudence, is exercised with the child's best interest in mind.
How the Father's Surname Is Entered
Where the father acknowledges the child, the change or use of the father's surname is typically recorded through an Affidavit to Use the Surname of the Father (AUSF), supported by proof of the father's recognition, and filed with the Local Civil Registry. The registrar then annotates the birth record accordingly.
Does the Surname Affect Support or Inheritance?
This is the most important point and the most misunderstood. A child's surname does not determine support or inheritance — filiation does. Once paternity is established, an acknowledged illegitimate child is entitled to support from the father and to inherit as a compulsory heir, receiving a legitime equal to one-half the share of a legitimate child. This is true whether the child carries the father's surname or the mother's.
Can the Father's Surname Be Compelled or Refused?
Because the use of the father's surname flows from acknowledgment and is weighed against the child's interest, disputes can arise — for instance, where the mother objects, or where a father who never acknowledged the child is later sought to be identified. These situations often require establishing or contesting paternity in a proper proceeding, where legal guidance is essential.
Frequently Asked Questions
Can an illegitimate child use the father's surname without the father's consent? No. The right to use the father's surname arises from the father's acknowledgment of the child. Without recognition, the child uses the mother's surname.
Does using the mother's surname reduce the child's inheritance? No. Inheritance and support depend on filiation, not surname. An acknowledged illegitimate child inherits and is supported regardless of which surname is used.
How much can an illegitimate child inherit? An illegitimate child is a compulsory heir entitled to a legitime equal to one-half of the share of a legitimate child.
What if the father is not named on the birth certificate? Paternity must first be established through recognition or a court proceeding before the father's surname and the corresponding rights can be claimed.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you need assistance with a matter like this, our firm is available to help. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or email vivasnobles@gmail.com.