You have requested our opinion on the effect, under Mississippi intestacy law, of
evidence that number holder ("NH"), R~, orally acknowledged J~ ("Claimant") as his
child. Noting evidence found in written statements from Claimant's mother and NH's
mother, sister, daughter, and cousin that NH had orally acknowledged Claimant as his
child, you asked:
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•
Can oral acknowledgement be used to establish clear and convincing evidence under
Mississippi intestacy law?
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•
Is the evidence submitted sufficient to establish that Claimant is the child of NH?
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•
If the evidence is sufficient, can the child be paid retroactively or prospectively
from the date the evidence was submitted?
We conclude that evidence of oral acknowledgment can be used, along with other evidence
in a record, to establish clear and convincing evidence of child status under Mississippi
intestacy law, but do not believe the oral acknowledgments present here would alone satisfy that standard. However, if all the potential heirs to NH's estate were either
made parties in an heirship proceeding or given notice of such proceedings and all
either agreed or failed to deny that NH was the child's father, then paternity could
be established by clear and convincing evidence. Furthermore, if Claimant did qualify
for benefits in this case, she would not qualify for benefits for months before the
Social Security Administration (SSA) determined eligibility.
FACTS
NH died on May XX, 2004, domiciled in Mississippi. He and Claimant's mother never
married. Claimant's mother applied for child's benefits on March XX, 2004, on Claimant's
behalf. No court has ever ordered NH to pay child support to Claimant or issued a
paternity order establishing that NH was Claimant's father. Claimant's mother alleges
that NH provided periodic cash support but she has no documentation of this support.
She said NH took out health insurance with a prior employer for Claimant but she has
no documentation to show that he did. She presented no insurance cards verifying coverage
or benefits explanations indicating that NH's insurance provider ever paid for Claimant's
medical care. Claimant's mother claims the employer has closed and moved overseas
and she has no contact information for them nor does she know the name of the insurance
carrier. Claimant's mother says NH always acknowledged Claimant as his child to family
and friends. She submitted signed statements from five individuals, namely NH's mother,
sister, daughter, and cousin and Claimant's maternal grandmother, indicating that
NH orally acknowledged Claimant to them. NH's mother also noted that when NH died,
he had birthday cards for Claimant in his car. Apparently, NH's mother never provided
these birthday cards as evidence. Claimant's maternal grandmother also reported that
NH said that he wanted to take care of Claimant and that he left her money for school
supplies. There is no evidence that NH was the only person with whom Claimant's mother
had sexual intercourse prior to Claimant's birth.
ANALYSIS:
Paternity Issues
Section 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. 416(h)(2)(A) (2005),
provides the only possible basis for the claimant's entitlement.* That section states,
"[i]n determining whether an applicant is the child . . . of a fully or currently
insured individual for purposes of this title, the Commissioner of Social Security
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 . . . ." § 216(h)(2)(A). NH was
domiciled in Mississippi when he died; therefore Mississippi law applies.
Under the applicable Mississippi statute,
An illegitimate shall inherit from and through the illegitimate's natural father and
his kindred . . . if:
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(a)
The natural parents participated in a marriage ceremony before the birth of the child,
even though the marriage was subsequently declared null and void or dissolved by a
court; or
-
(b)
There has been an adjudication of paternity or legitimacy before the death of the
intestate; or
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(c)
There has been an adjudication of paternity after the death of the intestate, based
upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking
an adjudication of paternity is filed within one (1) year after the death of the intestate
or within ninety (90) days after the first publication of notice to creditors to present
their claims, whichever is less; and such time period shall run notwithstanding the
minority of a child. This one-year limitation shall be self-executing and may not
be tolled for any reason, including lack of notice. No claim of inheritance based
on an adjudication of paternity, after death of the intestate, by a court outside
the State of Mississippi shall be recognized unless:
-
(i)
Such court was in the state of residence of the intestate at the time of the intestate's
death;
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(ii)
The action adjudicating paternity was filed within ninety (90) days after the death
of the intestate;
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(iii)
All known heirs were made parties to the action; and
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(iv)
Paternity or legitimacy was established by clear and convincing evidence.
MISS. CODE ANN. § 91-1-15(3) (2005).
NH did not marry Claimant's mother and is now deceased. No court adjudicated Claimant's
paternity or legitimacy before NH died. Consequently, Claimant can inherit from the
NH only if there is an adjudication of paternity based upon clear and convincing evidence.
Id. See also, In re Estates of Davidson v. Shannon 794 So.2d 261, 265 (Miss. Ct. App. 2001); In re Estate of Grubbs v. Woods, 753 So.2d 1043, 1052 (Miss. 2000). Although § 91-1-15 specifically requires an adjudication
of paternity in an "heirship proceeding," brought, at least, within one year after
the insured's death, SSA does not consider limitations to adjudication by a particular
state court or time limits of the sort included here when it determines child status
under § 216(h)(2)(A) of the Act. See 20 C.F.R. § 404.355(b)(2)(2005). Rather, SSA uses the standard of proof that the
state court would use as the basis for the SSA child-status determination. Id.
The clear and convincing standard is a heavy burden of proof that is higher than the
preponderance of the evidence standard, see Estate of G~, 753 So.2d at 1048, 1052, but lower than the beyond a reasonable doubt standard,
see Estate of Taylor v. Thompson, 609 So.2d 390, 394 (Miss. 1992). You have asked whether oral acknowledgement by
the father as evidenced by written statements from NH's relatives and Claimant's mother
and maternal grandmother constitute clear and convincing evidence of paternity in
Mississippi. We found no cases that address whether evidence of oral acknowledgement,
alone, constitutes clear and convincing evidence. However, case law related to an
earlier version of MISS. CODE ANN. § 91-1-15, though not directly on point, may be
instructive.
Prior to 1981, the former MISS. CODE ANN. § 91-1-15 and interpretive case law required
the illegitimate child to prove paternity and then prove that the alleged father acknowledged
the child as well as married the child's mother. See Ivy v. Illinois Central Gulf Railroad Co., 510 So.2d 520, 523 (Miss. 1987) (citing Nichols v. Sauls Estate, 165 So.2d 352 (1964) and Hulitt v. Jones, 72 So.3d 204 (1954)). Thus, in these older cases based on the former statute, proof
of acknowledgement of paternity was an issue separate from proof of paternity. See, e.g. Thomas v. Thomas, 25 So.2d 710, 710 (Miss. 1946)(noting that for the plaintiff to become a lawful
heir in Mississippi, "it must be shown first that she was and [sic] natural daughter
of [the decedent], that both parents were later lawfully married and that the father
acknowledged her as his daughter in this State"). Open acknowledgement by the putative
father is no longer a prerequisite to a child's right to inherit. I~, 510 So.2d at 525. Thus, these older cases are only mentioned to provide some guidance
as to what types of evidence would show an acknowledgment of paternity.
These older cases address what constitutes clear and convincing evidence of a father's
acknowledgment of paternity under Mississippi law. For example, in Crosby v. Triplett, 195 So. 2d 69 (Miss. 1967), the Mississippi Supreme Court considered the pre-1981
statute and held that clear and convincing evidence had shown that the decedent over
a long period of time freely acknowledged the child as his daughter. The court found
the decedent's "words, acts, and continuous conduct evidencing his love for the appellant
and his abiding belief that she was his daughter" demonstrated the father's acknowledgment.
Id. at 71. The C~ court considered testimony from an eighty-seven year old school teacher that, when
the child was six years old, the alleged father brought the child to school and enrolled
her as his daughter, that when the weather was inclement, he would come and pick the
child up, and that the alleged father recognized the child as his daughter at all
times, and concluded the testimony was clear and convincing evidence of the father's
acknowledgment. Id. The father also frequently visited his daughter and her husband, built a house for
his daughter, addressed the child as "Dear Daughter" or "Baby" in correspondence,
and signed his letters to her "Your daddy" or "Dad." Id. This evidence was deemed clear and convincing evidence of acknowledgement of paternity.
In interpreting the same pre-1981 statute in H~, the Mississippi Supreme Court noted that the evidence to support a finding of acknowledgement
of paternity should be clear, convincing and unambiguous. H~, 72 So.2d at 206. The court determined that despite the fact that recognition of
paternity is often proven by manner of treatment of the child, a reputed father may
admit that the child is his and thereby recognize such child, even though he neglects
to perform duties of a father. Id. According to the H~ court, the acknowledgement contemplated by statute respecting acknowledgement of
paternity may consist of acts or conduct as well as declarations. Id. Acknowledgment need not be specifically of the child's right to inherit but merely
the fact of paternity. Id. Whether there was an acknowledgment of paternity is a question of both law and fact.
Id. The H~ court held that the trial court erred when it found that the evidence in that case
was insufficient to establish an acknowledgement of paternity where the grandchildren
offered six witnesses who testified categorically that the grandfather had acknowledged
to them on various occasions that he was their mother's father. Id. The court found particularly significant the fact that these witnesses' testimony
was uncontradicted, either by direct evidence or by circumstances, and its finding
that, by law, the court did not have an "arbitrary right to disregard testimony which
is undisputed and uncontradicted, and which is not inherently improbable, incredible,
or unreasonable." Id. at 206-07. Therefore, the H~ court held that the trial court erred in rejecting this uncontradicted testimony
of several witnesses that the putative father acknowledged the child as his. Id. at 207. However, we noted that in both C~ and H~, both parties conceded paternity; the issue was the father's recognition or acknowledgment
that he was the child's father under the pre-1981 legitimacy and inheritance statute.
These cases show that acts and conduct, as well as evidence of declarations (including
oral declarations), can establish an acknowledgement. However, even if the evidence
presented here constituted clear and convincing evidence of acknowledgment under the
pre-1981 statute, there is no guarantee that a Mississippi court would find that acknowledgment
to be clear and convincing evidence of paternity, especially since acknowledgement
and paternity were separate elements in the intestacy determination.
While we found cases that treat evidence of oral acknowledgment as probative of paternity,
we found no Mississippi cases directly on point where an illegitimate child submitted
only evidence of oral statements by the putative father. Instead, in almost every
recent Mississippi case where the putative father was deceased and clear and convincing
evidence was shown, the claimant presented both oral testimony and written documentation
of acknowledgement of paternity by the putative father. For instance, the Mississippi
Court of Appeals in In re Estates of D~ looked to Estate of Robinson v. Gusta, 540 So.2d 30, 34 (Miss. 1989), for examples of the type of evidence that the Mississippi
Supreme Court has indicated could establish paternity by clearing and convincing evidence
where, as here, there was no blood test or direct testimony of the alleged father
via an affidavit or will. In re Estates of D~, 794 So.2d at 265. As noted in In re Estates of D~, the examples included proof of "an intimate, sexual relationship" between the alleged
father and the child's mother during the nine months or so before the child's birth;
the "absence of the remotest suggestion that [the child's mother] had sexual relations
with any other male during that period of time;" and "implied acknowledgments," such
as the decedent's income tax returns or food stamp applications. In re Estates of D~, 794 So.2d at 266-67 (citing Estate of R~, 540 So.2d at 34). Because the child in Estate of R~ had provided oral testimony from several relatives and non-relatives as well as income
tax returns and food stamp applications where the decedent had listed the minor as
his son, the Mississippi Supreme Court in Estate of R~ concluded there was clear and convincing evidence that the decedent was the child's
natural father. 540 So.2d at 34. We too have found other cases in Mississippi where,
because there was oral testimony as well as additional written evidence which all
tended to establish that the putative father was the only possible father, the individual
was able to prove paternity by clear and convincing evidence. See e.g., Smith v. Bell, 876 So.2d 1087 (Miss. Ct. App. 2004)(clear and convincing evidence that the child
was the decedent's son based on the testimony of the illegitimate child, the child's
mother and two of the decedent's sisters showing acts and conduct of the alleged father
towards his alleged son and based on school and military records that listed the decedent
as the father and bore the name "Francis Bell, III," and the decedent's obituary which
also listed the child as a survivor); Jordan v. Baggett, 791 So.2d 308 (Miss. 2001) (finding clear and convincing evidence that four children
were the alleged father's children where the father's will (though defective) listed
them as children and they presented oral testimony that the alleged father visited
the children, introduced them to other siblings and took them places, and the mother
indicated that the alleged father was the only person with whom she had sexual intercourse
prior to the conception of one of the children); Estate of Johnson v. Johnson, 767 So.2d 181 (Miss. 2000), cert. denied Harris v. Johnson, 532 U.S. 959, 121 (2001) (holding that paternity had been shown by clear and convincing
evidence where the alleged child had been told from birth that the decedent was his
father, the child's mother testified she had not been intimate with any other man
prior to conception, several witnesses testified that it was general knowledge in
the community that the decedent was the child's father, the mother's friend testified
that she actually saw the mother and the decedent engage in sexual intercourse prior
to the child's birth, and the child's birth certificate showed the decedent's first
and middle initial and last name); Bullock v. Thomas, 659 So.2d 574, 576 (Miss. 1995) (putative father who wanted to inherit from his
illegitimate child proved he was child's natural father by clear and convincing evidence
where mother engaged in sexual intercourse exclusively with father at time the child
was conceived, the child greatly resembled father, mother openly claimed to relatives
that he was the father, and mother named him as father on an assistance application).
We believe that these cases seem to suggest that where there is conflicting evidence
about paternity and there is no will or blood tests presented, that evidence of oral
acknowledgments by the father must be accompanied by some additional documentary evidence
which sufficiently shows a child-father relationship before a Mississippi court would
conclude that paternity has been proven under the clear and convincing standard.
In contrast to the above-mentioned cases, we note the following cases where the Mississippi
courts determined that the illegitimate child or the illegitimate child's mother had
not established paternity by the requisite proof. For example, a mother in I~ offered only oral testimony that the putative father impregnated her, that the child
was born five months after she met the putative father, and that he visited her periodically,
gave her cash every two weeks, and bought presents for the child. 510 So.2d at 522.
There was no documentation of any kind supporting the daughter's claim that she was
the decedent's daughter. Id. The decedent's mother, however, offered proof that her son had never acknowledged
the child as his, that she had never met the child's mother, and that she had never
heard of her until she appeared in court. Id. Additionally, the decedent's family corroborated his mother's testimony. Id. After hearing the testimony, the lower court ruled that paternity had not been established
because the decedent never acknowledged the child as his, which the lower court believed
was required by law, and because there was not sufficient proof that he supported
the child. The Mississippi Supreme Court in I~ noted that the 1981 revision to the intestacy statute had removed the prior requirement
that the natural father marry the child's mother and acknowledge the child as his.
Id. at 523, 525. Accordingly, the I~ court held that "open acknowledgement by the putative father is not a prerequisite
to a child's right to inherit." Id. at 525. However, the I~ court further indicated, that "no doubt an open acknowledgement by a putative father
that a child is his natural child has great bearing in determining the factual issue,
but there is now no statutory requirement that he do so in order for a child to establish
its right to inherit." Id. The I~ court then ruled that the evidence and circumstances heavily supported a finding
that the decedent was not the child's father not because of the absence of an acknowledgement
by the decedent but because some of the remaining evidence suggested that someone
else was the child's father.
Similarly, in Estate of G~, the Mississippi Supreme Court held that the trial court did not err in finding that
60-year old twins failed to show by clear and convincing evidence that they were the
decedent's children where genetic testing of the decedent was inconclusive and indicated
a probability of paternity as 83.7% for one twin and 71.97% for the other. Estate of G~, 753 So.2d at 1048-49. The court further noted that the non-genetic testing consisted
of conflicting testimony from many witnesses that the court determined amounted to "60 years of
rumors and gossip" as to community knowledge of the twins' paternity but the only
witnesses old enough to have any personal knowledge testified that the mother named
four other men as fathers and the putative father never acknowledged that he had any
children. Id. at 1048-57. Additionally, the court in Estate of G~ upheld the trial court's determination that paternity had not been established by
clear and convincing evidence where the trial court determined that there had been
no acknowledgement of paternity by the putative father "through acts, conduct, or
declarations . . . ." Id. at 1055. Since the mother had claimed that five other men were possibly the father
of her twins and not just the decedent, the Estate of G~ court further stated that the mother's claim that the alleged father was the father
of the twins did not necessarily satisfy the children's burden of proof to show clear
and convincing evidence. Id. at 1056. In re Estates of D~, the illegitimate child submitted only her own testimony and "hearsay" claims that
the putative father and mother, who were both then deceased, acknowledged her as the
putative father's biological daughter before their deaths. D~, 794 So.2d at 265. The In re Estates of D~ court compared the evidence presented to that found to constitute clear and convincing
evidence by the court in Estate of R~, above. The In re Estates of D~ held that the illegitimate child in that case had not proven by clear and convincing
evidence that she was the daughter of the decedent, reasoning that the plaintiff had
not provided any "definitive evidence" that she was the decedent's daughter. Id., at 266-67.
In summation, we believe the cases noted above tend to suggest that where there is
no blood tests or direct testimony of the alleged father by way of an affidavit or
will, a Mississippi court will consider such evidence as: 1) an intimate, sexual relationship
between the alleged father and the child's mother around the time the child was conceived;
2) the absence of the remotest suggestion that the child's mother had sexual relations
with any other male during that period; and 3) documentation that would tend to show
a parent/child relationship between the alleged father and the child. However, the
Mississippi court outlining these three factors clearly noted that these factors were
only examples of the type of evidence that the Mississippi Supreme Court considered sufficient
proof of paternity in cases where there is no will or blood test results. Therefore,
we cannot say definitively that all three elements are required in every case to prove
paternity by clear and convincing evidence. A Mississippi court, in a future case, might find that evidence of oral acknowledgments of paternity by the putative
father is persuasive enough to establish paternity by clear and convincing evidence.
However, based on the current cases, we believe that to meet the clear and convincing
standard of proof, there must be oral acknowledgements by the putative father along
with some other documentation tending to show the putative father is the father. Examples
of written documentation that Mississippi courts have deemed adequate include income
tax returns showing that the father claimed the child as a dependent, a birth certificate
with the father's name on it, military records or school records with the father's
name, cards with the words "Daddy" or "daughter" and the decedent's signature, applications
for welfare assistance which list the child as the father's. Additional evidence in
the form of photographs that shows a resemblance between the putative father and the
claimant along written documentation that the mother herself listed the putative father
as the child's father on some sort of form or application may also help establish
paternity by clear and convincing evidence. See Bullock v. Thomas, 659 So.2d at 576. As noted above, individuals wanting to establish paternity have
attempted to establish paternity through other means, such as rumors, gossip, the
claimant's own statements or hearsay statements, and/or inconclusive DNA testing.
However, Mississippi courts have determined that the evidence in those particular
cases was insufficient to establish paternity by clear and convincing evidence because
there was other equally strong evidence that at least suggested that someone other
than the putative father could be the child's father. One might argue that those cases
are distinguishable from this case since all of the written evidence tending to show
paternity is uncontradicted. However, the applicable standard is not "preponderance
of the evidence" (under which a lack of contradiction would be more significant),
so we believe these cases are all best read to require more than evidence of oral
acknowledgment.
However, we do note that there is some support in Mississippi case law that if the
parties stipulate to Claimant's paternity or the testimony as to paternity is uncontradicted,
then paternity has been established. For example, in at least three Mississippi Supreme
Court cases, the parties stipulated the child's paternity and the court either upheld
that stipulation or ruled that the trial court erred in finding that paternity had
not been established. See Williams v. Farmer, 876 So.2d 300, 305-06 (Miss. 2004) (paternity was uncontested in a case involving
a putative father's entitlement to inherit from his illegitimate child upon showing
that the father openly treated the child as his own and has not refused or neglected
to support the child); Miller v. Watson, 467 So. 2d 672 (Miss. 1985) (illegitimate grandson should have been adjudged heir
of estate of paternal grandmother where his answer included a cross-petition which
alleged that he was the illegitimate son of decedent's son, the parties stipulated
that he was the illegitimate son of decedent's son and the parties agreed that they
were the only two interested parties in the estate); H~, 72 So.2d at 831 (paternity established where the bill of complaint charged specifically
that the child was the natural daughter of the decedent and the answer did not deny
this fact but instead only contested whether the child was born in wedlock). In fact,
the H~ court noted that the "rule is well-established that the testimony of a witness which
is not contradicted, either by direct evidence or by circumstances, must be taken
as true. Neither the chancellor nor a jury has an arbitrary right to disregard testimony
which is undisputed and uncontradicted, and which is not inherently improbable, incredible,
or unreasonable." 72 So.2d at 833 (citing several prior Mississippi cases).
However, because SSA will not actually require a determination by a State court, 20
C.F.R. § 404.355(b)(2)(2005), it may be difficult for SSA to determine all of the
potential heirs to NH's estate and whether they agree or contest paternity in this
case. Ordinarily, there must be an adjudication of paternity in an heirship proceeding
under sections 91-1-27 and 91-1-29 for an illegitimate child to be entitled to inherit
in Mississippi from his or her natural father after the father's death. See MISS. CODE ANN. § 91-1-15(3)(c). Both sections 91-1-27 and 91-1-29 are the procedures
used to determine the heirs of a deceased person. See MISS. CODE ANN. §§ 91-1-27; 91-1-29. The purpose for requiring an heirship proceeding
is to establish a remedial procedure by which heirs or "anyone interested in the decedent's
property" could obtain binding adjudication of heirs. Shepherd v. Townsend, 163 So.2d 746, 746 (Miss. 1964). Moreover, section 91-1-29 ensures that all heirs
at law and next of kin of the decedent who are nonparties to the action are cited
to appear and answer the cite. See § 91-1-29. That section further requires that a summons by publication is addressed
to all heirs at law of the deceased and published to absent and unknown defendants.
See § 91-1-29. Although Section 91-1-29 contemplates notice to potential heirs by publication,
the court in Smith by and through Young v. Estate of King, instructs that the administrator of the estate must give actual notice to known
or reasonably ascertainable illegitimate children who were potential heirs and whose
claims would otherwise be barred by the running of the 90-day time period from notice
of publication to creditors under 91-1-15(3)(c). 579 So.2d 1250, 1254 (Miss. 1991).
"Heirship proceedings are usually heard within the administration of estates, but
this is not an absolute requirement." Perkins v. Thompson, 551 So.2d 204, 207 (Miss. 1989) (citing Estate of S~, 530 So.2d 18, 24-25 (Miss.1988)). Therefore, while oral acknowledgement by the father
without written documentation of that oral acknowledgement may not suffice in Mississippi
to establish a child's paternity by clear and convincing evidence, if all of the potential
heirs to the decedent's estate were made parties in an heirship proceeding or given
notice of such and all agreed or failed to deny that the alleged father was the child's
father, then arguably paternity could then be established by clear and convincing
evidence.
Applying this case law to the case at hand, the evidence presented would not seem
to be clear and convincing evidence of paternity. Although Claimant's mother states
that NH always acknowledged Claimant to family and friends and she submitted signed
statements in support from five relatives, Claimant's mother has not provided any
written documentation showing that there was a parent/child relationship between Claimant
and NH. Claimant's mother alleges that NH provided periodic cash support but she has
no documentation of this support. She stated that NH took out health insurance with
a prior employer for Claimant, but she has no documentation of this. There are no
insurance cards verifying coverage or benefits explanation indicating that NH's insurance
provider ever paid for Claimant's medical care. The birthday cards mentioned in NH's
mother's statement were not provided. The maternal grandmother reported that NH said
that he wanted to take care of Claimant and that he left her money for school supplies,
but provided no written confirmation of this gift. Claimant's mother submitted no
school or other records listing NH as Claimant's father. Though we can reasonably
presume that Claimant's mother had an intimate relationship with NH because she named
NH as the child's father, there is no evidence that NH was the only person with whom
Claimant's mother had sexual intercourse prior to Claimant's birth. On the other hand,
if all of the potential heirs to the decedent's estate were made parties in an heirship
proceeding or given notice of such and all agreed or failed to deny that the alleged
father was the child's father, then arguably paternity could then be established by
clear and convincing evidence.
Retroactivity
Under 20 C.F.R. § 404.621(a)(2), an applicant for child's benefits can receive benefits
for up to six months immediately before the month in which she files her application.
If a child proves she is the legitimate child of an insured individual and entitled
to benefits, that entitlement will extend through the full retroactive period of her
application (that is, from six months before the application or the child's birth,
whichever occurs later), because a child is considered legitimate from birth. See POMS GN 00306.050 and GN 306.085. On the other hand, an illegitimate child might not be entitled to
retroactive benefits because an applicant is not entitled to benefits before she proves
she meets all entitlement factors, and an illegitimate child hasn't proven child status
(in this case, would not be able to inherit a child's share of NH's intestate estate)
until she meets the evidence requirements for proving that status under state law.
So, "[a]n act/event conferring inheritance rights generally has effect only from the
date of such act/event." POMS GN 00306.055A.3. The only exception to this policy is for cases where the state law granting inheritance
rights on an illegitimate child also accords those rights for periods before the act
or event that confers those rights, such as when the child has been legitimated (see POMS GN 00306.050). You asked whether, if the claimant can qualify as the NH's child, the evidence
would entitle the claimant to benefits before the act or event by which she established
her child status. That is, you asked whether the claimant might be entitled to retroactive
benefits.
Section 91-1-15 does not confer legitimacy. We were unable to find any cases which
indicate that an illegitimate child is legitimated by establishing paternity under
section 91-1-1. On the other hand, section 93-17-1 provides for legitimation of Claimant
if the natural father marries the natural mother and acknowledges Claimant. See MISS. CODE ANN. § 93-17-1 (West. Ann. 2005). Since Claimant's mother and NH never
married, this statute would not legitimate Claimant. The court in P~, also noted that another way to legitimate offspring is under the "adoption statute,
§ 93-17-1 MISS.CODE ANN. (Supp.1988) under which procedure the Chancery Court is authorized
to make legitimate any living child of the petitioner not born in wedlock and to decree
the offspring an heir of the petitioner." See, P~, 551 So.2d at 207. Here, there was no paternity action, no adoption action, and no
legitimation proceeding prior to NH's death. Therefore, this statute would not legitimate
Claimant either. Accordingly, if Claimant submits the proper written documentation
establishing she is NH's illegitimate child, Claimant here would probably be entitled
to benefits only as an illegitimate child with inheritance rights and not as a legitimated
child.
Mary A. Sloan
Regional Chief Counsel
Arthurice T. Brundidge
Assistant Regional Counsel