QUESTION PRESENTED
On behalf of Region VII, you have asked us whether, under Indiana law, a surviving
nonmarital child who established entitlement to Child's Insurance Benefits (CIB) by
virtue of having obtained a posthumous paternity judgment, should be found entitled
to CIB prospectively from the date of entry of judgment, or from an earlier date.
For the following reasons, it is our opinion that under Indiana law such a judgment
establishes inheritance rights as of the time of the father's death, because the paternity
suit was filed within five months of the father's death. In such a case, a child becomes
entitled to CIB as of the latter of the date the father died or the sixth month preceding
the month that the child filed her CIB application.
BACKGROUND
Eddie A. G~ (Mr. G~), a disability benefits recipient, died on September 24, 1994,
a resident of Indiana. On September 29, 1994, an estate was opened for Mr. G~ in Indiana
circuit court, and Samantha D. E~ (Samantha), through her mother, Christine D. E~
(Ms. E~), filed a paternity petition to establish that Mr. G~ was Samantha's father.
Mr. G~'s estate, which had been closed on December 6, 1994, there being no assets
to distribute, was reopened when blood tests showed a 99.97% probability that Mr.
G~ was Samantha's father. The court appointed Mr. G~'s brother to represent his interests.
On October 11, 1995, the parties filed an Agreed Entry for Determining Paternity,
and the Court entered Judgment finding that Mr. G~ was Samantha's father, and ordering
the State Department of Health to issue a new birth certificate for Samantha indicating
that Mr. G~ was her father.
On October 13, 1995, Ms. E~ applied for CIB on Samantha's behalf.
Samantha was found entitled to CIB beginning October 1995, the same month that the
Indiana Circuit Court entered judgment finding that Mr. G~ was Samantha's father.
The issue presented is whether Samantha's initial month of entitlement can be an earlier
date.
ANALYSIS
I. SOCIAL SECURITY LAW & POLICY
The Social Security Act provides that every "child" of a deceased wage earner (DWE)
is entitled to CIB. If the DWE was not properly married to the child's surviving parent
when the child was born, or if the DWE had not adopted the child, the Act provides
seven additional ways for the DWE to establish a child's entitlement. One of those
ways is for the Agency to determine, under the laws of intestate succession of the
DWE's state of residence at death, whether the child would be eligible to inherit
the DWE's intestate personal property. The Agency has currently determined that Samantha
is entitled to CIB based on the Indiana circuit court's paternity finding as of the
date of entry of the judgment.
After the Agency determines that a CIB applicant would be eligible to inherit the
DWE's property, it must determine the date that the child's CIB entitlement begins.
The date that the child's CIB entitlement begins depends on whether the child would
be eligible to inherit as of the date of the DWE's death, or not until the DWE was
determined to be the child's parent. This question ultimately depends on when the
Supreme Court of Indiana would decide that a child obtains the right to inherit under
Indiana Law.
II. INDIANA LAW
The relevant sub-sections of Indiana Code 29-1-2-7, subtitled "Illegitimate children;
inheritance," provide that:
(b) For the purpose of inheritance (on the paternal side) to, through, and from a
child born out of wedlock, the child shall be treated as if the child's father were
married to the child's mother at the time of the child's birth, if: (1) the paternity
of the child has been established by law in a cause of action that is filed: (A) during
the father's lifetime; or (B) within five (5) months after the father's death; or
(2) the putative father marries the mother of the child and acknowledges the child
to be his own. (c) The testimony of the mother may be received in evidence to establish
such paternity and acknowledgment, but no judgment shall be made upon the evidence
of the mother alone. The evidence of the mother must be supported by corroborative
evidence or circumstances. (d) If paternity is established as described in this section,
the child shall be treated as if the child's father were married to the child's mother
at the time of the child's birth, so that the child and the child's issue shall inherit
from the child's father and from the child's paternal kindred, both descendants and
collateral, in all degrees, and they may inherit from the child. The child shall also
be treated as if the child's father were married to the child's mother at the time
of the child's birth, for the purpose of determining homestead rights and the making
of family allowances.
III. HOW THE SUPREME COURT OF INDIANA WOULD LIKELY INTERPRET SECTION 29-1-2-7
To determine when Samantha obtained the right to inherit, we first consider when the
Supreme Court of Indiana would find that she obtained the right to inherit under the
plain meaning of Section 29-1-2-7. If the plain meaning is ambiguous, then we look
to when the Supreme Court of Indiana would find that it was the drafters' intent that
Samantha obtained the right to inherit.
Section 29-1-2-7 twice states that, when a child establishes the right to inherit,
"the child shall be treated as if the child's father were married to the child's mother
at the time of the child's birth." We think that the plain meaning of this language
is that Samantha obtained the right to inherit when she was born.
Our interpretation of the plain meaning of the phrase "the child shall be treated
as if the child's father were married to the child's mother at the time of the child's
birth," is perhaps subject to question by additional qualifying language which arguably
limits a finding of paternity under Section 29-1-2-7 to inheritance only. We opined
in 1959, considering the predecessor statute to Section 29-1-2-7, that similar limiting
language indicated that Indiana's intestacy statute did not "legitimate" the children.
That is, when paternity was established under Indiana's prior intestacy statute, we
previously opined that children obtained the right to inherit only as of the date
that the father acknowledged paternity. Applying a similar rationale to a posthumous
paternity determination, a child would obtain the right to inherit only from the date
that paternity was established. While we believe that a legitimation analysis is relevant
when paternity is established during the father's lifetime, if legitimation does apply
to posthumous paternity determinations, then the plain meaning of Section 29-1-2-7
becomes less clear. Notwithstanding our prior opinion regarding the predecessor statute
to Section 29-1-2-7, however, we believe that the Supreme Court of Indiana would still
find that, under the plain language of Section 29-1-2-7, Samantha obtained the right
to inherit when she was born.
We further believe that, should the Supreme Court of Indiana determine that the plain
language of Section 29-1-2-7 is ambiguous, the Court would find that if it was not
the intent of the drafters of Section 29-1-2-7 for Samantha to obtain the right to
inherit when she was born, it was certainly their intent that she retained it no later
than the date her father died. For when Samantha was determined posthumously to have
a right to inherit, she would inherit from her father's estate as of the date that
her father died, not some later date. In sum, under either a plain language analysis
or a legislative intent inquiry, it is our opinion that the Supreme Court of Indiana
would find that Samantha obtained the right to inherit no later than the date that
her father died.
One final consideration is that the date that a child's CIB entitlement begins may
never be earlier than the sixth month preceding the month that the CIB application
was filed. Samantha can thus be entitled to CIB beginning the latter of the date her
father died, or the sixth month preceding the month that her CIB application was filed.
Samantha's father died on September 24, 1994, and she filed her CIB application on
October 13, 1995. Therefore, the first month that Samantha can be entitled to CIB
is the sixth month preceding October 1995.
IV. OTHER QUESTIONS
We have also been asked whether the Agency could have determined, on the basis of
the blood tests alone, that Samantha was the biological child of Mr. G~. The Indiana
paternity statute provides that a man is presumed to be a child's biological father
if a blood test indicates paternity with at least ninety-nine percent certainty. Based
on the blood test, the Agency could have determined that the Supreme Court of Indiana
would find that the blood test establishes paternity. Establishing paternity alone,
however, is insufficient to establish entitlement to CIB; to establish entitlement
to CIB based on a blood test, a child must establish that the highest court of the
state would find that this blood test establishes not merely that Mr. G~'s paternity,
but also that his paternity established her right to inherit. To establish the right
to inherit in Indiana, a child must not only establish paternity, but also must do
so in a cause of action filed during the father's lifetime or within five months after
the father's death. Thus, while the Agency could have determined, based solely on
the blood test, that Samantha was the biological child of Mr. G~, the Agency would
have only been able to determine that she established the right to inherit, and thus
was entitled to CIB, if it also knew that, based on this blood test, a cause of action
to establish paternity was filed while Mr. G~ was alive or within five months after
he died.
Finally, attached to the query regarding Samantha's CIB application were memoranda
from the Office of General Counsel for Region VI and Region VII. Region VI opined,
based on Arkansas law, that when paternity is established posthumously, the surviving
child is eligible for CIB as of the date that the court determined paternity. Region
VII opined, based on Missouri law, that the surviving illegitimate child was entitled
to CIB as of the date of her father's death. We were asked why, assuming that both
the Arkansas and Missouri laws rely on a form of clear and convincing evidence to
determine inheritance rights, "would a court decree, based on clear and convincing
evidence, restrict the time at which inheritance rights are established if such evidence
alone establishes inheritance rights at the point of death?"
The issue, however, is not what evidentiary standard a state applies, but whether
the state law allows a child to inherit as of the date that a paternity judgment is
entered, or at some earlier date. Because the opinions from Regions VI and VII are
based on laws of different states, they are not necessarily inconsistent. If Region
VII has additional questions concerning the law of those states, it should refer those
questions to the appropriate Regional Chief Counsel's office.