LEGITIMACY ~ LEGITIMATION — CHILD OF VOID OR VOIDABLE MARRIAGE — GEORGIA

Where children who were born in Illinois to an invalid marriage are legitimate under Illinois law, we held that Georgia would look to the law of Illinois in determining the personal status of each child

(E~ , Eugene - SSN ~ - RAIV [A~] - to ARC, Progs., Atl., 12/11/86)

You have requested our advice on whether Georgia would look to the law of the domicile of birth to determine the personal status of children in the following situation. Eugene E~ married Katie R. E~ (also known as "Ruth") on August 12, 1955 in Russell County, Alabama. This marriage was invalid due to a previous undissolved marriage of Mr. E~ to a Willie M. S~. Katie E~ divorced Eugene E~ in September 1978 in Columbus, Georgia.

The divorce decree shows that Eugene and Katie were parents to one named dependent Eula E~ born in March 6, 1978. Eula E~ was awarded child benefits on Eugene E~'s earnings record which terminated in June 1986 due to Eula's reaching the age of eighteen.

In May 1986 Katie filed for children's benefits for Maurice E~ , born on October 6, 1971 and David E~, born on May 2, 1970. Both birth certificates show the place of birth as Chicago, Illinois.

You have stated that there is a presumption of legitimacy in Illinois and that Illinois law would accept Katie E~ as a putative spouse of the deceased and that any children born of the union are considered legitimate, citing Ill. Rev. Stat., chapter 40, paragraph 212(C). You further state that you are unable to rebut the presumption of legitimacy.

We have previously addressed the issue you presented as to whether the State of Georgia would look to the laws of Illinois to establish a child's status for benefit purposes in a similar situation involving the laws of Louisiana. We noted that:

It is a general principle of law that the status or condition of a person as legitimate or illegitimate is to be determined everywhere by the law of the domicile of origin, that is, the law under which he or she was born, except, of course, insofar as that status might be affected by acts subsequent to birth or by the validity of a marriage contracted elsewhere. Restatement, Conflict of Laws §§ 137, 138; 87 A.L.R. 2d 1292, 1293; 10 Am Jur.2d, Bastards § 9. See, Bell, Kenneth, ~, RAIV (W~) to Dir., IPB (7/28/82).

Consequently, it is our opinion that the state of Georgia would recognize the legitimate status of the two E~ children born in Chicago since they are legitimate under Illinois law.

— STATUS UNDER ACT — Child - Illegitimate — LOUISIANA — INHERITANCE RIGHTS - By Illegitimate — GEORGIA

Although Georgia would look to the law of the domicile of birth, Louisiana, to determine the child's personal status (illegitimate), Georgia would not apply Louisiana's laws of descent and distribution to the estate of the deceased wage earner who died domiciled in Georgia. Applying Georgia law, an illegitimate child, who has been informally acknowledged would not have inheritance rights and is not entitled to surviving child's benefits under 42 U.S.C. § 416(h)(2)(A).

(B~, Kenneth, Deceased, ~, RA IV (W~) to Dir., IPS (7/28/82)

You have requested our opinion as to whether the State of Georgia will look to the laws of Louisiana to establish the entitlement of an illegitimate child.

The child, Kimberly M. W~, was born June 3, 1969, in Louisiana. At the time of the child's birth, the wage earner was domiciled in Louisiana. The child's parents were free to marry when the child was conceived and born and they never inter- married. The child's mother and the wage earner's father and sister submitted statements certifying that Kenneth B~ was the natural father of Kimberly and that he always orally acknowledged that fact. There was no written acknowledgment of paternity. The wage earner died on October 27, 1980, while domiciled in Georgia.

Under Louisiana law, an illegitimate child, such as Kimberly, who has been informally acknowledged, is deemed to have inheritance rights and thus can be entitled to Social Security survivor's benefits. Under Georgia law, an illegitimate child cannot inherit from her father unless, essentially, there is a court order declaring the child to be legitimate or there is a court order establishing the father of the illegitimate child. Ga. Code Ann. § 113-904. Clearly, Kimberly does not have the status of a "child" relative to the taking of the deceased number holder's intestate personal property under Georgia law. The question has been raised as to whether Georgia will look to the law of Louisiana under which the child can be entitled to benefits.

It is a general principle of law that the status or condition of a person as legitimate or illegitimate is to be determined everywhere by the law of the domicile of origin, that is, the law under which he or she was born, except, of course, insofar as that status might be affected by acts subsequent to birth or by the validity of a marriage contracted elsewhere. Restatement, Conflict of Laws §§ 137, 138; 87 A.L.R. 2d 1292, 1293; 10 Am Jur. 2d, Bastards § 9. Thus, in this claim, Kimberly's status as an illegitimate child was determined by the law of her domicile at birth, Louisiana. There have been no acts subsequent to her birth which are alleged to have legitimated her. Although Louisiana extends inheritance rights to illegitimate children who have been informally acknowledged, this in no way legitimates such a child. Kimberly's personal status is that of an illegitimate child.

Title 42 U.S.C. § 416(h)(2)(A) provides, in pertinent part, that, "in determining whether an applicant is the child ... of a fully ... insured individual..., the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property ..., if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, .... " Kenneth B~, the number holder, died domiciled in Georgia and under Georgia law, all personal property of the deceased person passes and is administered according to the law of his domicile. Squire v. Vazques, 183 S.E. 127 (Ga. 1935); Fenn v. Castelanna, 25 S.E.2d 796 (Ga. 1943). Thus, although Georgia would look to the law of the domicile of birth, there being no intervening acts affecting status, to determine Kimberly's personal status, Georgia would not apply Louisiana's laws of descent and distribution. See also, Childress v. Secretary of Health and Human Services, F.2d , No. 80-1489 (6th Cir. 5/28/80).

Therefore, it is our opinion that Kimberly W~ /B~ is an illegitimate child and that, as discussed above, she could not inherit from Kenneth B~ under the inheritance laws of the state of Georgia, the state in which the number holder was domiciled at the time of his death.