TN 29 (10-05)

GN 00306.675 Wisconsin Intestacy Laws

Under Wisconsin law, a child may inherit from his or her parent as follows:

1. A. 

   Marital child
   

   1. A marital child can inherit from his or her mother and father.
   2. A marital child includes:
   a. A child who is conceived or born while his or her parents are lawfully intermarried (even if the marriage is subsequently declared void); and
   b. A child whose parents subsequently intermarry.
   
   3. When a child is a marital child, it is generally presumed that the husband of the child’s natural mother is the child’s father; the presumption can be rebutted only by a clear and satisfactory preponderance of the evidence (see GN 00306.675C. and GN 00306.675D).
   

2. B. 

   Nonmarital child
   
   1. A nonmarital child can inherit from his or her mother in the same manner as a marital child.
   
   2. A nonmarital child can inherit from his or her father if any of the following applies:
   a. (I) prior to 03/31/71, the father acknowledges himself to be the father in writing signed in the presence of a competent witness. Effective 04/01/71, the father acknowledges himself to be the father in writing signed by him (no witness required). See d. below. This inheritance provision has prospective effect only; or
   b. (I) the father has admitted in open court that he is the father. See d. below. This inheritance provision has prospective effect only; or
   c. (I) the father has been adjudicated to be the father in a paternity proceeding. Effective 04/01/98, a statement acknowledging paternity that is on file with the state registrar under Wis. Stat. § 69.15(3)(b)(3) after the last day on which a person may timely rescind the statement, is a conclusive determination of paternity and has the same effect as a judgment of paternity. Paternity adjudications during the father’s lifetime by a court or by SSA applying the court’s standard, or statements acknowledging paternity that have the same effect as a judgment of paternity, have prospective effect only. Paternity adjudications after the father’s death by a court or by SSA applying the court’s standard have retroactive effect back to the father’s death.

   
   For claims filed on or after 11/27/98, or pending on that date, the State court order described in GN 00306.675B.2.c. need not actually be obtained for a nonmarital child to qualify as an insured individual’s child under section 216(h)(2)(A) of the Act. An SSA adjudicator may independently determine paternity by applying relevant Wisconsin law. See GN 00306.675C. through GN 00306.675E.
   

   d. With respect to a. or b. above, a nonmarital child must show that he or she is the deceased’s child. If there is reason to doubt that the individual making the acknowledgment or admission is the child’s father, the presumptions in GN 00306.675C apply, and other evidence relevant to paternity (see GN 00306.675D) should be considered.

   
   3. Effective 04/01/71, a father can inherit from a child if the father has been adjudicated to be the father in a paternity proceeding.
   

3. C. 

   Under Wisconsin law, a man is rebuttably presumed to be a child’s father if:
   
   1. Presumptions based on marriage: Rebutting the presumptions based on marriage requires clear and satisfactory preponderance of the evidence. A man is rebuttably presumed to be a child’s father if:
   a. Prior to 07/01/81, he was lawfully married to the child’s natural mother when the child was born;
   b. Effective 07/01/81 through 05/18/84, he and the child’s natural mother are or were married to each other and the child was conceived or born during the marriage and prior to the commencement of an action for legal separation, annulment or divorce between the parties;
   c. Effective 05/19/84, he and the child’s natural mother are or have been married to each other and the child is conceived or born after marriage and prior to the granting of a decree of legal separation, annulment or divorce between the parties;
   d. Effective 04/28/90, he and the child’s natural mother were married after the child was born but he and the child’s natural mother had a relationship during the period of time within which the child was conceived, and no other man has been adjudicated to be the father or is presumed to be the father based on marriage at the time of conception or birth.
   
   For any of the above presumptions, conception of the child shall be presumed to have occurred within a span of time extending from 240 days to 300 days before the date of birth, unless competent evidence to the contrary is presented. Examples of a clear and satisfactory preponderance of the evidence that would rebut the presumption based on marriage include biological tests demonstrating non-paternity or evidence that the husband was absent or incapable of sexual intercourse with the mother during the conceptive period. These examples are not exclusive.
   
   2. Presumptions based on an acknowledgment of paternity: Rebutting the presumption requires clear and satisfactory preponderance of the evidence. A man is rebuttably presumed to be a child’s father if:
   
   a. Effective 07/01/81 through 05/18/84, he has acknowledged paternity of the child in writing filed with the department of health and social services and either lived with the child’s natural mother at the time of conception or married or attempted to marry the child’s natural mother after the child’s birth; or
   b. Effective 05/19/84 through 04/27/90, he has acknowledged paternity of the child in writing filed with the state registrar and he either lived with the child’s natural mother at the time of conception or married or attempted to marry the child’s natural mother after the child’s birth, provided that no other man is presumed to be the natural father based on marriage at the time of conception or birth; or
   c. Effective 04/28/90, he and the mother have acknowledged paternity under Wis. Stat. 69.15(3)(b)(1) or (3) and no other man is presumed to be the father based on marriage at the time of conception or birth. (See section GN 00306.675B.2.c. above for when a statement acknowledging paternity is a conclusive determination of paternity.)
   
   3. Presumptions based on genetic tests: A man is rebuttably presumed to be a child’s father if:
   a. Effective 07/01/81 through 12/31/94, blood tests show that the alleged father is not excluded and that the statistical probability of the alleged father’s parentage is 99 percent or higher; or
   b. Effective 01/01/95, genetic tests show that the alleged father is not excluded and that the statistical probability of the alleged father’s parentage is 99 percent or higher.
   

4. D. 

   In addition to the presumptions in GN 00306.675C , the SSA adjudicator may consider other evidence relating to paternity to determine whether a parent-child relationship has been established. Paternity must be established by clear and satisfactory preponderance of the evidence. Clear and satisfactory preponderance of the evidence requires more certainty on the part of the fact-finder than a “preponderance of the evidence” standard (more than 50%), but less certainty than the “beyond a reasonable doubt” standard. Effective 07/01/81, evidence relating to paternity may include, but is not limited to:
   
   1. evidence of sexual intercourse between the mother and alleged father at any possible time of conception or evidence of a relationship between the mother and father at any time. Testimony relating to sexual relations or possible sexual relations of the mother at any time other than the possible time of conception may not be considered, unless offered by the mother; or

   2. an expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy; or

   3. medical, scientific or genetic evidence relating to the alleged father's paternity of the child based on tests performed by experts, including the statistical probability of the alleged father's paternity based on genetic tests. If the results of genetic tests exclude the alleged father as the father of the child, this evidence shall be conclusive of non-paternity; or

   4. all other evidence relevant to the issue of paternity.

5. E. 

   If under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband of the mother at the time of the conception of the child is the natural father of a child conceived. The husband’s consent must be in writing and signed by him and his wife. The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is not the natural father of a child conceived and has no parental status with regard to the child.