This responds to your request for assistance in determining whether Anthony D. S~
is entitled to benefits as the child of the deceased wage earner, Michael J. S~ .
The claimant was born in Tennessee in 1968, and the wage earner died domiciled in
Indiana in 1981. Specifically, you have asked whether Indiana courts would apply Tennessee
law regarding the inheritance rights of illegitimate children. We answer this question
in the negative, and accordingly conclude that the claimant is not entitled to benefits
under the "state law" test of Section 216(h)(2)(A) of the Social Security Act. However, we think that the claimant may, after further
development, be entitled to benefits under the "written acknowledgement" test of Section
216(h)(3)(C)(i)(I) of the Act.
Facts
The relevant facts may be briefly summarized: Anthony D. S~ was born on November 24,
1968 in Kingsport, Tennessee. A "hospital birth work- sheet" containing information
furnished by Connie H~ "S~ ", the child's mother, listed the wage earner as Connie's
husband and Anthony's father. The worksheet indicated that Connie and the wage earner
had married on January 2, 1968 in Ohio (no city specified). The child's birth certificate,
apparently based on the worksheet, listed the child as "Anthony D. SIX, lIB," the
mother as "Connie H~ S~," and the father as "James M. S~ . [5] The hospital admission record for "Mrs. Connie S~" lists the diagnosis as "pregnancy"
and lists "Mr. M. Sin," the patient's "husband," as the person responsible for payment
of hospital bills and the person to contact in case of an emergency. This record also
indicates that the patient's "husband" furnished the information contained in the
record. The hospital admission record for "Baby Boy (Connie) lists "Michael S~," the
patient's "father," as the person responsible for the hospital account. The listed
diagnosis is "newborn." This latter record does not identify the person furnishing
the information. The claims folder contains no information concerning the actual payment
of the hospital bills.
Judy S~ , Connie H~ 's sister, states that Connie and the wage earner were not married
but began living together in Kingsport, Tennessee at least six months prior to Anthony's
birth. Both Connie and the wage earner were born in Indiana. Several other relatives,
including the wage earner's mother, the wage earner's brother, and Connie's brother,
indicate that Connie and the wage earner lived together in Kingsport beginning in
1966 or 1967. According to Judy S~, because Connie had a serious heart condition and
could not take care of the child, she and Anthony went to live with Judy in Richmond,
Indiana about a month after Anthony's birth. Connie died on January 21, 1972, and
Anthony has continued to live with Judy S~ in Richmond
The wage earner married Donna W~ in Richmond, Indiana on June 17, 1969. The wage earner
lived with Donna in Richmond until his death on November 11, 1981 from an accidentally
self-inflicted gunshot wound. The record indicates that Donna has three children -
James M. S~ (born April 17, 1967); Tina M. S~ (born May 11, 1969); and Angel R. S~
(born June 19, 1971). The wage earner acknowledged the latter two children on his
1979 application for disability benefits. [6] The wage earner did not list James M. S~ on his application, not did Donna S~ apply
for child's benefits on behalf of James M. S~ The wage earner did not list Anthony
S~ on the application. However, several individuals, including Donna S~ , Judy S~,
the wage earner's mother and brother, and Connie H~ 's brother, all state that the
wage earner verbally acknowledged Anthony as his child. Donna S~ also states that
the wage earner rarely saw Anthony because Connie's family would not let him. Donna
also indicates that the wage earner did not list Anthony on his tax returns or "anything
else" because he did not have custody of the child.
Judy S~ applied for benefits on behalf of Anthony on August 3, 1982. Judy explained
that she had not previously applied for benefits because she did not have the wage
earner's social security number. The claim was initially denied but was later reopened
under the Boatman order. Judy has supplied a photograph of an infant, identified as
Anthony, on the back of which is written "Tony S~, My Son." This statement is not
signed, although the handwriting appears to match the wage earner's writing from the
file.
DISCUSSION
Section 216(h){2)(A) of the Social Security Act provides that a child qualifies for benefits if he or
she would be entitled to inherit personal property as a child of the wage earner under
the intestate succession laws of the state in which the wage earner died domiciled.
Indiana law provides that an illegitimate child may inherit from his father if (1)
the parents of the child intermarry and the putative father acknowledges the child
or {2) the paternity of the child is established by law (in a judicial proceeding)
during the father's lifetime. Ind. Code Ann. §29-1-2-7(b) (West 1979) —[7] ; POMS GN 00306.135 ("Indiana" entry). See also Burnett v. Camden, 254 N.E.2d 199 (Ind.), reheating denied 255 N.E.2d 650—-(Ind.), appeal dismissed
and cert. denied 399 U.S. 901 (1970). Neither of these conditions are met here. The
issuance of the Tennessee birth certificate listing the wage earner as the father
does not satisfy the second condition stated above. Leaving aside the fact that the
wage earner was listed on the birth certificate based on false information supplied
by Connie H~ that the parties were "married," the Indiana Supreme Court has held that
issuance of a birth certificate does not constitute the judicial determination of
paternity required by the statute. Burnett v. Camden, 254 N.E.2d at 201.
Under the law of Tennessee, where the claimant was born, an illegitimate child may
inherit from his father if: (1) the child is declared legitimate in a court decree;
(2) the parents intermarry and the father acknowledges the child; (3) paternity is
established in a judicial proceeding during the father's lifetime; (4) effective March
30, 1978, the child's parents participate in a marriage ceremony before or after the
birth of the child even though the attempted marriage is void; or {5) effective March
30, 1978, paternity is established after the father's death by "clear and convincing
proof." Tenn. Code Ann. §§31-206, 36-234, 36-302, 36-303, and 36-307. See also Allen v. Harvey, 568 S.W.2d 829 (Tenn. 1978); Pickett v. Brown, 638 S.W.2d 369 (Tenn. 1982); Childtess v. Secretary, 679'F.2d 623 {6th Cir. 1982); POMS GN 00306.135 ("Tennessee" entry). Only under the first two methods is the illegitimate child actually
legitimated. The latter three methods, including the posthumous establishment of paternity
by "clear and convincing proof" (the only one of the above conditions that the claimant
may arguably meet), merely confer inheritance rights upon the illegitimate child.
Allen v. Harvey, supra; Childtess v. Secretary, supra.
We assume without deciding that the claimant meets the "clear and convincing proof"
standard under Tennessee law. However, we conclude that Indiana courts would not apply
this standard in determining whether Anthony could inherit personal property from
the wage earner. We addressed a similar issue in Alfred D~ , ~, RA V (D~) to Director,
IPBV, 6/27/83, where we considered whether Illinois (where the wage earner died domiciled)
would apply its own law of legitimation and intestate succession or would look to
the law of Wisconsin (where the claimant was born and resided, and where the wage
earner was domiciled when the child was born) or Michigan {where the wage earner lived
when he acknowledged the child). We stated that under general conflict of laws principles,
so long as the law of the decedent's domicile does not absolutely exclude from inheritance
those born out of wedlock, the status of the child as "legitimate" for purposes of
inheritance as a "legitimate"1' child in the domiciliary state (whether the child
is born legitimate or subsequently legitimated by force of law) is governed by the
personal law of the child rather than the law of the decedent's domicile.[8] The status of the child as legitimate will thus be determined by the law of any state
that achieves legitimation, so long as that state has a reasonable connection to the
facts. For example, a child will usually be held "legitimate" if such is his status
under the law of the state where either the parent or child was domiciled when the
parent performed a legitimating act (such as acknowledgement). In that case, the child's
status as "legitimate" will ordinarily be recognized by the decedent's domicile and
the child will be able to inherit under the latter state's laws as a legitimate child.
Here, if while either the wage earner or the claimant was domiciled in Tennessee the
wage earner had married Connie H~ and acknowledged the child (the first method above),
or the child had been declared legitimate in a court decree (the second method), Anthony
would have been legitimated under Tennessee law. Anthony would have then been treated
as a "legitimate" child for purposes of inheritance under Indiana law, rather than
as an illegitimate child with inheritance rights.
However, we also explained in D~ that in contrast to those statutes of a foreign state
that legitimate a child born out of wedlock and thus accord to him the right of inheritance
as a legitimate child in the domiciliary state, are these statutes that enable the
illegitimate child to inherit as such based on performance of acts that do not legitimate
him. Since the latter statutes are ones merely of descent that govern solely the inheritance
of property, rather than laws conferring status, they have no extraterritorial effect
so as to control the descent of personal property of the domiciliary of another state.
In other words, foreign law that enables a child to inherit as illegitimate, as distinguished
from foreign law that legitimates a child and thus enables him to inherit as legitimate
in other states, does not control intestate succession to personal property of a decedent
who died domiciled in another state.
Indiana follows these principles. Specifically, Indiana does not apply, for purposes
of intestate succession to personal Property of persons who die domiciled in the state,
the laws of other states that confer inheritance rights on illegitimate children without
legitimating them. Estate of Schick, 274 N.E.2d 291 (Ind. App. 1971). As noted above, the posthumous determination of
paternity by "clear and convincing proof" does not legitimate a child under Tennessee
law but only confers inheritance rights on an illegitimate child. Allen v. Harvey, supra; Childress v. Secretary, supra. In Childress, a claimant for child's benefits argued that Georgia, where the wage earner died
domiciled, would look to the Tennessee "clear and convincing proof" standard to determine
whether the claimant was legitimate. However, the Sixth Circuit held that under the
Tennessee Supreme Court's decision in Allen, satisfaction of the "clear and convincing
proof" standard did not legitimate the child but only conferred inheritance rights.
The Court also noted that the claimant had not been legitimated under the applicable
provisions of Tennessee law. 679 F.2d at 627-628. The Court concluded that Georgia
would not apply Tennessee law in determining the inheritance rights of the claimant.
We think that the same result follows in this case. Since the "clear and convincing
standard" of Tennessee law does not render a child "legitimate," Indiana courts would
not apply this standard in determining whether Anthony S~ could inherit personal property
from the wage earner. Since Anthony was not legitimated under Tennessee law or the
law of any other state having a significant relationship with the facts, and since
Anthony cannot inherit as an illegitimate under Indiana law, we conclude that Anthony
is not entitled to benefits under the "state law" test of Section 216(h)(2)(A) of the Act.
However, we think that the claimant may, after some further development, be entitled
to benefits under the "federal law" test of Section 216{h){3){C) (i)(I) of the Act. That section provides that a claimant who is the son or daughter of an
insured individual but who does not qualify under the "state law" test of Section
216(h)(2)(A) shall be entitled to benefits if the insured individual prior to his death acknowledged
in writing that the claimant was his son or daughter. We think that there is sufficient
evidence that Anthony is the wage earner's biological son. As for the "written acknowledgement"
requirement, we think that the photograph supplied by Judy S~ may meet this requirement.
[9]
The handwritten statement "Tony S~, My Son" on the back of the photograph is admittedly
not signed by the wage earner. However, for a document to be considered written acknowledgement,
it is not necessary that the document be signed by the wage earner (or even be in
his handwriting) so long as there is sufficient evidence that the document was prepared
by or at the direction of the wage earner. SSR 72-32, C.B. 1972 p. 34 (specifically
holding that a document relied upon to establish written acknowledgement need not
be signed by the wage earner, and noting that Congress did not require "acknowledgement
in writing signed by the wage earner"); see also POMS GN 00306.170. Assuming that the photograph in question is that of the claimant and the handwriting
is that of the wage earner, we see no reason why the photograph cannot be considered
"written acknowledgement." People do not normally sign their names to photographs
of themselves or their family. We note that the handwriting appears to match that
of the wage earner contained elsewhere in the file. You may wish to authenticate the
handwriting through an individual familiar with the handwriting. Expert opinion is
not required; even in federal court, nonexpert opinion as to the genuineness of handwriting
by an individual familiar with such writing is sufficient. Fed. R. Ev. 901{b){2).
Thus, assuming that the photograph is that of the claimant and the authenticity of
the handwriting on the back is satisfactorily established, the photograph constitutes
a "written acknowledgement" qualifying the claimant for benefits under Section 216(h)(3)(C)(i)(I).
We conclude that the claimant is not entitled to benefits under Section 216(h)(2)(A) but may, following the development suggested above, be entitled under Section 216(h)(3)(C)(i)(I). The claims folder is returned herewith.