In Georgia, a child born out of wedlock may inherit from or through her father if there is clear and convincing evidence that the child is the child of the father. Clear and convincing evidence is an intermediate standard, greater than "a preponderance of the evidence," but less than "beyond a reasonable doubt."

While the Georgia statute addresses only "parentage" testing, and not testing of grandparents, we believe a Georgia court would consider the results of DNA testing on Claimant and NH's grandparents probative evidence of paternity.

Additionally, since the mother attempted to file on behalf of the child in 2000 but was told by an SSA employee that grandparent DNA would not be admissible, if all other factors of entitlement are met That 2000 date may be used as the filing date.

QUESTION

You asked whether genetic testing showing a high probability that the child claimant is the grandchild of the number holder's parents and a statement from the number holder's mother are sufficient to establish paternity for the purposes of child's insurance benefits. Also, you asked whether the Social Security Administration (SSA) could establish a protective filing date based on the prior attempt by claimant's mother to file an application for child's insurance benefits on behalf of the claimant.

ANSWER

For the reasons stated below, we believe an SSA adjudicator could find the genetic testing and other evidence sufficient to establish the claimant is the child of the number holder under Georgia intestacy law and for the purposes of child's insurance benefits. Also, based on the facts you provided, we believe an SSA adjudicator could establish a protective filing date of March 10, 2000.

BACKGROUND

Reginald A. F~, the number holder (NH), died May 31, 1997, while domiciled in Georgia. On July 15, 2008, Laquinda T. filed an application for child benefits on behalf of her daughter, Laurren A. M~ T~ (Claimant), as the surviving child of NH. Claimant was born on December 17, 1997, in Atlanta, Georgia. No father is listed on the birth certificate. Claimant's mother submitted DNA test results dated March 10, 2000, showing a 99.97% probability that Claimant was the grandchild of Dorothy M. F~ and Henry D. F~, NH's parents. Claimant's mother also stated that she did not have sexual relations with any other relative or brother of NH. In a statement dated July 30, 2008, Dorothy F~, NH's mother, reported NH told her that he was expecting a child with Claimant's mother and that he was planning to marry her.

The record also contains a statement from Carol R. G~, an SSA Technical Expert, who spoke with Claimant's mother on September 12, 2008, regarding an inquiry she allegedly made in March 2000. Claimant's mother alleged she went to an SSA field office in March 2000, after obtaining DNA test results showing a 99.97% probability that NH's parents were Claimant's grandparents. Claimant's mother stated she spoke with a field office employee during her visit to the field office and that the employee did not accept her claim for benefits on behalf of the Claimant. According to Claimant's mother, after the field office employee spoke with "someone in the back of the office," she informed her that "the DNA test results could not be used as proof of paternity." Ms. G~ subsequently spoke with the field office employee, who essentially confirmed the account of Claimant's mother. Specifically, the field office employee reported she was a trainee at the time she spoke with Claimant's mother and sought assistance from another technical expert. The field office employee stated the technical expert told her SSA could not accept the DNA tests as proof of paternity because the tests were conducted with the NH's grandparents. The field office employee did not take the claim based on the information given to her by the technical expert and no additional development was undertaken to prove paternity.

DISCUSSION

Under the Social Security Act (Act), a "child" may qualify for child's insurance benefits on the work record of a deceased parent. See Act § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2008). A claimant may prove she is a "child" of a deceased number holder by showing she could inherit the number holder's property as the number holder's child under the intestacy laws of the state in which the insured number holder was domiciled at the time of his death. See Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1 ) (2008).

To determine whether Claimant could inherit NH's property as his child under section 216(h)(2)(A) of the Act, we must look to the intestacy laws of the state in which NH was domiciled at the time of his death. NH was domiciled in Georgia when he died; so, Georgia intestacy law applies in this case. Under Georgia law, children of the decedent who are born after the decedent's death are considered children in being at the time of decedent's death if they survived 120 hours after birth, were conceived prior to the death, and were born within ten months of the death. GA. CODE ANN § 53-2-1(a)(1) (2008). Georgia law provides intestate inheritance rights to a child born out of wedlock in certain circumstances. Pertinent here is GA. CODE ANN. § 53-2-3(2)(A)(v) (2008), which provides a child born out of wedlock may inherit from or through her father if there is clear and convincing evidence that the child is the child of the father. See Program Operations Manual System (POMS) GN 00306.460(A)(7). In Georgia, "[t]he clear and convincing standard is not defined as a standard eliminating all possible conclusions except one." Sharp v. Varner, 486 S.E.2d 701, 703 (Ga. 1997). Clear and convincing evidence is an intermediate standard, greater than "a preponderance of the evidence," but less than "beyond a reasonable doubt." Id.

The Georgia statute does not address the weight of scientific evidence from grandparents or other relatives in establishing the paternity of a parent. However, GA. CODE ANN. § 53-2-3(2)(B)(ii) provides: "[t]here shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity." The statute further provides that if the presumption of paternity set forth in subparagraph (B)(ii) is established and is not rebutted by clear and convincing evidence, a child born out of wedlock may inherit from and through the father in the same manner as though legitimate. GA. CODE ANN § 53-2-3(2)(C). While this statute addresses only "parentage" testing, and not testing of grandparents, we believe the statue supports the proposition that DNA evidence in general is probative of paternity and entitled to significant weight. Additionally, the statute does not specifically limit genetic testing to particular individuals, e.g., the putative father. The statute simply provides a rebuttable presumption of paternity if scientifically credible parentage-determination genetic testing establishes at least a 97% probability of paternity.

While Georgia courts have not addressed this issue, a review of the court decisions in other states reveals that the genetic tests of the putative father's relatives are, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. See, e.g., In the Matter of the Application of Ruth Santos, 768 N.Y.S.2d 272 (N.Y. 2003) (court stated DNA testing of a child's putative grandparents could be used to satisfy the clear and convincing evidence standard for proving paternity); In the Matter of the Estate of Robert Nasert, 748 N.Y.S.2d 654 (N.Y. 2002) (DNA testing on the putative father's twin, coupled with other evidence, constituted clear and convincing evidence of paternity); In the Matter of the Estate of Sandler, 612 N.Y.S.2d 756 (N.Y. 1994) (court found DNA testing of a child's putative grandparents could provide clear and convincing evidence of paternity); M.A. v. The Estate of A.C., 643 A.2d 1047 (N.J.Super. 1993) (court ordered the decedent's siblings and mother to submit to DNA testing for paternity purposes in an intestacy proceeding because denying the tests could deprive the child of evidence necessary to establish his right to equal treatment under the law); Tipps v. Metro. Life Ins. Co., 768 F. Supp. 577, 580 (S.D. Tex. 1991) (DNA testing of deceased putative father's parents, legitimate son, and putative daughter), In re Estate of Rogers, 583 A.2d 782, 784 (N.J.Super 1990) (court has "inherent power" to order collateral relatives of decedent to submit to blood tests to determine paternity of non-marital child), cited in In re Estate of Murcury, 868 A.2d 680, 685 n.4 (Vt. 2004). Thus, we believe a Georgia court would consider the results of DNA testing on Claimant and NH's grandparents probative evidence of paternity.

In this case, genetic testing from an accredited laboratory shows a 99.97% probability that Claimant is the grandchild of the NH. Thus, there is a strong likelihood Claimant is the child of NH or one of his brothers. Nothing in the evidence suggests that Claimant's mother had intimate relations with any of NH's brothers. She specifically stated she never had relations with any brother of NH. Moreover, NH's mother said NH told her that he was expecting a child with Claimant's mother and that he planned to marry her. We also note that POMS GN 00306.065 states that, when evaluating genetic testing of a number holder's relatives, the Agency does not routinely develop a claim to determine if a male relative of the number holder may have fathered the child unless the facts of the case raise the issue or the Regional Chief Counsel directs such development in a precedent opinion. We see no justification for further development in this case. Thus, we believe an SSA adjudicator could find the DNA evidence establishing a grandparent relationship of 99.97% and the statements of Claimant's mother and NH's mother are sufficient evidence to establish inheritance rights under Georgia law.

You also asked whether a protective filing date could be established in this case. SSA can provide relief to claimants who lost benefits because they failed to file an application timely due to misinformation given by an SSA employee. See Act § 202(j)(5); POMS GN 00204.008. The POMS provide that the issue of misinformation can be raised at any time. In such cases, SSA will establish a "deemed" filing date when the claimant "satisfactorily demonstrates that information provided by SSA deterred him/her from filing a timely application and resulted in a loss of monthly title II or title XVI benefits." Id. Based on the evidence provided, we believe a "deemed" protective filing date of March 10, 2000, can be established if it is determined that the claimant satisfied all other eligibility requirements.

As discussed above, Claimant's mother attempted to apply for child's benefits in March 2000, but was told by an SSA employee that DNA from grandparents was unacceptable evidence and could not be used to prove paternity. Georgia statutes do not specifically limit genetic testing to particular individuals to establish paternity, but rather, require clear and convincing evidence of paternity, as discussed above. See also POMS GN 00306.460(A)(7) (discussing that effective January 1, 1998, if the parent is deceased paternity is established through clear and convincing evidence). Hence, Claimant's mother was misinformed in March 2000, when she was not allowed to submit DNA evidence from testing involving Claimant's grandparents. If you determine that all other eligibility requirements were satisfied, we believe SSA can establish a protective filing date of March 10, 2000.

CONCLUSION

For the foregoing reasons, we believe a Georgia court would find Claimant could inherit from NH under Georgia intestacy law and thus an SSA adjudicator could find Claimant is the child of NH for the purposes of child's insurance benefits. An SSA adjudicator also could find Claimant entitled to a protective filing date of March 10, 2000.

Mary A. S~

Regional Chief Counsel

By:

Mona M. P~

Assistant Regional Counsel

A child born out of wedlock whose relationship to the number holder is established as required under Georgia law will be treated as though she were legitimate from birth.

Her benefit claim is entitled to full retroactivity.

QUESTION

You asked whether a child claimant, who is entitled to benefits on the record of the number holder as of March 2004, would be entitled to retroactive benefits between December 2003 and February 2004.

ANSWER

Because the number holder signed a sworn affidavit acknowledging that he is the father of the child claimant in accordance with Georgia law, we believe that the child claimant would be treated as if he were legitimate from birth. Therefore, the effective date of the parent-child relationship is the child claimant's date of birth, and a Social Security Administration (SSA) adjudicator may conclude that the child claimant would be entitled to retroactive benefits.

BACKGROUND

On March 9, 2004, an application was filed for child's insurance benefits on behalf of Jacque S~ (Claimant) on the record of Tommie S~, the number holder (NH). NH is currently domiciled in Georgia. Claimant was born on May 18, 1988. Claimant's mother signed a statement indicating NH was the father. Although Claimant's mother was dating NH, she married Charles M~ on April 22, 1988. Mr. M~ had doubts that he was Claimant's father, but signed Claimant's birth certificate and assumed responsibility for the child. Mr. M~ did not learn that he was not the father until Claimant was about 2 or 3 years old.

Mr. M~ divorced Claimant's mother in 1990. Claimant and Claimant's mother moved in with NH, and they currently live with NH. NH signed a statement acknowledging Claimant was his child. NH also acknowledged in his disability application that Claimant was his child and he financially supports Claimant. On September 1, 2005, Claimant's birth certificate was re-issued, indicating that NH was the father. On August 31, 2006, NH and Claimant's mother signed an affidavit establishing paternity in accordance with Georgia Law. This affidavit states the relationship between Claimant and NH shall be considered legitimate for all purposes under the law pursuant to GA. CODE ANN. § 19-7-22(g)(2).

SSA has already determined that Claimant is entitled to benefits on the record of NH beginning March 1, 2004.

DISCUSSION

To be eligible for child's benefits on the earnings record of an insured individual, a claimant must be that individual's child. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2006). "Child" is defined as the child, adopted child or stepchild of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354. In determining a claimant's status as the child for benefits purposes, the Commissioner applies the inheritance laws of the state in which the insured had his permanent home when he applied for benefits. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1).

In this case, there is no dispute that Claimant is the child of NH. The only issue is whether Claimant is entitled to retroactive benefits. Under 20 C.F.R. § 404.621(a)(1), an applicant for child's benefits based on the earnings record of a person entitled to disability benefits may receive benefits for up to twelve months immediately before the month in which the application is filed. However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See Act § 202(d)(1); 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a). Child status is one of the entitlement factors. See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1). If the child is the legitimate child of an insured individual and entitled to benefits, the period of entitlement will include the full retroactive period of the application. See Program Operations Manual System (POMS) GN 00306.050 and GN 00306.085. Although legitimacy establishes the child's status as of birth, an out-of-wedlock child generally is not entitled to retroactive benefits because the out-of-wedlock child must prove child status under state law, and benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055A.3. However, if the state law granting inheritance rights to an out-of-wedlock child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. POMS GN 00306.050.

In Georgia, all children born in wedlock or within the usual gestation are considered legitimate, although the presumption of legitimacy can be overcome by "clear evidence to the contrary." GA. CODE ANN. § 19-7-20(a)-(b); Families First v. Gooden, 439 S.E.2d 34, 38 (Ga. Ct. App. 1993). However, a "child born to a mother who is married, but sired by a man other than his mother's husband, is a child 'born out of wedlock.'" Wilkins v. Georgia Dept. of Human Resources, 337 S.E.2d 20, 22 (Ga. 1985). In this case, Claimant would not be considered legitimate given the uncontradicted and overwhelming evidence that NH is the biological father of Claimant. Thus, under Georgia law, we must assume that Claimant would be considered illegitimate. Under Georgia law, a child born out of wedlock may inherit in the same manner as though legitimate from and through the child's father when the father has executed a sworn statement signed by him attesting to the parent-child relationship. GA. CODE ANN. § 53-2-3(2)(A)(iii), (C); POMS GN 00306.460. In this case, NH and Claimant's mother signed an affidavit in August 2006 acknowledging paternity and that the relationship between Claimant and NH shall be considered legitimate for all purposes under Georgia Law. GA. CODE ANN. § 19-7-22(g)(2) (a child may be legitimated when both the mother and father sign a statement including a statement that they voluntary acknowledge paternity). The record also includes Claimant's re-issued birth certificate which lists NH as the father. Therefore, we believe Claimant would be treated as if he were legitimate from birth, and the effective date of the parent-child relationship would be May 18, 1988, Claimant's date of birth.

CONCLUSION

NH's signed affidavit attesting that he is the father of Claimant confers on Claimant inheritance rights equal to those of a legitimate child. Because Georgia law treats illegitimate and legitimate children the same, the illegitimate relationship has a retroactive effect and Claimant would be entitled to retroactive benefits.

Mary A. S~

Regional Chief Counsel

By:

Brian S~

Assistant Regional Counsel

Oral acknowledgement(s) may be the basis for establishing paternity of a child born out of wedlock under the clear and convincing standard required by Georgia intestacy law. The NH's mother and sister as well as another acquaintance all submitted statements indicating that the NH stated that the claimant was his child. Since Georgia law also provides that a child born out of wedlock establishing inheritance rights may inherit in the same manner as though legitimate, a child determined by clear and convincing evidence to be the NH's child will have rights to retroactive benefits equivalent to those of a legitimate child.

QUESTION

On September 28, 2004, number holder Matthew S. H~ (NH) died domiciled in Georgia. Zicara D. N. B~ (Claimant) was born on November 5, 2004. Claimant's mother, Cara B~, filed for child's insurance benefits on Claimant's behalf on May 10, 2005. Claimant was found entitled effective May 2005 because, under 42 U.S.C. § 416(h)(3), NH was shown by evidence satisfactory to the Commissioner to have been Claimant's father and to have been living with or contributing to Claimant's support at the time of his death. You have asked whether, under Georgia intestacy law, oral acknowledgment can be used to establish clear and convincing evidence of paternity, allowing Claimant to meet the requirements of Georgia intestacy law and 42 U.S.C. § 416(h)(2)(A), and, if so, whether Claimant can be paid retroactive benefits.

ANSWER

Oral acknowledgment(s) may provide a basis for establishing clear and convincing evidence of paternity in Georgia. Under Georgia law, Claimant, a child born out of wedlock, may inherit from her father if there is clear and convincing evidence of paternity. If a determination is made that the evidence of record constitutes clear and convincing evidence of Claimant's paternity, such a determination would allow Claimant to inherit from her father in the same manner as though legitimate and would entitle Claimant to retroactive benefits.

BACKGROUND

According to the information provided to us, SSA received a letter dated May 10, 2005, from OB/GYN Women Specialists of Georgia, P.C., stating that Claimant's mother was a patient, that she was under their care for the prenatal care and delivery of a child born November 5, 2004, and that NH accompanied Claimant's mother to their office during the period of her prenatal care. In a letter dated May 24, 2005, and written on Georgia-Pacific Corporation stationery, Chastity L. P~, human resources manager, states that NH said Claimant's mother was pregnant with his child. To Ms. P~'s knowledge, this is the child born to Claimant's mother on November 5, 2004. Amanda H~, NH's sister, submitted a statement dated May 25, 2005, indicating that when Claimant's mother's pregnancy was verified in the spring of 2004, NH told her, his mother, his siblings, and his coworkers that Claimant's mother was pregnant with his child. She stated NH "and the family completely acknowledged her paternity from day one." Eleanor S~, NH's mother, submitted a statement dated May 19, 2005, indicating that in the spring of 2004, NH told her and his coworkers, siblings, and friends that Claimant's mother was pregnant with his child. The NH's mother also stated that at the time of his death, NH was living with Claimant's mother at her mother's address. The NH's death certificate shows he resided at the address of Claimant's maternal grandmother, and NH's mother was the informant. Although Claimant's mother stated on the application for child's insurance benefits that NH listed Claimant as his daughter in the family Bible, NH's mother responded to an SSA inquiry stating that there was no family Bible. Claimant's mother also indicated that NH claimed Claimant on his 2003 tax return. No verification was provided. Claimant's mother also stated on the application that NH gave her cash for Claimant's support.

DISCUSSION

Title 42 U.S.C. § 416(h)(2)(A) provides that in determining whether an applicant is the child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. Applicants who according to such law would have the same status as a child relative to taking intestate personal property shall be deemed such. Id. NH died domiciled in Georgia, and the Georgia law providing for the intestate inheritance rights of a child born out of wedlock is found at O.C.G.A. § 53-2-3 (2005). As relevant to this legal opinion, a child born out of wedlock may inherit from her father if there is "clear and convincing evidence that the child is the child of the father." O.C.G.A. § 53-2-3(2)(A)(v). "Clear and convincing evidence" is "an intermediate standard of proof, requiring a higher minimum level of proof than the preponderance of evidence standard, but less than that required for proof beyond a reasonable doubt." Clark v. Cotton, 440 S.E.2d 165 (Ga. 1994).

We find few Georgia cases discussing whether oral acknowledgment(s) may constitute clear and convincing evidence of paternity. In a related area, Georgia law provides that the legitimacy of a child born in wedlock may be disputed by clear and convincing evidence. O.C.G.A.§ 19-7-20(a). The court in In re Estate of Slaughter, 540 S.E.2d 269 (Ga. App. 2000), considered a mother's oral testimony as to her husband's non-access and found this testimony sufficient to rebut the presumption that the child (B~) born in wedlock was the legitimate child of her mother's husband. The court apparently found that the oral testimony met the burden of proof, clear and convincing evidence, required to rebut the presumption that a child born in wedlock is legitimate. The Slaughter court then considered whether B~ was the biological daughter of the deceased (S~) and whether she had intestate inheritance rights to his estate under O.C.G.A. § 53-2-3(2)(A)(v). With respect to determining whether B~ had intestate inheritance rights, the court considered the testimony of both B~ and her mother that S~ told his mother and his friends that B~ was his daughter. They also testified that S~ attended the birth of B~' son and that he told his family and neighbors the boy was his grandson. Three of S~'s friends also testified that S~ told them and others in their presence that B~ was his daughter and that B~' son was his grandson. There was conflicting testimony. S~ sister testified that S~ never told her B~ was his child and she noted that B~' mother listed her husband (and not S~r) as B~' father on B~' birth certificate and her school registration forms. There was no documentary evidence of S~ acknowledgment of paternity although funeral home programs for the funerals of S~ mother and S~, respectively, listed B~ as the granddaughter and daughter. The court found there was clear and convincing evidence that B~ was S~ daughter and held that B~ was entitled to inherit under O.C.G.A. § 53-2-3(2)(A)(v).

In Curry v. State, 104 S.E.2d 148 (Ga. App. 1958), the court considered the issue of paternity in connection with a defendant's failure to give bond and security for the maintenance and education of an illegitimate child. The court held that the trial court erred in charging the jury to restrict their consideration to the oral testimony in the case without regard to the documentary evidence. The court stated that "Where there is documentary evidence as well as oral testimony and the statement of the defendant, the jury must take all these elements into consideration in arriving at its verdict." Id. At 150. The court's holding indicates all evidence should be considered and does not seem to imply that any particular type of evidence, oral or documentary, is required to meet the 'clear and convincing' standard of proof.

In a somewhat analogous case involving Georgia Workmen's Compensation Law, Patterson v. Liberty Mutual Insurance Company, 137 S.E.2d 549, 550 (Ga. App. 1964), the court stated that "what constitutes acknowledgment on the part of the putative father necessarily depends on the circumstances of each case as there is no definitive rule to be applied." The court found that "the deceased employee believed that the woman with whom he had been living for several months was pregnant and that the decedent by his conduct acknowledged his parentage of the child," and the court authorized an award in favor of the posthumous child.

It is our opinion that, under Georgia law, oral acknowledgment(s) may constitute clear and evidence of paternity. The evidence presented here would seem to argue in favor of finding clear and convincing evidence supports paternity, since evidence is plentiful and largely uncontradicted. However, we could find limited support for the opposite conclusion since there is no documentary proof of paternity and some testimony was inconsistent. If the finders of fact determine that the oral evidence presented in this claim is sufficient to constitute clear and convincing evidence of paternity, then Claimant acquires the status of a child and would be entitled to inherit from her father under O.C.G.A. § 53-2-3(2)(A)(v). Section 53-2-3(C) further provides that if a child born out of wedlock establishes inheritance rights under § 53-2-3(A), the child "may inherit in the same manner as though legitimate." Thus, while Claimant would not be legitimate, Georgia would accord her inheritance rights equivalent to those of a legitimate child. Therefore, if Claimant is determined by clear and convincing evidence to be NH's child, her rights to retroactive benefits would be equivalent to those of a legitimate child. POMS GN 00306.460(A)(7

Mary A. S~

Regional Chief Counsel

By:

Pamela W. W~

Assistant Regional Counsel

In accordance with Gray v. Richardson, SSA is not bound by a Georgia court's Order Establishing Paternity and Legitimization stating that the child was born of a common-law marriage established under the States of Oklahoma and Georgia, and was therefore the biological and legitimate child of the NH. The issue was not genuinely contested before the State court by parties with opposing interests, and the State court's order is not consistent with the law enunciated by the highest court of the State. There is no evidence of a common-law marriage in Oklahoma or Georgia.

You have requested an opinion regarding whether a 1999 Georgia State Court Order finding that Margo R. V~ (Margo) is the biological and legitimate child of Ronald W. V~ (Mr. V~) establishes paternity for the purpose of awarding Social Security surviving child's benefits. / In our opinion, the Social Security Administration (SSA) should not accept the Order as establishing the paternity of Margo because the proceedings were not genuinely contested and the Order is not consistent with the law enunciated by the highest court of the State.

Mr. V~'s death certificate indicates that he was 20 years old when he died in Oklahoma on March 24, 1982. His death was deemed a suicide by the medical examiner. His father, Max V~ (the senior Mr. V~), informed the medical examiner that his son was never married and was a resident of Oklahoma. Margo's birth certificate was completed by her mother, Tracey L. P~ (Ms. P~), a resident of Oklahoma, who signed her name as "Tracey V~." The birth certificate indicates that Margo was born in Oklahoma on November 30, 1982, and that her father was Ronald W. V~.

Ronald V~'s father, mother (Mrs. Martha V~), and brother, Raymond V~, were recently contacted by the undersigned. The senior Mr. V~ said that Ronald V~ never resided in Georgia, and in fact had never visited Georgia with Ms. P~. He noted that his son lived at home with him in Lawton, Oklahoma until his son turned 18 and got a job with Haliburton in Davis, Oklahoma. Ronald V~ then lived in Davis until he died. Raymond V~ said that his brother and Ms. P~ lived together for a short time, and that his brother never indicated to him that Ms. P~ and he considered themselves married. Raymond V~ did not believe that Margo was his brother's child because Ms. P~ had sexual relations with other men at that time. Ronald V~'s mother and father both reported that they were not notified that Ms. P~ and Margo had filed a Petition To Establish Paternity And Legitimization.

In May 1983, Ms. P~ filed applications for surviving child's benefits on behalf of Margo, and surviving widow's benefits on behalf of herself, alleging that she and Mr. V~ had a common law marriage. Both applications were denied in December 1983, on the basis that Ms. P~ could not establish that a marriage existed under the deemed marriage provisions or under the laws of Oklahoma, and that Margo was not a deemed child and could not inherit under Oklahoma law.

Another application for surviving child's benefits was filed in May 1991, when Ms. P~ and Margo were residents of Florida. The SSA obtained information from the prior file, which contained statements from Ms. P~ that she had not used Mr. V~'s surname because they were not married. There were also statements from a friend who noted that Ms. P~ did not want to marry Mr. V~. The friend also noted that Mr. V~ and Ms. P~ had an argument and Mr. V~ had kicked Ms. P~ out of the house a few days before he committed suicide. Ms. P~ also informed the SSA that Mr. V~ did not acknowledge that Margo was his child because he did not know Ms. P~ was pregnant at the time of his death. In the 1991 application, Ms. P~ acknowledged that Margo does not meet the requirements to be entitled on Mr. V~'s record, but was advised by an attorney to file again nevertheless. This application was denied by the SSA in June 1991, as there was no new and/or material evidence to show that the previous denial was incorrect.

In September 1999, Ms. P~ filed a Petition to Establish Paternity and Legitimization (Petition) in the Superior Court of Charlton County, Georgia. Ms. P~ states that she is a resident of Charlton County, Georgia. The Petition incorrectly states that Mr. V~ was killed on April 24, 1982. The Petition further states that Ms. P~ and Mr. V~ "were common law married under the laws of the States of Oklahoma and Georgia, which they has (sic) resided in both." On this basis alone, it was requested that Margo be found the child of Mr. V~ and Ms. P~. The undersigned contacted Ms. P~'s attorney, Kenneth F~. According to Mr. F~, only Ms. P~ and Margo testified at the hearing, and the Guardian Ad Litem for Margo gave a report. On November 15, 1999, Stephen L. J~, Judge, Superior Court of Charlton County, Georgia, signed an Order Establishing Paternity and Legitimization, prepared by Mr. F~. This Order states that Margo was born as issue of a common law marriage established under the States of Oklahoma and Georgia, and was therefore the biological and legitimate child of Mr. V~.

On December 13, 1999, Ms. P~ filed the current application for surviving child's benefits on behalf of Margo. In that application, Ms. P~ incorrectly states that "no previous application has been filed with the Social Security Administration for whom this application is being filed." Ms. P~ also noted that only her parents show an active interest in Margo. Mr. V~'s parents are not listed.

On June 27, 2000, Ms. P~ wrote a letter to a United States Representative from Jacksonville, Florida. Ms. P~ indicated that she was now living in Yulee, Florida. She states in this letter, "When I was twenty years old, I was engaged to be married and pregnant. Six months pregnant my fiancé was killed in an automobile accident...."

The Social Security Act provides that in determining whether an applicant is the child of a fully insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A). Thus, eligibility for Social Security benefits depends on whether the individual would inherit under the law of intestate succession in the state where decedent was domiciled. In this case, Oklahoma law controls because Mr. V~ was domiciled in Oklahoma at the time of his death. Id.

An issue of a valid marriage is entitled to inherit under the law of intestate succession in Oklahoma. 84 Okl. St. Ann § 213. The Oklahoma statutes further provide that a child conceived during a valid marriage, but not born at the time of the father's death, is deemed an existing person for inheritance purposes if subsequently born alive within ten (10) months after the death of the father. 15 Okla. St. Ann. § 15; 10 Okla. St. Ann. § 2. Likewise, Georgia statutes provide that all children, including issue of a common law marriage, are legitimate if born in wedlock or within the usual period of gestation thereafter. Ga. St. Ann. 19-7-20; 1958-1959 Op. Att'y Gen. p. 89.

To establish entitlement to surviving child's benefits as a dependent child, Margo must meet one of four provisions found at § 216(h) of the Social Security Act, 42 U.S.C. § 416(h). In the present case, Ms. P~ asserts that because Margo is the child of a valid common law marriage established under the laws of Oklahoma and Georgia, Margo is entitled to Social Security surviving child's benefits based on the first statutory alternative, found at 42 U.S.C. §§402(d)(3) and 416(h)(2)(B). These sections provide that the child of a valid or putative marriage is deemed to be dependent for support on the deceased wage earner and is thus eligible for surviving child's insurance benefits without the necessity of proving actual dependence. 42 U.S.C. §§402(d)(3) and 416(h)(2)(B). The alleged existence of a common law marriage was the only proof of paternity submitted to the Georgia State Court. Thus, Margo's claim for surviving child's benefits is dependent on the validity of the Georgia State Court's finding that a common law marriage was established in either Georgia or Oklahoma.

In Social Security Ruling 83-37c, which adopts the decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), the Social Security Administration explains when it is bound by state court decisions on family law issues. Although the Commissioner is not bound by a state court's decision in a proceeding to which he was not a party, the Social Security Administration must accept state court decisions where:

1. a. 

   an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction;

2. b. 

   this issue was genuinely contested before the state court by parties with opposing interests;

3. c. 

   the issue falls within the general category of domestic relations law; and

4. d. 

   the resolution by the state court is consistent with the law enunciated by the highest court of the State.

See Social Security Ruling 83-37c; Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973).

Whether or not the Georgia State Court was a court of competent jurisdiction is not entirely clear. The superior courts of Georgia have "subject matter" jurisdiction in all proceedings for the determination of paternity of children who are residents of the state. Ga. St. Ann. 19-7-40. However, it is unclear whether the superior court had "jurisdiction over the person" ("personal jurisdiction") of all the necessary parties in the present case. The Code of Georgia provides that a court may order service upon a person outside the state upon a finding that there is a constitutionally permissible basis for jurisdiction over the person, including those enumerated in Article 3, Chapter 11 of Title 19. Ga. St. Ann. 19-7-41. The relevant statute in Article 3, Chapter 11, is the State of Georgia's version of the Uniform Interstate Family Support Act, which lists eight methods a state court may exercise "personal jurisdiction" over a nonresident individual in a proceeding to establish or determine parentage. Ga-St-Ann. 19-11-110. However, this statute assumes that the putative father is alive and is silent as to the process for deceased putative fathers. It is important to note that the Court of Appeals of Georgia has held that the administrator of a deceased putative father's estate was a necessary party regardless of whether the proceeding was one to establish legitimization of a child or one to have a new birth certificate issued, or both. Ward v. Ward, 115 Ga. App. 778, 779, 782, 156 S.E.2d 210, 211, 213 (1967). Under Oklahoma law, when a person dies intestate with no known wife or children, the father or mother of the decedent is the administrator of the estate. 58 Okl. St. Ann. § 122. Both of Mr. V~'s parents reported to the undersigned that they were not informed that Ms. P~ and Margo had filed the Petition to Establish Paternity and Legitimization.

Thus, although it is unclear whether the Georgia State Court had obtained "personal jurisdiction" over all the necessary parties to issue the Order in the present case, this need not be conclusively resolved in light of the fact that the SSA need not accept the state court Order where the issue was not genuinely contested by parties with opposing interests, nor where resolution by the state court is consistent with the law enunciated by the highest court of the State. See Social Security Ruling 83-37c; Gray v. Richardson, supra.

Clearly, the issue of Mr. V~'s paternity was not genuinely contested by parties with opposing interests. As noted above, only Ms. P~, Margo and the Guardian Ad Litem for Margo presented evidence in the state court proceeding which found that a common law marriage existed in Georgia and Oklahoma, and that Margo was an issue of that marriage.

Furthermore, as shown below, the findings of the Georgia State Court that a valid common law marriage existed in Georgia and Oklahoma are contrary to the evidence as a whole and not binding on the SSA because they are not consistent with the law enunciated by the highest court of the State.

The State of Georgia no longer allows individuals to enter into common law marriages; however, otherwise valid common law marriages entered into prior to January 1, 1997 are continued to be recognized. Ga. St. Ann. 19-3-1.1. To have established a valid common law marriage in Georgia prior to January 1, 1997, there must be (1) parties able to contract, (2) an actual contract of marriage where the husband and wife agree to live together as man and wife and they hold themselves out to the world as married, and (3) consummation by cohabitation in Georgia. Ga. St. Ann. 19-3-1 (1999); Georgia Osteopathic Hosp. V. O'Neal, 198 Ga. App. 770, 777-78, 403 S.E.2d 235, 243-44 (1991); Kersey v. Gardner, 264 F. Supp. 887, 889 (M.D. Ga. 1967). There is no credible evidence demonstrating that Mr. V~ and Ms. P~ ever held themselves out as married, and cohabitated in the State of Georgia. Thus, Mr. V~ and Ms. P~ did not establish a common law marriage in Georgia.

When a common law marriage is alleged to have been established in another state, the State of Georgia will apply the law of that other state in determining whether a valid common law marriage exists. Ga. St. Ann. 24-7-24(a)(2). In the present case, it was alleged that a common law marriage was established in Oklahoma. Under Oklahoma Law, a party asserting a common law marriage must prove the following elements with clear and convincing evidence: (1) an actual and mutual agreement between the spouses to be husband and wife, (2) a permanent relationship, (3) an exclusive relationship proved by cohabitation as man and wife, and (4) the parties to the marriage must hold themselves out publicly as husband and wife. Estate of Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla.1983) (citing Matter of Phifer's Estate, 629 P.2d 808 (Okla. Ct. App. 1981)).

There is no credible evidence that Mr. V~ and Ms. P~ had an actual and mutual agreement to be husband and wife, or that they held themselves out publicly as husband and wife. The senior Mr. V~ reported on his son's death certificate that his son was never married and was a resident of Oklahoma. The senior Mr. V~ further noted that his son always lived in Oklahoma and did not live in Georgia with Ms. P~.

Ms. P~'s prior admissions further show that when she filed Margo's second application for surviving child's benefits, she knew that she did not meet the requirements to be entitled on Mr. V~'s record. Ms. P~ also admitted that she did not use Mr. V~'s surname because she did not consider herself married to him, and there was evidence from a friend showing that Ms. P~ did not want to marry Mr. V~. Even as late as the June 27, 2000, letter to her United States Representative, Ms. P~ states that she was only engaged to be married. No common law marriage exists when a couple refers to themselves as engaged to be married; an agreement to marry in the future is not sufficient. In re Estate of Wilson, 236 Ga. App. 496, 496, 512 S.E.2d 383, 385 (1999); In re Gray's Estate, 119 Okla. 219, ____, 250 P. 422, 425 (1926). "A mere promise of future marriage, followed by illicit relations, is not a common law marriage." Wheaton v. State, 185 P.2d 931, 937, 85 Okla. Crim. 132, 143-44 (Okl. Cr. App. 1947). Finally, there is no evidence Mr. V~ ever indicated to his family that he considered himself married to Ms. P~.

Mr. V~ and Ms. P~ also did not have a permanent relationship, and it is questionable whether they had an exclusive relationship. The evidence shows that Mr. V~'s brother, Raymond V~, reported that Mr. V~ and Ms. P~ only lived together for a short period of time in Oklahoma and that Ms. P~ may have had sexual relationships with other men. Evidence from the prior applications also show that Mr. V~ had kicked Ms. P~ out of his house a few days before he died.

The overwhelming evidence shows a common law marriage could not have been entered in Georgia because Mr. V~ never resided there, nor in Oklahoma because Ms. P~ believed, at the most, to be engaged to Mr. V~ at the time of his death, and they did not hold themselves out as husband and wife to family and friends. Therefore, it is unlikely the highest court of Georgia would have found a valid common law marriage existed in either Georgia or Oklahoma based on these facts. In re Estate of Wilson, 236 Ga. App. 496, 496, 512 S.E.2d 383, 385 (1999) (No common law marriage exists when a couple does not hold themselves out as husband and wife and refer to themselves as engaged to be married). The SSA therefore, need not accept the Georgia State Court Order finding that Margo was an issue of a valid common law marriage between Ms. P~ and Mr. V~. The Georgia State Court Order would only be considered along with the other evidence before the Administration. Kersey v. Gardner, 264 F. Supp. 887, 890 (M.D. Ga. 1967).

Based on the foregoing discussion, it is our conclusion that the SSA is not bound by the Order because it was not genuinely contested before the state court by parties with opposing interests, and the state court's Order is not consistent with the law enunciated by the highest court of the State.

Tina M. W~

Regional Chief Counsel

By:

Christopher C~

Assistant Regional Counsel

Georgia law permits testing of the putative father's surviving relatives for purposes of establishing a rebuttable presumption of paternity (97% probability) for inheritance purposes.

You have requested our opinion as to whether Zavyira L. M~ (Zavyira) is entitled to child's benefits based on the earnings record of deceased number holder (NH) Robert C. B~, SS# ~. It is our opinion that, under Georgia law, the NH may be presumed to be Zavyira's father based on the results of genetic tests performed on the NH's parents.

The facts presented are that on March 7, 2000, Nicole M. M~ applied for benefits on behalf of her child, Zavyira. The NH died domiciled in Georgia on August 23, 1998. Zavyira was born on March 16, 1998. Ms. M~ presented genetic test results dated November 10, 1999, as evidence of the relationship between Zavyira and the NH. The DNA Grandparentage Testing interpretation by Genetica DNA Laboratories, Inc., states that the alleged paternal grandparents, Robert C. B~, Sr., and Linda W~, cannot be excluded as the biological paternal grandparents of Zavyira. Based on testing results obtained from analyses of 5 different DNA probes, the probability of grandparentage is 99.99%.

Ga. Code Ann. § 53-2-3(2)(B)(ii) provides for the inheritance of a child born out of wedlock:

There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity. Parentage-determination genetic testing shall include, but not be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes.

The statute further provides that if the presumption of paternity set forth in subparagraph (B) is established and is not rebutted by clear and convincing evidence, a child born out of wedlock may inherit in the same manner as though legitimate.

Section 53-2-3(2)(B)(ii) does not limit genetic testing to the putative father. In fact, the statute appears to contemplate genetic testing of the putative father's surviving relatives because a different but virtually identical statute, § 19-7-46(b), is applied in paternity proceedings conducted during the putative father's lifetime. Section 19-7-46(b) also provides for a rebuttable presumption based on genetic testing establishing at least a 97 percent probability of paternity.

While Georgia provides specific accreditation requirements for genetic testing conducted in connection with paternity proceedings (§§ 19-7-43, 19-7-45, and 19-7-46), we do not find statutory or case law support for extending these requirements to genetic tests conducted in connection with establishing inheritance rights pursuant to § 53-2-3. The Georgia Supreme Court wrote in Sardy v. Hodge, 448 S.E. 2d 355, 356 (1994), cert. denied 513 U.S. 1191 (1995), that a condition for establishing inheritance rights (under the former § 53-4-4) "is satisfied by filing with the appropriate court results of genetic testing establishing at least a 97 percent probability of paternity (a rebuttable presumption of paternity), and the same is not overcome by clear and convincing evidence."

Thus, it is our opinion that, based on grandparentage genetic test results, Zavyira has established a rebuttable presumption of the NH's paternity. In the absence of clear and convincing evidence rebutting the presumption of paternity, Zavyira may inherit from the NH through intestate succession, and would be entitled to child's benefits pursuant to 42 U.S.C. § 416(h)(2)(A).

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS — GEORGIA

DISTINCTIONS BETWEEN STATUTES OF LEGITIMATION AND INHERITANCE — GEORGIA

Under Georgia law, an illegitimate child whose father died prior to April 1, 1980 is not entitled to an intestate child's share of his deceased father's estate if there could have been an adjudication of paternity during the decedent's lifetime notwithstanding any unconstitutionality in Georgia's pre-1980 statutory intestacy scheme relating to the rights of illegitimate children to inherit from their fathers. Poulos v. McMahan, 297 S.E.2d 451 (1982).

(Robert H~ (D~) - SSN~ - RAIV [W~] - to Asso.Comm., RSI, Atl., 09/27/85)

In your memorandum you asked whether the illegitimate children of Robert H~ , namely Daphney and Angela J~ , would be entitled to an intestate share of Robert H~ personal property under the Georgia law in effect when the insured died on February 10, 1980.

Section 216(h) (2) (A) of the Social Security Act, as amended (42 U.S.C. §416(h) (2) (A)), provides that an applicant is the child of a deceased insured individual if the courts of the state in which the insured was domiciled at the time of his death would .find such applicant entitled to an intestate child's share of the insured's estate. Clearly, it is the state inheritance law in effect at the time of the insured's death which is to be applied. 20 C.F.R. §404.354(b).

The insured, Robert H~, died domiciled in Georgia on February 10, 1980. His two children, Daphney and Angela, were born in 1969 and 1970, respectively. Consequently, Georgia's intestacy law in effect when the insured died on February 10, 1980, is applicable in determining the rights of these two children to an intestate share of the insured's personal estate.

On the date of the insured's death and prior to April 1, 1980, Georgia granted illegitimate children no inheritance rights against their father's estates. See former Ga.Code Ann. §113-904 (Ga.L. 1816, Cobb, 293; as amended., Ga.L. 1855-6, p. 228); Cooper v. Melvin, 223, Ga. 239, 154 S.E.2d 373 (1967). However, an illegitimate child was rendered fully legitimate by the marriage of the mother and the father together with the recognition by the father that the child was his. Ga.Code Ann. §§74-101, 74-201; Morris V. Dilbeck, 71 Ga. App. 470(2), 31 S.E.2d 93 (1944). Furthermore, the father could also render his child legitimate, at least for inheritance purposes, by filing a petition in the Superior Court of the father's residence. Ga.Code Ann. §74-103; Hicks v. Smith, 94 Ga. 809, 22 S.E. 153 (1894).

Effective April 1, 1980, however, Ga.Code Ann. §113-904 was amended likely in response to Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) and Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). As a result of this amendment, an illegitimate child is now permitted to inherit from his natural father provided that during the father's lifetime and after the conception of his illegitimate child one of the following occurs: (1) a court of competent jurisdiction has entered an order declaring the child to be legitimate pursuant to Official Code of Ga.Ann. §19-7-22 (Michie 1982), Ga.Code Ann. §74-103 (Harrison Supp. 1984) or such other authority as may be provided by law, or (2) a court of competent jurisdiction has otherwise entered a court order establishing the father of the illegitimate child. Official Code of Ga.Ann. §53-4-4(c) (Michie 1982), Ga.Code Ann. §113-904(c) (Harrison Supp. 1984).

The Georgia Supreme Court in Poulos v. McMahan, 297 S.E.2d 451 (November 30, 1982), being fully aware of Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982) which had declared Georgia's pre-1980 inheritance statute to be unconstitutional, had occasion to consider the inheritance rights of illegitimates whose fathers died prior to April 1, 1980, the effective date of the amended Ga.Code Ann. §113-904. In Poulos, an alleged illegitimate child of a decedent who died on June 16, 1979 filed a petition seeking to caveat the probate of the decedent's will. The child, born on November 24, 1973, alleged the decedent was his natural father and complained that the will did not contain any distribution in favor of the child. He also contended that the will was the product of undue influence by the decedent's wife. The Probate Court ruled that the plaintiff was the child of the deceased but denied the petition for lack of evidence of undue influence. The Superior Court granted a motion for summary judgment by the deceased's wife on the grounds the plaintiff, as the illegitimate child, could not inherit from the decedent under the intestacy laws in effect at the time of the decedent's death. On appeal, the Supreme Court of Georgia affirmed the Superior Court decision that the illegitimate child had no inheritance rights under Georgia's pre-1980 statutory intestacy scheme. The Poulos court agreed that Georgia's pre-1980 intestacy scheme was unconstitutional because it excluded significant categories of illegitimates whose inheritance rights could be recognized without jeopardizing the orderly administration of estates. The Poulos court concluded, however, that the subject illegitimate did not fit within such a category because there could have been an adjudication of paternity during the lifetime of the natural father. Specifically, the Poulos court reasoned that an adjudication of paternity could have been obtained during the natural father's lifetime through a civil action for child support or by charging the natural father with the offense of abandonment.

Accordingly, the Poulos court held that where Georgia's pre-1980 statutory intestacy scheme would be applicable in determining the inheritance rights of an illegitimate, such illegitimate will be denied a child's share of his natural father's estate if there could have been an adjudication of paternity before the natural father died notwithstanding any unconstitutionality in Georgia's pre-1980 statutory intestacy scheme as it related to rights of illegitimate children to inherit from their father. The requirement of an "adjudication of paternity during the father's lifetime" would be satisfied under Poulos if such adjudication were made under Georgia law incident to abandonment or bastardy proceedings or any type of child support action to include the Uniform Reciprocal Enforcement of Support Act.

In Poulos, the child was approximately five and one-half years old when his father died. There were no circumstances in Poulos which would have prevented an adjudication of paternity on behalf of the child within those five and one-half years. Under such circumstances, the Poulos court applied the pre-April 1, 1980 intestacy law and barred inheritance.

In the present case, the deceased insured's two children, Daphney and Angela, were approximately eleven and ten years old, respectively, when their father died on February 10, 1980. There are no facts or circumstances in the file which would have prevented the adjudication of paternity on behalf of these children during the ten-year period prior to their father's death. Under these circumstances, Poulos requires the application of the pre-April 1, 1980 inheritance law which denies the illegitimates, Daphney and Angela, from asserting inheritance rights against the estate of the deceased insured.

With regard to the Georgia entry in the Program Operations Manual System (POMS) GN 00306.135 (Digest of State Laws on Legitimation and Inheritance Rights), it is the recommendation of this office that the Georgia entry 4(I) reflect the recodification of the Georgia statutes and include an additional statutory phrase. It is recommended that 4(I) be amended as follows: (the new language is underlined)

4(I) effective 4/1/80, during the lifetime of the father and after conception of the child, a court of competent jurisdiction has entered an order declaring the child to be legitimate under authority of Official Code of Ga.Ann. §19-7-22, Ga.Code Ann. §74-103, or such other authority as may be provided by law, or a court of competent jurisdiction has otherwise entered a court order establishing the father of the child.

LEGITIMACY AND LEGITIMATION — LEGITIMATING ACTS BY PARENTS — GEORGIA

Under Georgia law, an illegitimate child whose father died prior to April 1, 1980 is entitled to a child's share of the deceased father's estate provided there was an adjudication of paternity during the father's lifetime. Poulos v. McMahan, 297 S.E.2d 451 (1982).

(Robert L. R~ (D~), - RAIV [W~], to Asst. Reg. Comm., Progs., Atl., 05/15/84)

In your memorandum you have asked whether an order by a Georgia Superior Court judge directing the name of the illegitimate child-applicant's father appearing on the child-applicant's birth certificate be changed to that of the wage earner renders such applicant a child of the wage earner for purposes of Section 216(h)(2)(A) of the Social Security Act.

The file reflects that the child-applicant was born on December 19, 1975. The designated father appearing on that child's birth certificate was Johnny L. W~. At the time of the child's birth, her mother was not married but was allegedly living with the wage earner, Robert L. R~. The child's mother had been married to Johnny L. W~ but he died sometime in 1974. On June 20, 1976, the wage earner died. In October 1982, the child's mother, on behalf of the child, filed in the Superior Court of Emanuel County, Georgia, a verified petition for Correction of the Birth Certificate of the subject child, Cassandra D. W~ . In an order dated November 12, 1982, the Superior Court judge issued an order directing that the birth certification records of said child be changed to show the full name of the subject child as Cassandra D. R~ rather than Cassandra D. W~. Further, the court ordered that such records show that said child's natural father was Robert L. R~ rather than Johnny L. W~.

Pursuant to Official Code of Ga.Ann. §31-10-23(C)(1), an order from a Georgia Superior Court is necessary to change the paternity designation on a birth certificate. The court's order must specifically state the name to be removed and the name to be added. The

subject court order issued by the Emanuel County Superior Court dated November 12, 1982 names the wage earner, Robert L. R~, as the natural father of the child-applicant and appears to conform with the statutory requirements set out in Official Code of Ga.Ann. §31-10-23(c)(1). Assuming arguendo that the Superior Court properly determined paternity in this matter in both law and fact for purposes of changing the child's birth certificate, a paternity adjudication for such purpose does not cloak such child with inheritance rights under Georgia law or for purposes of Section 216(h)(2)(A) of the Social Security Act.

Effective April 1, 1980, Ga.Code Ann. §113-904 was amended likely in response to Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) "and Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). Pursuant to this amendment an illegitimate child is now permitted to inherit from his natural father provided that during the father's lifetime and after the conception of his illegitimate child one of the following occurs: (1) a court of competent jurisdiction has entered an order declaring the child to be legitimate pursuant to Ga.Code Ann. §74-103 or such other authority as may be provided by law, or (2) a court of competent jurisdiction has otherwise entered a court order establishing the father of the illegitimate child. Ga. Code Ann. §113-904.

Prior to 1980, however, Georgia granted illegitimate children no inheritance rights against their father's estates. See former Ga. Code Ann. §113-904 (Ga.L. 1816, Cobb, 293; as amended, Ga.L. 1855-6, p. 228); Cooper v. Melvin, 223, Ga. 239, 154 S.E.2d 373 (1967). However, an illegitimate child was rendered fully legitimate by the marriage of the mother and the father together with the recognition by the father that the child was his. Ga. Code Ann. §§74-101, 74-201; Morris V. Dilbeck, 71 Ga. App. 470(2), 31 S.E.2d 93 (1944). Furthermore, the father could also render his child legitimate, at least for inheritance purposes, by filing a petition in the Superior Court of the father's residence. Ga. Code Ann. §74-103; Hicks v. Smith, 94 Ga. 809, 22 S.E. 153 (1894).

The Georgia Supreme Court in Poulos v. McMahan, 297 S.E.2d 451 (November 30, 1982), being fully aware of Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982) which had declared Georgia's pre-1980 inheritance statute to be unconstitutional, had occasion to consider the inheritance rights of illegitimates prior to April 1, 1980. In Poulos, an alleged illegitimate child of a decedent who died on June 16, 1979 filed a petition seeking to caveat the probate of the decedent's will. The child, born on November 24, 1973, alleged the decedent was his natural father and complained that the will did not contain any distribution in favor of the child. He also contended that the will was the product of undue influence by the decedent's wife. The Probate Court ruled that the plaintiff was the child of the deceased but denied the petition for lack of evidence of undue influence. The Superior Court granted a motion for summary judgment by the deceased's wife on the grounds the plaintiff, as the illegitimate child, could not inherit from the decedent under the intestacy laws in effect at the time of the decedent's death. On appeal, the Supreme Court of Georgia affirmed the Superior Court decision that the illegitimate child had no inheritance rights under Georgia's pre-1980 statutory intestacy scheme. The Poulos court agreed that Georgia's pre-1980 intestacy scheme was unconstitutional because it excluded significant categories of illegitimates whose inheritance rights could be recognized without jeopardizing the orderly administration of estates. The Poulos court concluded that the illegitimate did not fit within such a category because there could have been but was not an adjudication of paternity during the lifetime of the natural father. Specifically, the court reasoned that an adjudication of paternity could have been obtained during the natural father's lifetime through a civil action for child support or by charging the natural father with the offense of abandonment.

Accordingly, the court held that where Georgia's pre-1980 statutory intestacy scheme would be applicable to the inheritance rights of an illegitimate, such illegitimate will be denied a child's share of his natural father's estate if there was no adjudication of paternity before the natural father died notwithstanding any unconstitutionality in Georgia's pre-1980 statutory intestacy scheme as it related to rights of illegitimate children to inherit from their father. The requirement of an "adjudication of paternity during the father's lifetime" would be satisfied under if such adjudication were made under Georgia law incident to abandonment or bastardy proceedings or any type of child support action to include the Uniform Reciprocal Enforcement of Support Act.

In the present matter, the child was born on December 19, 1975 approximately six months before the wage earner's death on June 20, 1976. Accordingly, the child's inheritance rights are governed by the pre-April 1, 1980 Georgia inheritance law. Since there is no evidence that the wage earner complied with the statutory law then in effect conferring inheritance rights upon the child and in the absence of any adjudication of paternity during the wage earner's lifetime as required by , the illegitimate child would not be entitled to a child's share of the wage earner's estate under the pre-April 1, 1980 intestacy law of Georgia. Therefore, it is the opinion of this office that the subject child would not qualify as a child of the wage earner for purposes of Section 216(h)(2)(A) of the Social Security Act.

However, it is significant to note that the wage earner died about six months after the child was born. There are some recent decisions in which the courts have found a denial of equal protection where a State statutory inheritance scheme created insurmountable obstacles to an illegitimate child. In Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982), the United States Supreme Court examined a Texas inheritance statute requiring a paternity proceeding be maintained within one year of the child's birth in order for such child to inherit from the putative father. The court determined that the Texas statute imposing a one year time period for a paternity action was too short and unconstitutional constituting a denial of equal protection. In Handley v. Schweiker, 697 F.2d 999 (11th Cir. 1982), the court relied heavily upon the Mills rationale and found an Alabama intestacy statute requiring a paternity proceeding to be maintained during the father's lifetime to be a denial of equal protection as applied to the subject illegitimate child. In Handley, the father died within four months after the illegitimate child's birth and had been in a coma four months prior to the child's birth and remained in such a coma until he died. Although specifically not imposing any minimal time after birth of an illegitimate child for bringing a paternity proceeding, the Handley court concluded that under Mills a time period of less than one year is insufficient as a matter of law for procuring a paternity adjudication. Handley, however, has been limited to its specific facts. (Alabama Legitimation and Inheritance Law - POMS GN T00306.135 - Handley v. Schweiker, - RAIV [W~], to Asso. Comm., OPP, 11/18/83). Although the Social Security Administration has non-acquiesced in Handler, the equal protection issue will likely be raised as a constitutional issue in future cases involving the illegitimate's inheritance rights where the putative father dies at least within a year of the illegitimate child's birth.

By:

CARL H. H~

Regional Attorney

DENNIS R. W~

Assistant Regional Attorney

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

LEGITIMACY AND LEGITIMATION — LEGITIMATING ACTS BY PARENTS — GEORGIA

Under Georgia law, where the Administration finds that the wage earner entered into a void common-law marriage prior to his death and the children were born to wage earner and mother of said children prior to the date of the void marriage, held children legitimated and entitled to benefits under Title II of the Social Security Act, all other eligibility requirements being met. See opinion, B~, Hubert L. - ~ - Region IV [Kaplan], to R.Rep., SSA, Atl., 08/30/65.

(Early M~ (DNH) - RAIV [J~] - to Dir., Ins. Progs. Br., Atl., 05/17/84)

In your memorandum you asked whether a child born in Georgia before the parents entered a void common-law marriage relationship could be considered the legitimate child of the deceased wage earner.

According to the information contained in the case file the facts are as follows:

Earl D. F~, the child applicant was born June 6, 1967. According to Pauline M~, she and the decedent, Early M~, began living as common-law husband and wife on July 4, 1967 and lived as such until around June 1979. Ms. M~ stated she believed their marriage was legal since she had never been married. However, she stated that she did not know that the decedent had a prior undissolved marriage until she attempted to file for a divorce.

The information which you are seeking was supplied in an earlier memorandum. In the opinion of ~, Hubert L. - ~ - Region IV [Kaplan], to R.Rep., SSA, Atl., 08/30/65, (copy attached hereto), it was held that where the Administration finds that the wage earner entered into a void common-law marriage prior to his death and where the children were born to wage earner and mother of said children prior to the date of the void common-law marriage, the children will be considered legitimate and entitled to benefits under Title II of the Act, if they meet all the other eligibility requirements.

The above stated position was reached by our office interpreting the holdings of Campbell v. Allen, 208 GA. 274 66 S.E.2d 226 (1951) and Brazziel v. Spivey, 219 GA. 445, 133 S.E.2d 885 (1963). In Campbell, supra, the Supreme Court of Georgia held that a child of a bigamous common-law marriage, born before such marriage was annulled or declared void by a court, was the legitimate and lawful heir of his deceased father. In Brazziel, supra, the Supreme Court construing Ga. Code Ann. ~~ 53-104, 74-201 and 74-101, held that children born as the issue of parents who went through a marriage ceremony unaware that the mother's previous marriage had not been dissolved by divorce were to be considered legitimate in a habeas corpus proceeding by the mother against the father for the custody of the children. Our office believed that the Supreme Court of Georgia would hold that where illegitimate children were born as the result of a meretricious relationship but the parents thereafter enter into a common-law marriage unaware of the legal impediment to such marriage, the children even though born prior to the common-law marriage and despite that such marriage was void, would be legitimated pursuant to Section 74-101.

There has not been a change in Georgia law since this opinion was written, therefore, we believe our interpretation of Georgia law to be correct.

The claims material is returned herewith. If we can be of further service, please advise.

By:____________

CARL H. H~

Regional Attorney

JOHN J~

Assistant Regional Attorney

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS — GEORGIA

Under Georgia law, an illegitimate child whose father died prior to April 1, 1980 is entitled to a child's share of the deceased father's estate provided there was an adjudication of paternity during the father's lifetime. Poulos v. McMahan, 297 S.E.2d 451 (1982).

(Georgia Legitimation and Inheritance Law - RAIV [W~], to Asso. Comm., OPP, Balt., 05/14/84)

In your memorandum you asked us to provide language for a revised Georgia entry of Program Operations Manual System (POMS) GN 00306.135 following the August 28, 1982 decision in Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982). Looking to the law in effect in Georgia on October 19, 1977, when the application for child's benefits was filed, the court in Cox declared the application of Ga. Code Ann. §§74-101 and 74-103 governing inheritance by illegitimates to be unconstitutional. However, at the time of the decision in Cox (August 30, 1982), the Georgia legislature had already amended the inheritance law applicable to illegitimates effective April 1, 1980. Ga. Code Ann. §113-904. Under this new law, an illegitimate child may inherit from or through his father if during the father's lifetime a court of competent jurisdiction has entered an order declaring the child to be legitimate pursuant to Ga. Code Ann. §74-103 or a court of competent jurisdiction has otherwise entered a court order establishing the father of the illegitimate child. You have specifically asked us to provide language for changing the above-referenced POMS entry to reflect the applicable law for the period prior to April 1, 1980.

After the decision in Cox, the Georgia Supreme Court in , 297 S.E.2d 451 (November 30, 1982), being fully aware of Cox, had occasion to consider the inheritance rights of illegitimates prior to April 1, 1980. The issue presented in is the same issue you have presented to us. In , an alleged illegitimate child of a decedent who died on June 16, 1979 filed a petition seeking to caveat the probate of the decedent's will. The child, born on November 24, 1973, alleged the decedent was his natural father and complained that the will did not contain any distribution in favor of the child. He also contended that the will was the product of undue influence by the de from the decedent under the intestacy laws in effect at the time of the decedent's death. On appeal, the Supreme Court of Georgia affirmed the Superior Court decision that the illegitimate child had no inheritance rights under Georgia's pre-1980 statutory intestacy scheme. The court agreed that Georgia's pre-1980 intestacy scheme was unconstitutional because it excluded significant categories of illegitimates whose inheritance rights could be recognized without jeopardizing the orderly administration of estates. The court concluded that the illegitimate did not fit within such a category because there could have been but was not an adjudication of paternity during the lifetime of the natural father. Specifically, the court reasoned that an adjudication of paternity could have been obtained during the natural father's lifetime through a civil action for child support or by charging the natural father with the offense of abandonment.

Accordingly, the Poulos court held that where Georgia's pre-1980 statutory intestacy scheme would be applicable to the inheritance rights of an illegitimate, such illegitimate will be denied a child's share of his natural father's estate if there was no adjudication of paternity before the natural father died notwithstanding any unconstitutionality in Georgia's pre-1980 statutory intestacy scheme as it related to rights of illegitimate children to inherit from their father. The requirement of an "adjudication of paternity during the father's lifetime" would be satisfied under Poulos if such adjudication were made under Georgia law incident to abandonment or bastardy proceedings or any type of child support action to include the Uniform Reciprocal Enforcement of Support Act.

This office has been recently instructed by the Social Security Division Office of General Counsel, to limit the Cox decision to its specific facts and to resolve all other cases involving an illegitimate's inheritance rights under the pre-1980 Georgia intestacy scheme in accordance with the decision.

Since the decision and our instructions regarding its application in light of Cox have occurred subsequent to your memorandum and, therefore, were obviously not considered in your apparent policy decision to change the Georgia POMS entry, a POMS change based upon the Cox decision would not appear appropriate under the circumstances. However, you may want to consider an amendment to the POMS governing those cases involving Georgia's pre-1980 statute as a result of the decision. It is our recommendation that such POMS state that whenever an application for child's benefits involves the inheritance law in effect in Georgia prior to April 1, 1980, the case should be referred to the Regional Attorney, Region IV.

LEGITIMATION a/o ACKNOWLEDGEMENT a/o RECOGNITION — State Requirements and Evidence - GEORGIA

Under Georgia law, the marriage of the mother and reputed father of the illegitimate child and the recognition by the father of the child, here by signing the child's birth certificate, render the child legitimate. The reputed father's subsequent denial of paternity is not legally sufficient to revoke the legitimating act.

(Herman W~, ~ , Legitimation in the State of Georgia, RA IV (W~) to Dir., IPB, 7/22/82)

You have requested our opinion on the issue of the legitimation of the child in this case, Jamie M. W~. While it appears that the number holder's actions were sufficient to legitimate the child under Georgia law, he maintains, and submits evidence to support his contention, that he is not the biological father.

The facts, as contained in the file, are that the first husband of Dolly M. P~ F~ died February 13, 1968. Her child, Jamie, was born January 22, 1970. Herman W~ and Dolly were ceremonially married in Georgia on November 1, 1971. The father of Jamie M. W~ is shown on her birth certificate as Herman W~ and Herman W~ signed the Georgia birth certificate. Said birth certificate was apparently filed February 5, 1970, and there is no indication on its face that the birth certificate was amended or corrected.

Herman W~ filed a divorce complaint in Superior Court against Dolly W~; paragraph 5 of the complaint stated, "That there are no minor children born as issue of this marriage." In her answer, Dolly W~ admitted paragraph 5, but stated in item 3 that, "...plaintiff adopted Jamie W~, born January 22, 1970". On March 4, 1975, a Final Judgment and Decree of Divorce was issued ending the marriage of Herman and Dolly W~. In the final decree, it was ordered that Dolly W~, "...shall relinquish and waive all claims and all rights she has or may have had against the plaintiff for support and maintenance of the minor child, Jamie W~ ."

Herman W~ applied for retirement insurance benefits on August 11, 1980. On his application, he stated he had no children. Following his entitlement, an application for child's insurance benefits dated December 2, 1980, was filed on behalf of Jamie M. W~. In a statement dated January 22, 1981, Mr. W~ denied paternity stating that he did not meet Dolly until 1971, after his first wife died, and at that time Dolly already had the child, Jamie. Mr. W~'s brother Lee gave a statement reiterating this information. Dolly gave a statement dated January 21, 1981, certifying that she met Herman W~ before Christmas of 1968 and saw him regularly until his wife died in 1971. Thereafter, they saw each other openly and were married in November of that year.

A search of records in Glynn County, Georgia, revealed no legitimation or adoption proceedings regarding Jamie W~. A search for legitimation papers for Jamie W~ at the State of Georgia Bureau of Vital Statistics in Atlanta, Georgia, revealed only her birth certificate.

Although the evidence indicates Jamie was not adopted by Herman W~, it appears that she was legitimated by the marriage of Herman and Dolly W~. Ga. Code Ann. §74-101 provides, "The marriage of the mother and reputed father of an illegitimate child and the recognition by the father of the child as his shall render the child legitimate; in such case the child shall immediately take the surname of his father." The law does not state that the father must be shown to be the biological parent; the law merely specifies that the "reputed father" must recognize paternity.

In this claim, Herman and Dolly W~ were married on November 1, 1971, approximately 22 months after the birth of Jamie on January 22, 1970. On Jamie's birth certificate, which appears to have been filed February 5, 1970, Herman W~ is shown to be the father of the child. He signed his name where "Informant's signature' was indicated and his relationship to the child was again stated as "father". Thus, the marriage of Jamie's mother to Jamie's reputed father, Herman W~, and Herman W~'s recognition of Jamie on her birth certificate as his child have fully legitimated Jamie W~. It is noted that case law has determined that a father may legitimate a child even though the father was married to a woman other than the child's mother at the time of conception. In re, , 131 Ga. App. 259, 205 S.E. 2d 522 (1974).

Herman W~ now denies his earlier recognition of paternity and seeks to revoke the legitimating act. Although we could not find any Georgia cases on this point, it is generally recognized that once the alleged father has recognized and acknowledged an illegitimate child as his own in accordance with the statutory requirements, such recognition and acknowledgment may not thereafter be revoked by any subsequent act or denial by the parent. 10 Am. Jur. 2d, Bastards § 57; 33 A.L.R. 2d, 714 § 3. Georgia law provides for termination of the parent-child relationship by court order for the protection of the child and by the parent's consent to adoption. There is no indication that the state of Georgia would recognize a denial of paternity as legally sufficient to revoke the father's earlier `- imating acts of intermarriage and recognition.

The divorce action between Dolly and Herman W~ does not adversely affect the child's status. In his divorce complaint at paragraph 5, Herman W~ averred, "that there are no minor children born as issue of this marriage.' This, apparently, is a correct statement inasmuch as Jamie was clearly conceived and born out of wedlock. In her answer, Dolly admitted paragraph 5 of the complaint, but stated, at item 3 that Herman had adopted Jamie W~. However, as noted earlier, record searches have revealed no such adoption proceedings. In the Final Judgment and Decree at Item 2, Dolly relinquished and waived all claims and all rights she had or might have had against Herman W~ for support and maintenance of the minor, Jamie W~. Inheritance rights were not the issue. The final decree does not indicate that the status of Jamie W~ was determined, merely that support rights were waived. Waiver is defined as the voluntary and intentional relinquishment of a known right, claim, or privilege. Haygood v. Haygood, 190 Ga. 445, 9 S.E. 2d 834 (1940). Waiver and relinquishment of support rights cannot be construed as bastardizing the child. It is noted that even if the paternity of the child had been placed in issue in the divorce action and was adjudicated, the matter is res judicata between the husband and wife but generally the child is not concluded as to his legitimacy by the decree in that action since he ordinarily is not a party to the action 10 Am. Jur. 2d., Bastards § 7.

Thus, it is our opinion that Jamie W~ was legitimized by the intermarriage of her mother and reputed father and recognition of paternity pursuant to Ga. Code Ann. § 74-101 . The number holder's subsequent denial of paternity is not legally sufficient to revoke the legitimating act.