You have requested our opinion as to whether Lora M. S~ (born January 7, 1969), Angela
M. S~ (born February 2, 1970), and Terry F. S~. (born March 24, 1971), are the children
of the deceased wage earner (DWE), Terry F. S~ within the meaning of the Social Security
Act, as amended. The DWE (putative father) and the childrens' mother, Ethel S. C~
intermarried on August 30, 1971.
The facts as contained in the file are that Lora was born in Florida. Her birth certificate
shows the DWE as the father; the informant is not shown. Angela and Terry, Jr., were
born in Michigan and both birth certificates show the DWE as the father. The informant
for Angela's birth certificate is not shown; Ethel S. the mother, is listed as the
informant on Terry, Jr.'s, birth certificate. On August 30, 1971, the DWE and Ethel
S. C~ were married in Indiana. Their marriage certificate shows that both husband
and wife were living in Michigan at that time. The DWE died on December 16, 1981,
while domiciled in North Carolina.
The May 16, 1983, letter from Clair M. P~, Director of the Great Lakes Program Service
Center, to this office indicates that the laws of the States in which the children
were born (Florida and Michigan) as well as the State in which the wage earner died
(North Carolina) would recognize the children as children of the DWE due to the intermarriage
of the parents; however, Indiana, the State in which the legitimating act took place,
would not recognize the children as legitimate. There is no written acknowledgement
and the wage earner was neither living with nor supporting the children at the time
of his death.
Inasmuch as the decedent died domiciled in North Carolina, the laws of North Carolina
will determine what class of persons will inherit property in that State since that
is a question of descent and not status. Where the law of the domicile at death provides
no statute of inheritance absolutely bestowing inheritance rights upon legitimated
persons, the rule that the law of the domicile at death determines inheritance rights
does not in itself necessarily resolve the question of inheritance without reference
to the question of what law determines the status of the child as legitimate or illegitimate.
On the last point, the courts in an overwhelming majority of the States, including
North Carolina, take the position that the question of whether a particular child
has acquired the requisite status of legitimacy to bring him within the class of persons
who are permitted to inherit by the law of the domicile at death is a question, not
of descent and distribution, but of personal status and as such is governed by the
personal law of the child, and the existence or acquisition of a legitimate status
by the child's personal law will be given effect under the inheritance law of the
domicile at death (so long as such recognition does not violate the public policy
of the forum), as will the denial of such status. 87 ALR 2d 1276 §3; Teague v. Wilson, 220 N.C. 241, 17 S.E.2d 9 (1941).
In this claim, however, the personal law of each of the three children governing the
status of each child with respect to legitimation need not be developed because North
Carolina law absolutely bestows inheritance rights on such persons. Under the provisions
of the General Statutes of North Carolina §49-12,
"When the mother of any child born out of wedlock and the reputed father of such child
shall intermarry or shall have intermarried at any time after the birth of such child,
the child shall, in all respects after such intermarriage be deemed and held to be
legitimate and the child shall be entitled, by succession, inheritance or distribution,
to real and personal property by, through, and from his father and mother as if such
child had been born in lawful wedlock .... "
See also, Fowler v. Fowler, 131 N.C. 169, 42 S.E. 563 (1902).
Thus, it is our opinion that Lora M., Angela M., and Terry F. S~, are entitled to
inherit the intestate property of the decedent, under the laws of North Carolina,
and are children of the DWE within the meaning of the Social Security Act, as amended.