You have requested our opinion as to whether the State of Minnesota would apply Michigan
law in determining whether a parent-child relation- ship exists between Van F. R~
("Van"), the deceased wage earner, and Devin R~ ("Devin"). For the reasons given below,
we think Minnesota would apply Michigan's "mutual acknowledgment" provision and would
find that Devin is entitled to share in Van's estate. Therefore, we conclude that
Devin is entitled to child's benefits under section 216(h)(2) (A) of the Act. Van
died on April 3, 1986 in Minnesota, where he had lived for about nine months. Devin
was born on January 20, 1982, in Detroit, Michigan, to Iris G~ ("Iris") and has lived
with Iris since his birth. We agree with your determination that the evidence demonstrates
the existence of a "mutually acknowledged" parent-child relationship between Van and
Devin as defined in M.C.L.A. 700.111(4)(c). Van apparently saw Devin regularly when
he lived in Detroit, and he visited Devin at least twice in the eight months after
he moved to Minnesota. He gave the child toys and clothes, and photographs depict
Van and Devin in poses suggesting a familial relationship. Given this evidence, we
have no doubt that under Michigan law, Devin would be considered Van's child. See, M.C.L.A. 700.111(4)(c); POMS GN00306.135 (Michigan).
The Minnesota Probate Code establishes the territorial application of its provisions:
Except as otherwise provided in Chapter 524, Chapters 524 and 525 apply to (1) the
affairs and estates of decedents, missing persons, and persons to be protected, domiciled
in this state, and {2) the property of non- resident decedents coming into this state
or property coming into the control of a fiduciary who is subject to the laws of this
state.
M.S.A. 524.1-301 (emphasis supplied). The Minnesota Probate Code also establishes
the jurisdiction of the probate courts in that State:
(a) To the full extent permitted by the constitution, the court has jurisdiction over
all subject matter relating to estates of decedents, including construction of wills
and determination of heirs and successors of decedents.
(b) The court has full power to make orders, judgments and decrees and take all other
action necessary and proper to administer justice in the matters which come before
it.
M.S.A. 524.1-302 (emphasis supplied). Since Van was apparently domiciled in Minnesota
at the time of his death, the Minnesota probate courts would have jurisdiction over
Van's estate, including the question of Devin's status as an heir. [1]
The issue then becomes whether a Minnesota probate court would apply Minnesota law
or Michigan law in determining Devin's right to share in Van's estate. The general
rule is that the status of a child as legitimate or illegitimate for purposes of inheritance
is governed by the law of the child's domicile, as long as recognition of that status
does not violate the public policy of the forum State. See, 10 Am. Jur.2nd Bastards §152 (1963). Furthermore, in determining whether to recognize
a foreign law governing status, the courts distinguish between laws that merely afford
an illegitimate child the right to inherit and laws that render a child born out of
wedlock legitimate and thus afford him the same inheritance rights a legitimate child
has. The courts characterize the former as statutes of descent and generally do not
afford them extraterritorial operation. On the other hand, the courts generally do
give extraterritorial effect to the latter class of laws on the theory that the child's
status as legitimate, once determined, follows him everywhere. Id.; see, Perez v. Gardner, 277 F.Supp. 985, 992 (E.D. Wis. 1967).
We think Minnesota would apply the general rule and look to Michigan law to determine
Devin's status as Van's heir. The parent-child relation- ship between Van and Devin
that arises by virtue of Michigan's "mutual acknowledgment" provision operates to
legitimate Devin for all purposes; he possesses "the identical status, rights, and
duties of a child born in lawful wedlock effective from birth." M.C.L.A. 700.111(b)
(West 1980). Thus, the "mutual acknowledgment" provision does not merely afford inheritance
rights; it is instead a general legitimation statute, and as such it bestows upon
a child like Devin a status that should be recognized for all purposes in all States,
absent compelling policy reasons in the forum State.
In our opinion, a Minnesota court would not find compelling policy reasons requiring
it to apply its own law. Until recently, in Minnesota an illegitimate child could
share in his father's estate only if the father had acknowledged paternity in writing,
or if paternity had been determined in a court proceeding. See, MINN. STAT. ANN. 525.172 (West 1987 Supp.). Effective for decedents dying after
December 31, 1986, however, a Minnesota child can inherit from his father regardless
of his parent's marital status, and for purposes of intestate succession, the parent-child
relationship may be established in accordance with any of the procedures set forth
in the Minnesota Parentage Act, MINN. STAT. ANN. 257.51 through 257.74 (West 1982).
[2] See, MINN. STAT. ANN. 524.2-109 (West 1987 Supp.). Significantly, one provision of the
Minnesota Parentage Act bears a striking resemblance to Michigan's "mutual acknowledgment"
provision. Minnesota presumes the existence of a parent-child relationship if:
While the child is under the age of majority, he [the putative father] receives the
child into his home and openly holds out the child as his natural child.
MINN. STAT. ANN. 257.55(d) (West 1982). Given the similarity between this "open acknowledgment"
provision and the "mutual acknowledgment" provision, as well as the fact that Van
died less than a year before Minnesota amended its law to allow inheritance based
on "open acknowledgment," we do not believe a Minnesota court would find its public
policy violated by application of Michigan law. [3]
We recognize that Minnesota has a concern in the devolution of the estate of one of
its domiciliaries. Nevertheless, we think a Minnesota court would find Michigan's
concern in this matter to be far greater. Devin was born in Michigan at a time when
Van was domiciled in that State. Most, if not all, of the actions that establish the
existence of a "mutually acknowledged" parent-child relationship occurred in Michigan.
Moreover, Van had lived in Michigan for many years and had left that State less than
a year before he died. He returned to Michigan at least twice after he moved to visit
Devin, who remains a Michigan domiciliary. In our view, Michigan's overriding concerns
in this matter would further support application of Michigan law by a Minnesota court.
Finally, we note your concern that the regional POMS transmittal provision GN 00306.135.D {Michigan) limits the applicability of the "mutual acknowledgment" provision to
cases in which the "NH" died domiciled in Michigan. Assuming the law of the child's
domicile governs his status for inheritance purposes, the general rule is that where
legitimation is based upon acts of acknowledgment by the father, the status of the
child is governed by the law of the father's domicile when the acts occurred. See, 10 Am. Jur.2d Bastards §152 (1962); POMS GN 00306.110. Thus, as long as' the acts demonstrating "mutual acknowledgment" occurred in Michigan,
the "NH" need not die in Michigan or be living in Michigan when the claim is filed
in order to invoke the presumption of legitimacy based on mutual acknowledgment. We
therefore recommend that the regional POMS manual provision be amended to delete the
two references to "domiciled in Michigan." You may also wish to include in the regional
POMS transmittal a reference to POMS GN00306.110 as guidance to adjudicators in cases
where the "NH" is not domiciled in Michigan when he dies or when the claim is filed.
POMS GN00306.110 reflects the general rule set forth above.