Wisconsin courts would interpret the effective date of acknowledgment or adjudication of paternity for nonmarital children with inheritance rights to be prospective. Where paternity is determined after the death of the father, the effective date relates back to the date of the father's death.

You have asked for a current interpretation of Wisconsin law regarding legitimation and inheritance rights. SSR 85-17 states that actions that confer inheritance rights, but do not legitimate a child, operate only from the date of occurrence. Other legal opinions, however, have suggested that Wisconsin courts would more likely conclude that acts that confer inheritance rights would establish the child's rights retroactively to birth. On re-examining this issue, we conclude that it is still unclear how the Wisconsin Supreme Court would rule on this issue. Nonetheless, as set forth below, we believe that it is reasonable to assume that courts would generally interpret the effective date of acknowledgment or adjudication of paternity for nonmarital children with inheritance rights to be prospective. However, where paternity is determined after the death of the father, we believe that courts would interpret the effective date to relate back to the date of the father's death.

DISCUSSION

The Wisconsin intestacy statute provides that a "[a] nonmarital child or the child's issue is entitled to take in the same manner as a marital child by intestate succession from and through his or her mother, and from and through his or her father" if any of the following applies:

(a) the father has been adjudicated to be the father in a paternity proceeding . . . or by final order or judgment of a court of competent jurisdiction in another state;

(b) the father has admitted in open court that he is the father; or

(c) the father has acknowledged himself to be the father in writing signed by him.

Wis. Stat. Ann. § 852.05(1). Although there is no specific case law or legislative history on the issue, we believe that a court would likely interpret the effective date of acknowledgment or adjudication of paternity for nonmarital children with inheritance rights to generally be prospective only from the date of the act conferring inheritance rights.

As set forth in Social Security Ruling 87-17, statutes that confer inheritance rights are generally presumed to operate prospectively only. The rationale for this presumption is that there is no purpose served in prescribing retroactive effect to an inheritance statute, since they operate only upon the intestate's death. We do not believe that there has been any change in Wisconsin law which would justify a deviation from this general presumption. Cf. Estate of Jank v. Miicke, 521 N.W.2d 162, 164 (Wis. Ct. App. 1994) ("[T]he right to take by intestate succession does not exist until the decedent dies intestate.").

Although the Wisconsin statutes allow for a modification of the birth certificate of an illegitimate or nonmarital child who establishes paternity, Wis. Stat. Ann. § 767.51(2), there is no reason to assume that this provision alone would require giving retroactive effect to Wisconsin's separate inheritance provisions. Moreover, the Wisconsin statutes specifically provide that an illegitimate or nonmarital child whose parents marry (i.e., is legitimated) shall not only be entitled to a change in his or her birth certificate, but shall also "enjoy all the rights and privileges of a marital child as if he or she had been born during the marriage of the parents." Wis. Stat. Ann. § 767.60. The Wisconsin statutes make no similar allowance for an illegitimate or nonmarital child. Since the Wisconsin legislature failed to include a similar allowance for an illegitimate or nonmarital child, we can infer that the legislature did not intend to bestow the same rights and privileges as a marital child.

As you indicated in your memorandum, the Office of the General Counsel has previously advised that the effective date of acknowledgment or adjudication of paternity should be considered to relate back to the nonmarital child's date of birth. PR 82-008 Illegitimate Child — Effective Date of Acknowledgment — Casey B~; PR 84-021 — Illegitimate Child — Effective Date of Acknowledgment —Terry D~. The rationale for this advice appeared to be the modernization of Wisconsin's inheritance laws in 1969. The legal opinions acknowledge, however, that Wisconsin law does not provide a clear answer to the issue. Upon further consideration, we do not believe that the purpose of the modernization was to give complete retroactive effect to acts establishing inheritance. While the legislature noted that the purpose of the changes was to "protect the innocent child," the comments to the revised inheritance provisions indicate that the changes were designed to accomplish this purpose by providing more lenient requirements to establish acknowledgment by the father, broadening the scope of those from whom the illegitimate or nonmarital child may inherit, and broadening the scope of those who may inherit from the illegitimate or nonmarital child. See Comments to Wis. Stat. Ann. 852.05. In the absence of any express change by case law or legislative history, we believe that the general presumption in favor of prospective application of inheritance provisions should be followed.

While we believe that the Wisconsin inheritance laws should generally be considered prospective, we also believe that recent changes in Wisconsin law would likely lead a Wisconsin court to prescribe a limited retroactive effect under certain circumstances. At the time SSR 85-17 was issued, Wisconsin law prohibited an illegitimate child from establishing paternity after the death of his or her father. See Paternity of N.L.B. v. G.B., 411 N.W.2d 144, 145-56 (Wis. Ct. App. 1987). Thus, the only manner through which a nonmarital child could establish inheritance rights was through actions that had to occur prior to the father's death. The father either had to acknowledge that he was the nonmarital child's father before his death or the child had to receive a paternity judgment before the father died. There was, accordingly, no need for such actions to ever have any retroactive application.

In 1993, the Wisconsin legislature amended state law to allow an illegitimate or nonmarital child to bring an action to establish paternity after the death of his or her father. Wis. Stat. Ann. § 895.01. We believe that this change requires that a date of adjudication of paternity be considered to relate back to the date of the father's death where the paternity is established after the father's death. Any heir, including a marital child, may be required to establish relationship following the death of the decedent in order to inherit. See Wis. Stat. Ann. § 863.23 ("In every administration of an estate in which notice to creditor is required, . . . the persons who are the heirs of the decedent shall be determined by the court after hearing."). Nonetheless, in all such cases, the right to inherit is considered to exist as of the date of the decedent's death. See Estate of Jank, 521 N.W.2d at 164. As in the case of any other heir, the right of inheritance of a nonmarital child who establishes paternity after the decedent's death should be considered to exist as of the date of the decedent's death. Thus, to the extent a nonmarital child establishes paternity through adjudication after his father's death, we believe that the effective date of adjudication should relate back to the date of the father's death.

We do not believe that this is inconsistent with or requires the rescission of SSR 85-17. SSR 85-17 was limited to the effect of Wisconsin's inheritance provisions under the circumstances where the father was still alive. We agree that the effective date of acknowledgment or adjudication of paternity should not have any retroactive application under such circumstances.

CONCLUSION

We conclude that, consistent with SSR 85-17, Wisconsin courts would interpret the effective date of acknowledgment or adjudication of paternity for nonmarital children with inheritance rights to generally be prospective. However, where paternity is adjudicated after the death of the father, we believe that Wisconsin courts would interpret the effective date to relate back to the date of the father's death.

LEGITIMACY AND LEGITIMATION — OTHER METHODS OF LEGITIMATION OR LEGITIMIZING — WISCONSIN

In Wisconsin neither the statute governing legitimacy nor case law specify whether the effective date of an adjudication of paternity is from the date of the adjudication or from the date of birth of the subject child. It would appear however, that Wisconsin courts would hold that the effective date would be from the date of birth of the child. (D~, Terry, ~— RAV (H~), to ARC, 04/19/84.)

You have asked whether Megan E. S~ and Erin M. S~ are entitled to benefits on the account of the wage earner, Terry D~ . We conclude that they are.

We understand that the wage earner was receiving Social Security benefits from February 1979 through October 1981. On August 28, 1980 Charmaine S~ the mother of Megan, Erin and Joel, applied for children's benefits on the D~ account, claiming that he was the father of all three children. She submitted a state court judgment dated May 21, 1976 establishing that the wage earner is Joel's father. She presented no evidence regarding Megan and Erin at that time. As a result Joel was awarded benefits on the wage earner's account but Megan and Erin were denied benefits.

On January 11, 1983, Charmaine S~ requested that the claims filed on behalf of Megan and Erin be reopened. She submitted state court judgments dated February 21, 1983 establishing that the wage earner is Megan and Erin's father.

You have asked whether this establishment of paternity is retroactive to the date of the child's birth, thus making the children eligible for benefits, or is it effective only with the date of the order.

In an April 22, 1982 memorandum we concluded that under Wisconsin law a father's written acknowledgement is retroactive to the date of the child's birth. (B~, Carey, ~,NCIF RAV {H~) to ARC-Programs {4/22/82}. There appears to a conflict between this view and a 1948 OGC opinion which concluded that SSA is "warranted" in finding that acknowledgment of a child is not retrospective. {M~ Bonnie J., ~,C-6336 RAV {R~} to Chief, Area Office {B~).

The 1948 OGC opinion relies on a 1933 state court opinion interpreting what was then Sec. 237.06 Wisc. Stat. The statute provided that where the putative father admits paternity in open court, the child "shall...be considered" his heir. In In re Mills' Estate, 249 N.W. 282 (1933), the Wisconsin court relied upon the statutory words "shall be" which, the court held, indicated "the future and not the past." Thus, an acknowledgment of paternity was not retroactive.

The Wisconsin statutes have changed since 1948. In a 1969 amendment the prospective language ("shall be") was eliminated. The statute now reads:

A child who is not legitimate ... is entitled to take in the same manner as a legitimate child ....

(emphasis added) Wisc. Stat. §852.05(1)(1979). Thus the prospective language of the statute has been eliminated.

As we noted in our April 1982 opinion, neither the statute nor Wisconsin case law specifies whether the effective date of an adjudication of paternity is from the date of the adjudication itself or from the date of the child's birth. Committee comments accompanying the 1969 changes in the statute indicate a legislative intent to protect the rights of innocent children and insure fair treatment. Based on this and the actual change in the statutory language, we conclude that a Wisconsin court ruling on this issue would be more likely to favor retroactivity.

Our conclusion is buttressed by the fact that the Court which adjudicated the wage earner's paternity here, included in its order the payment of arrearages during the period of the wage earner's disability.

DISTINCTIONS BETWEEN STATUTES OF LEGITIMATION AND INHERITANCE — WISCONSIN

Acts by an alleged father which confer inheritance rights without legitimating the child operate prospectively only.

When the alleged father declared in open court in March that he was the natural parent of the child and the Court issued a decree of paternity in June, inheritance rights were conferred on the date of the alleged father's declaration as this in itself fully satisfies the requirements of the statute. (S~, Scott L., ~ — RAV (M~), to ARC, 10/31/83.)

QUESTION PRESENTED AND ANSWER

By referral dated August 30, 1983, you have asked whether Danielle R. C~ (HC1) is entitled to child's benefits on the account of Scott L. S~ from June 6, 1982, the date of a circuit court order of paternity and support, or whether a prior date of entitlement is appropriate. You refer to POMS GN T00306.100 and a 1948 legal opinion from this office which suggest that such court orders only operate to confer inheritance rights prospectively in Wisconsin. See Bonnie J. M, C-6336, A/N ~, RA-V (R~) to Area Office (B~), 9/16/48. For the reasons which follow, in our opinion March 5, 1982 is the appropriate date on which to base entitlement in this case. On that date the account holder admitted paternity in open court.

BACKGROUND FACTS

Danielle R. C~ was born on June 30, 1980. Her mother, Cheryl L. C~, was unmarried. On September 4, 1980, paternity proceedings against Scott L. S~, the account holder, were commenced in the State of Wisconsin Circuit Court for Manitowoc County. Shortly thereafter, Mr. S~ denied paternity in court. In December 1980, Mr. S~ agreed to admit paternity if blood tests established him to be the child's father. The results of the blood tests were received on November 24, 1981, and stated, "The odds in favor of paternity are 582 to 1,'or 99.83%. Paternity is practically proved." At a pretrial conference held on March 5, 1982, Mr. S~ admitted paternity and agreed to assume support obligations for Danielle. The court entered the paternity and support order on June 8, 1982. In addition to ordering prospective support payments of $10.00 per week commencing June 4 1982, the court also ordered past support in the amount of $1900.00. Jeff W~, Branch Manager, Manitowoc, Wisconsin Branch Office, SSA, has advised us that based on his conversations with Kenneth R. N~, Wisconsin Child Support Coordinator, the support order was retroactive to the child's date of birth. The court also ordered that fees be paid for filing of a corrected birth record pursuant to Wis. Stat. Ann. 69-24(1)(e) (West).

Cheryl C~ filed the application for child's benefits on behalf of Danielle on May 26, 1982. Scott L. S~ has been entitled to disability benefits since February 22, 1980, prior to Danielle's birth.

DISCUSSION

Under Section 21'6{h){2)(A) of the Social Security Act, 42 U.S.C. 416(h){2)(A), entitlement to child's benefits reflects the State law of intestate succession. Wis. Stat. Ann. 852.05 (West) provides that an illegitimate child is entitled to inherit from his or her father if the father has acknowledged his paternity either in writing or in open court or has been adjudicated to be the father in a paternity proceeding under Wis. Stat. Ann. Ch. 767 {West). In this case, we have a court order of paternity dated June 8, 1982, We also have an earlier acknowledgment of paternity in open court on March 5, 1982. ^[1] In our opinion, the March 5, 1982 oral acknowledgment of paternity in open court, without more, satisfied the statutory requirement. See R~, A/N ~ OGC (P~) to SSA, 7/21/65. In the R~ case, OGC advised that the child-claimant had potential inheritance rights in Wisconsin law from September 11, 1964, the date on which the account holder entered a plea admitting paternity, rather than from the later date of October 23, 1964, when the court order of-paternity was entered. ^[2] Moreover, the oral acknowledgment of paternity in open court need only be clear and unequivocal when made to satisfy the Wisconsin statutory requirement. In re T~ Estate, supra, the court stated,

Thus it is possible that an illegitimate child could inherit from a father who in one courtroom had denied paternity but in another had admitted paternity .... If at some other time the father makes a clear and unequivocal admission of paternity in open court, this may support a finding in favor of the illegitimate's being an heir.

118 N.W.2d at 935. Thus Danielle first satisfied the requirements of Wis. Stat. Ann. 852.05 (West) for intestate inheritance from the account holder by the March 5, 1982 oral acknowledgment of paternity by Scott S~ in open court.

This office has previously advised that the provisions of Wis. Stat. Ann. 237.06, which has been slightly modified and renumbered as Wis. Star. Ann. 852.05 effective April l, 1971, operate prospectively and do not confer potential rights of inheritance on the illegitimate child before the acknowledgment or court order of paternity. M~ C-6336, A/N ~, RA-V (R~) to Area Office (B~), 9/16/48; R~, A/N ~, OGC (P~) NCIF to SSA, 7/21/65. In its present section of Wis. Star. Ann. 852-05(1) (West) reads:

(1) A child who is not legitimate or the child's issue is entitled to take in the same manner as a legitimate child by intestate succession from and through his or her mother, and from or through his or her father if the father has either been adjudicated to be the father in a paternity proceeding under ch. 767, or has admitted in open court that he is the father, or has acknowledged himself to be the father in writing signed by him.

Notwithstanding amendments to the statute since 1965 ^[3] , in our opinion the conclusions reached in our prior memoranda remain correct. ^[4] As we explained in the 1948 M~ opinion, supra, courts have consistently distinguished between statutes which legitimate children and those which merely confer inheritance rights. While acts of legitimation tend to be given effect retroactive to the birth of the child, acts which confer inheritance rights without legitimating the child operate prospectively only. One frequently given rationale for the difference is that since inheritance statutes operate only upon somebody's intestate death, no purpose is generally served in ascribing retroactive effect to such statutes. The section of the Wisconsin statute involved herein in not a statute that confers legitimacy; rather it only confers inheritance rights. Therefore, because there is no case law or legislative history to the contrary, we conclude that actions which confer inheritance rights operate only from the date of their occurrence.

We recognize that in this case the paternity order appears to have included some retroactive elements. Past support and a corrected birth certificate were ordered. However, we find no basis in Wisconsin law for concluding that retroactive actions ordered under the paternity statute, Wis. Stat. Ann. Ch. 767 {West}, serve to legitimate the child or otherwise affect the operation of Wisconsin's separate intestate inheritance statute, Wis. Stat. Ann. 825.05(1) (West). ^[5]

Moreover, the retroactive support payments ordered by the court cannot serve to establish an earlier date of entitlement to benefits under Section 216(h)(3)(B), 42 U.S.C. 416(h)(3)(B), in this case. Under that section, the date on which support contributions began may provide an alternative basis for determining entitlement of an illegitimate child to benefits on the account of a disabled parent. However, that section operates only where the support contributions predate the onset of the parent's disability. Because the child in this case was born after the father's period of disability began, any retroactive support payments ordered by the court cannot possibly predate the account holder's onset of disability.

CONCLUSION

March 5, 1982, the date on which the account holder first admitted paternity of the claimant in open court, is the appropriate date on which to base entitlement to benefits As OGC advised in R~,NCIF A/N ~ OGC (P~) to SSA, 7/21/65', the first date on which the requirements of Wisconsin's intestate inheritance statute were met controls, notwithstanding the later court order of paternity on June 6, 1982 which also satisfied the requirements of the intestate inheritance statute. In addition, for the reasons outlined above, any earlier dates cannot be justified in this case (e.g., the date of the positive blood test results or the date from which support payments were retroactively ordered).

LEGITIMACY AND LEGITIMATION — LEGITIMATING ACTS BY PARENTS — WISCONSIN

Neither statutory nor case law in Wisconsin specifies whether an acknowledgment becomes effective at the time it is made or retroactively to the date of birth of the child. In the absence of such a provision it would be reasonable to find that the acknowledgment became effective from the date of birth. (B~, Casey, ~— RAV (H~), to ARC, 04/21/82.)

You have inquired as to whether Latisha E~ is entitled to retroactive benefits on the account of Casey B~

We understand that Latisha E~ was born to Barbara E~ on December 3, 1978. Although Barbara was married to Ron E~ at the time, they had been separated since prior to the time of conception and both Barbara and Ronald have claimed that Ronald is not Latisha's father. On December 26, 1979 the Circuit Court of Sheboygan County, Wisconsin found that Ronald was not Latisha's father. On September 22, 1981, Casey B~ acknowledged in writing that he was the child's natural father. You have therefore concluded that, effective October 1, 1981, Latisha is entitled to benefits on B~'s account.

You now ask whether Latisha is also entitled to twelve months retroactive benefits. We conclude that she is.

Under the provisions of 20 C.F.R. §404.621(a) a claimant may be entitled to retroactive benefits for up to twelve months prior to the date of application. Benefits should begin the first month of that twelve month period in which the claimant met all the requirements for entitlement. Thus, the effective date of B~'s acknowledgement is critical for determining when Latisha's benefits should begin.

Under Wisconsin law, if a father acknowledges paternity in writing, an illegitimate child assumes the status of a legitimate child for inheritance purposes. Wisc. Stat. §852.01. Neither the statute nor case law specify whether the effective date of such acknowledgment is from the date of the acknowledgment itself or from the date of the child's birth. Prior OGC opinions, however, have held that where a statute gives an acknowledged or legitimated child the status of one born in wedlock, the reasonable interpretation is that such acknowledgement is retroactive to the date of the child's birth (M~, William, ~, RA III (C~) to Director, DFC, BRSI (2/6/69). (G~, John 0., ~ - RA II (L~) to OGC, SSA 6/3/70). Therefore Latisha effectively met the requirements for entitlement from the time of her birth and she is eligible for retroactive benefits.