FR LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- WISCONSIN

A blood test may be used in Wisconsin to establish paternity as well as to rule it out. A blood test showing a 99.97% probability that a person other than the mother's husband is the natural father of a child constitutes clear and convincing evidence to rebut the presumption of legitimacy and to establish the paternity of the individual who is the subject of the test. (M~, Ronald, ~ -- RAV (K~), to ARC, Progs., 03/31/86.)

OD 2110 -- WI

This is with reference to your inquiry as to whether blood tests are acceptable under Wisconsin law as "clear and convincing evidence" to rebut the presumption of legitimacy, whether the use of blood tests to prove paternity rather than merely ruling out paternity is appropriate, and whether the specific results are conclusive enough to rebut the presumption of legitimacy.

The relevant facts in this case appear to be as follows. The wage earner and Donna M. O~ married on February 4, 1967. Tina M. O~ was born October 20, 1970. The marriage was annulled December 28, 1972. The wage earner died August 9, 1977. It was determined that Tina was entitled to surviving child's insurance benefits as the natural child of the deceased wage earner effective September 1981.

The Marathon County Department of Social Services notified the Social Security Administration on February 5, 1985 that as the result of recently completed blood tests it has established that another person, Harvey T~, is Tina's father. Using the Human Leukocite Antigen (HLA) tests, along with ABO, RH, MNSA, Kell and Duffy, the probability that Harvey T~ is Tina's father is 99.97%. The laboratory report concluded:

The alleged father, Harvey E. T~, and the child, Tina M. ~, share common genetic markers. Using the HLA system, along with ABO, Rh, MNSs, Kell and Duffy, the probability of paternity is 99.97% as compared to the random unrelated North American Caucasian population. Therefore the alleged father is practically proven to be the biological father of the child.

Under Wisconsin law a child born to a married woman is presumed legitimate unless rebutted by "clear and convincing" evidence. Willie N~, GC (K~) to SSA, 7/23/69. There is no question under Wisconsin law that blood tests may constitute clear and convincing evidence to establish that an individual is not the father of a child. Wis. Stat. Ann. 767.48(4); State ex rel L v. DeValk, 47 Wis.2d 200, 177 N.W.2d 106, 108 (1970); Kurt N. Y~ RA V (A~) to ARC V, 5/5/80 (copy attached). Blood' tests establish with a 99.97% probability that an individual is a father constitutes clear and convincing evidence. See Donald R. W~, ~,RA V (G~) to ARC Programs V, 5/16/85 (copy attached).

We believe that blood tests may be used not merely to rule out paternity, but also to prove paternity. Establishing paternity of an individual through blood tests with a 99.97% probability constitutes clear and convincing evidence excluding other individuals as the father. Thus, we believe that the blood tests showing the probability that Harvey T~ is Tina's father as 99.97% would constitute clear and convincing evidence rebutting the presumption that the wage earner is Tina's father.

This is not a case of establishing inheritance based on posthumous paternity. Cf. Ricky D. O~ , ~, RA v (D~ to ARC Programs V, 2/1/84 (copy attached); David K~,~ , RA v (D~) to ARC Programs 11/3/82 (copy attached). The individual whose paternity is being established through the blood tests in this case, Harvey T~ is living.

The claims folder is returned herewith.

Wisconsin follows the settled rule of statutory construction that, absent language to the contrary, statutes are to be given prospective effect only. Because at the time of the wage earner's death, an illegitimate child could not inherit from his or her father based on a posthumous determination of paternity, the child could not be the heir of the wage earner under Wisconsin law.

You have requested our assistance in determining whether Deanne S~ is entitled to benefits as the child of David ~. We conclude, for the reasons discussed below, that she is not.

The relevant facts may be briefly summarized: Deanne S~ was born to Marilyn S~ on June 13, 1981 in Platteville, Wisconsin. David K~, who was present at the hospital at the time of the birth, was killed in an automobile accident on the same day on his way home from the hospital. David and Marilyn were engaged to be married in October, 1981. On July 25, 1981, Marilyn S~ filed an application for child's benefits on behalf of Deanne. The evidence in the claims file indicates that David had acknowledged his paternity to numerous individuals. There is, however, no evidence of a written acknowledgement in any form. David's name, date of birth, and birth place appear on the hospital birth certificate. ^[1] Marilyn S~ indicates that David K~ was neither living with her nor contributing to her support at the time of his death. In response to an inquiry by a Social Security claims representative, the Platteville hospital reported that it had nothing in writing by David K~ acknowledging in any way either his paternity or his responsibility for the payment of hospital bills.

Deanne's claim was initially denied on September 21, 1981. At the time of the wage earner's death, Wis. Stat. Ann. §852.05 (West) provided that an illegitimate child could inherit from his or her father if the father had acknowledged his paternity either in writing or in open court or had been adjudicated to be the father in a paternity proceeding under Wis. Stat. §§52.2l to 52.45. None of these criteria were met in the instant case, so entitlement could not be based on Section 216(h)(2) of the Social Security Act. In addition, none of the alternative "federal" criteria for entitlement specified in Section 216(h)(3) of the Social Security Act had been met. No written acknowledgement of paternity, court finding of paternity, or court order of support had been made prior to the death of the wage earner. Moreover, while there was other "evidence satisfactory to the Secretary "that the wage earner was Deanne's father, he was neither living with nor contributing to the support of Deanne or Marilyn at the time of his death.

On October 6, 1981, Marilyn brought a paternity action in Wisconsin state court seeking to have David declared as Deanne's father. David's mother, as the personal representative of his estate, was a joint petitioner. Although Deanne's interests were represented by a guardian-ad-litem, the action does not appear to have been genuinely contested. On November 20, l981 the Court, following a hearing, declared that David K~ was the father of Deanne S~.

This action had been brought pursuant to the new paternity action provisions of Wis. Stat. Ann. §§767.45 to 767.53 {West). Laws 1979, Chapter 352 had repealed the former provisions set forth at §§52.21 to 52.45 for the determination of paternity and had enacted the new provisions. Paternity actions under the former provisions could only be brought by a district attorney and only during the lifetime of the putative father. J.M.S.v. Benson, 297 N.W.2d 18 (Wis. 1980); Estate of Blumreich, 267 N.W.2d 870 (Wis. 1978), appeal dismissed for want of a substantial federal question 439 U.S. 1061 (1979). However, new §767.45 provides that a paternity action may be brought by the child, the child's mother, the putative father, or by the personal representative of one of these persons if that person has died. Laws 1979, Chapter 352 also amended Wis. Star. Ann. §852.05(West) to provide that an illegitimate child could inherit from his father if the father has been adjudicated to be the father in a paternity proceeding under §§767.45 to 767.53. Laws l979, Chapter 352 was enacted on May 21, l980, and took effect on July l, l981. Laws 1979, Chapter 352, §40. Its provisions were applicable to all paternity proceedings pending on or commenced after its effective date. Laws 1979, Chapter 352, §41.

Marilyn S~, through her attorney, has filed a request for reconsideration, contending that because the wage earner has been adjudicated to be the father of Deanne in a paternity proceeding, Deanne is his heir under Wisconsin law. We do not agree. We may accept the judgment in the paternity action as valid. ^[2] Nevertheless, the dispositive fact in the present case is that the wage earner died on June 13, 1981, whereas the amendments revising the paternity action provisions and correspondingly changing the statutory provision on inheritance by illegitimates were not effective until July l, 1981. At the time of the wage earner's death, §882.05 provided that an illegitimate child could inherit from his father if the father had acknowledged his paternity either in writing or in open court or had been adjudicated to be such in a paternity proceeding under §§52.21 to 52.45. In Estate of Blumreich, 267 N.W.2d 870 (Wis. 1978), appeal dismissed for want of a substantial federal question 439 U.S. 1061 (1979), the Wisconsin Supreme Court held that under this provision an illegitimate child could not inherit from his father based on a posthumous determination of paternity. The court also upheld the constitutionality of this provision as so interpreted. ^[3] The Supreme Court dismissed the appeal in Blumreich for want of a substantial federal question on January 8, 1979, less than one month after it had upheld the validity of a similar New York provision in Lalli v. Lalli, 43g U.S. 259 (1978).

In Wisconsin, the descent and distribution of the estate of an intestate is to be determined by the law in effect at the date of the decedent's death. Estate of Nelson, 64 N.W.2d 406 (Wis. 1954). Furthermore, Wisconsin follows the settled rule of statutory construction that, absent language to the contrary, statutes are to be given prospective effect only. Feest v. Allis Chalmers Corporation, 229 N.W.2d 651 (Wis. 1975); Swanke v. Oneida County,, 60 N.W. 2d 756 (Wis. 1953). We have found no indication in either the statute or any cases that the amendment to §852.05 may be applied retroactively to individuals such as the wage earner dying prior to July l, 1981. ^[4] Because at the time of the age earner's death an illegitimate child could not inherit from his or her father based on a posthumous determination of paternity, Deanne S~ could not be the heir of the wage earner under Wisconsin law. This is so regardless of whether a posthumous action for the determination of paternity could be properly brought after July l, 1981, or whether that determination is a valid one.

We recognize that the equities in this case may be viewed as favoring the claimant, and that either a federal court on direct review or a Wisconsin court in a similar case may reach a different result based on these equities. However, the decision here may not be based on speculation as to what a court may possibly decide. The result we have reached is fully consistent with and required by the pertinent statutory provisions and relevant judicial decisions. Were we to reach a contrary result, that result would be equally applicable to numerous cases of wage earners dying long before July l, l981. This would be so because under the new paternity provisions, an action may be brought by a child within 19 years of his or her birth, and by any other individual authorized to do so within 6 years of the child's birth. We also note that under SSA policy, changes in State laws on inheritance are generally applicable only in cases of wage earners dying on or after the effective date of such changes. See generally POMS GN 00306.135.

We also believe that an alternative ground for entitlement may exist. Under Section 216(h){3}(c)(ii), a claimant may be entitled to benefits as the child of a deceased wage earner if the wage earner is shown by satisfactory evidence to have been the father of the claimant and the wage earner was living with or contributing to the support of the claimant at the time the wage earner died. Although there is "satisfactory" evidence of the wage earner's paternity, it was determined that the wage earner was neither living with nor contributing to the support of either Marilyn or Deanne at the time he died. This determination was based on a response by Marilyn on a Statement Regarding Contributions that the wage earner did not contribute toward her support before his death, and a statement by the hospital that the wage earner had not assumed responsibility for the payment of the hospital bill. We believe that when a child is born either posthumously or shortly prior to the death of a wage earner, the support requirement should be applied flexibly. Although in the instant case the wage earner had not assumed personal responsibility for payment of the hospital bill at the time of his death, the wage earner may well have intended to share in the expenses following the completion of Marilyn's hospitalization. Moreover, Marilyn may well have viewed "support" in the broad sense of continuing payment for all living expenses in stating that the wage earner did not contribute toward her support. We believe that if reliable (though not necessarily written) evidence that the wage earner paid any of Marilyn's medical bills incurred during her pregnancy, intended to pay all or part of her hospital expenses, or significantly contributed in any way (considering his erratic employment) to her living expenses can be ascertained to exist, entitlement may be appropriate.

Finally, you have asked whether the statutory changes require corresponding changes in CM 2422 (now POMS GN 00306.135). The Wisconsin entry states that an illegitimate child may inherit if the parents intermarry, or the father acknowledges his paternity in writing or in open court or has been adjudged in a paternity proceeding to be the father. This entry is still correct, although there is now the question of whether the paternity proceeding under the new provisions may be posthumous. There is no clear answer to this question. Although §767.45 does authorize a child, mother, father, or the personal representative of any of these persons to bring a paternity action, and thus allows the personal representative of the father to bring an action after the father's death (as happened in this case), the statute does not expressly authorize any other individual to bring a paternity action against the personal representative of the father. In Blumreich, the Wisconsin Supreme Court cited the reference in the old paternity provisions to arrest of the father, blood tests on the father, and the father's right of cross-examination as evidence that such actions were required to be brought during the lifetime of the father. The Court also relied on policy considerations involving spurious or delayed claims against an individual's estate.

Apart from the reference to the right of the personal representative of the father to bring a paternity action, the new provisions at §§767.45 to 767.53 contain similar references to arrest of the father (§767.465), blood tests (§767.456(3)), rights of cross-examination (§767.475), and other references which necessarily presume that the alleged father is still alive. Moreover, the policy considerations of spurious or delayed claims against an individual's estate still apply. We briefly discussed this matter with a member of the Wisconsin legislative council, who expressed the tentative view that the new provisions do not contemplate the filing of a paternity action against the estate of an individual alleged to be a child's father. In the absence of a court decision to the contrary, we conclude that unless the action is brought by the personal representative of the alleged father, a paternity action may not be maintained in Wisconsin following the death of the alleged father. We suggest that this question be resubmitted to us if a future case involves a posthumous paternity action brought by other than the personal representative of the alleged father, assuming that the wage earner died on or after July l, 1981.

The claims folder is returned herewith.