You have requested our opinion as to whether Dimitri and Alec are children of the
deceased number holder (NH) Daniel for purposes of entitlement to child's insurance
Vivian is the mother of Dimitri and Alec . On April 2, 1999, Vivian's attorney, Clarence.,
provided the following information in connection with Vivian's withdrawal of her request
for an SSA administrative hearing. Vivian believes she married the NH in Mexico in
1968. The record contains a receipt dated July 20, 1968, from Jose, “in charge of Foreign Affairs,” Tijuana, Baja California, Mexico, acknowledging receipt of fifteen dollars from the
NH and Vivian for service in representing and completing “Their Marriage Transactions Before the Proper authorities.” This receipt was filed with the Circuit Court for Lee County, Florida. On her October
8, 1982, Petition for Dissolution of Marriage, in the Circuit Court for Lee County,
Florida, Vivian states that she and the NH married on July 27, 1968, in Tijuana, Mexico,
and that Dimitri and Alec were born of the marriage.
Until 1999, no one denied the validity of their marriage or questioned the NH's paternity
of her sons or of a first child who was stillborn in 1968. Alec states that when Vivian
filed in 1982 for divorce in Florida, the court ordered the NH to pay temporary, and
possibly permanent, child support. Alec states that according to the record, the divorce
decree was set aside for jurisdictional reasons, but that the NH did not deny, by
responsive pleading or otherwise, the validity of his marriage or the children's paternity.
The record indicates that on September 17, 1984, the Circuit Court for Lee County,
Florida, issued an Order Setting Aside Final Judgment of Dissolution, and the court
ordered the NH to pay child support and medical bills on behalf of Dimitri and Alec.
When a settlement agreement was reached between the parties, divorce proceedings were
dismissed without a determination of the validity of their marriage or the paternity
of the children. On July 15, 1985, the Circuit Court Clerk for Lee County, Florida,
certified a Stipulated Settlement of Lawsuit Property and Child Custody Rights.
Alec said he believed that even if a Mexican marriage could not be established, Vivian
and the NH were married under Iowa common law. Alec said he presented Vivian's testimony
and that of Helen , a distant cousin of Vivian's mother, to establish Vivian's and
the NH's general reputation in the Council Bluffs community and among their families
as husband and wife. He indicated that had Vivian not withdrawn from the scheduled
SSA hearing, he had intended to present additional testimony from the NH's sister
and two other persons who knew the NH and Vivian as husband and wife in Council Bluffs.
In a letter dated March 8, 2001, George identified himself as the NH's father and
as Dimitri and Alec's grandfather. Daniel stated the NH met Vivian in 1964. Thereafter
the NH and Vivian moved to California. After the NH completed aviation school in California,
he and Vivian moved into a house together in Council Bluffs, Iowa. The NH told his
father that they were married by a Mexican Justice of the Peace. In the mid-70's,
Vivian temporarily moved to Greece as she and the NH were “in constant arguments.” She returned to Iowa, and Dimitri was born in 1979. The NH moved his family to Ft.
Myers, Florida, where their second son, Alec, was born in 1982. The NH and Vivian
eventually separated, with Vivian returning to Iowa. Daniel said he believed that
Dimitri and Alec are the NH's biological children, and he submitted his Christmas
2000 newsletter referencing Dimitri and Alec as the NH's children.
In a letter dated December 11, 2001, Connie, the NH's sister, reiterated her father's
statements that the NH and Vivian met in 1964, and that they were together until 1973,
moving together from Iowa to California in 1968. During 1968, Vivian had a stillborn
baby, and the NH's father flew to California to bring the baby “back to Iowa to be buried with our family gravesites.” Connie also said the NH and Vivian married in 1968 in Tijuana, Mexico. While in Mexico,
they had a bad automobile accident and were held by the Mexican government. The NH's
father went to the American Embassy in Mexico to get them returned to the United States.
The couple separated in 1974, and Vivian moved to Greece. Vivian later returned to
the United States and became pregnant in 1979, giving birth to Dimitri on November.
The couple again separated, and the NH moved to Florida. Vivian followed the NH to
Florida, where she became pregnant, giving birth to Alec in 1982 in Ft. Myers, Florida.
Vivian stayed in Florida until 1984 when she moved back to Iowa. Connie states she
“can honestly say that Dimitri and Alec are the real children from my brother.”
Dimitri was born on November, in Omaha, Nebraska, and his Nebraska birth certificate
identifies the NH as his father. Alec was born in Fort Myers, Florida, on September,
and his Florida Certificate of Live Birth shows the NH as his father. Pursuant to
a May 1985, Florida Final Judgment of Name Change, Dimitri and Alec changed their
last name to Dimitri. On July 12, 1985, Vivian applied for amendment of Dimitri's
birth certificate, changing his father's identity to “unknown,” and reflecting the change of Dimitri's last name to Alec.
The record also contains a July 26, 1994, the County Court, Lee County, Florida, Judgment
Satisfaction in the case of Hospital Board of Directors of Lee County v. Daniel G. and Vivian J. D~ showing that the NH and Vivian paid a judgment which had been entered by the court
on July 8, 1982. Also, an August 22, 1994, letter from the Iowa Department of Human
Services to Vivian addresses the role of a child support recovery attorney and references
the wage earner “D.G. .” A subsequent notice from the Iowa Department of Human Services notes that a support
order was filed on September 17, 1984, and that the NH was $2,800.00 in arrears.
In a letter dated December 30, 1997, Joy identified herself as the NH's widow and
stated that Evan is the NH's son. She stated a stipulated settlement between the NH
and Vivian released the NH's estate from subsequent claims. In a subsequent letter
dated December 22, 1998, Alec indicated she knew nothing of Vivian except for the
contract the NH and Vivian signed “almost 14 years ago.” She stated her husband died in prison in Georgia, leaving her and their son with
nothing. NH lived in Florida before his imprisonment.
We believe that Dimitri and Alec are children of the NH for purposes of entitlement
to child's insurance benefits.
The Social Security Act, 42 U.S.C. Sec. 416(h)(2)(A), provides that the Commissioner,
in determining whether an applicant is the child of an insured individual, shall use
the law governing the devolution of intestate personal property applied by the courts
of the State in which the insured individual was domiciled at the time of his death.
Here, NH, although in prison at the time of his death, was domiciled in Florida. One
of the children was born in Florida and both lived there for several years. Accordingly,
it appears that Florida courts would look to Florida laws to determine the status
of these children. See Memorandum, Florida Choice of Law Issue (H~) to Sandy , June 25, 2001 (attached).
Under Florida law, Dimitri and Alec would likely be considered legitimate children
eligible to inherit. Vivian and NH reportedly entered into a marriage in Mexico and
some documentation was provided supporting this claim. There is no indication in the
record that Vivian or NH was previously married or unable to contract a marriage.
Even if the marriage were void, Florida would likely recognize the marriage because
it was followed by the couple holding themselves out as married to family, friends
and the public, holding property and raising two children. Also, no allegation apparently
was made that the marriage was void until Vivian filed her dissolution proceeding.
Under these circumstances, a Florida court held that annulment of a Mexican marriage
was improper and that the husband was estopped to deny the validity of the marriage.
See Lambertini v. Lambertini, 655 So.2d 142 (Fla. App. 1995).
Additionally, Vivian and NH may have been married under the common law of Iowa. Common
law marriages cannot be entered into in Florida. Fla. Stat. Ann. Sec. 741.211 (West
2002). However, Florida also would recognize a valid common law marriage established
in Iowa. See Compagnoni v. Compagnoni, 591 So.2d 1080 (Fla. App. 1991); American Airlines v. Mejla, 766 So.2d 305 (Fla. App. 2000). Iowa recognizes common law marriages. See Matter of Estate of S~, 519 N.W.2d 97 (Iowa App. 1994). Such a marriage may be established by clear and
convincing evidence of intent and agreement to marry, cohabitation, and general and
substantial public declarations that the parties are husband and wife. Id.; In re Marriage of G~, 242 N.W.2d 1 (Iowa App. 1976). Here, evidence from NH's family members indicates
that Vivian and NH viewed themselves as married, cohabited, and were viewed by the
community as a married couple. They appear to have established a valid common law
marriage in Iowa that would be recognized in Florida.
Even where no valid marriage results, Florida public policy does not favor penalizing
children of an invalid marriage for the actions of their parents. As one Florida court
noted, “Such children are the innocent victims of the situation. They should not be deprived
of the right to be supported merely because the parents have created the invalidating
circumstances.” Burger v. Burger, 166 So.2d 433, 436 (Fla. Sup. Ct. 1964). In that case, both parties obtained Mexican
mail-order divorces before obtaining a Mexican proxy marriage. The court held that
it had jurisdiction to grant a divorce and provide for support of the children despite
the arguable invalidity of the marriage. Accordingly, it appears that Florida would
view Dimitri and Alec as legitimate children.
Even if the children were considered illegitimate, they would be entitled to inherit
under Florida law. Pursuant to Florida Statutes Annotated Sec. 732.108(2), which defines
the inheritance rights of persons born out of wedlock, such persons can inherit from
their father if: (a) The natural parents participated in a marriage ceremony before
or after the birth, even though the attempted marriage is void; (b) The paternity
of the father is established by an adjudication before or after the death of the father;
or (c) The paternity of the father is acknowledged in writing by the father. These
factors must be established by clear and convincing evidence. See Thurston v. Thurston, 777 So.2d 1001 (Fla. App. 2000). As noted above, both testimony from family members
and a document indicate that Vivian and NH participated in a marriage ceremony in
Mexico before the birth of the children.
Aside from Florida law, the Social Security Act, 42 U.S.C. 416(h)(3)(C), allows a
“deemed child” to receive child's benefits on the account of a deceased father if before his death
the father: (I) acknowledged in writing that the child was his; (II) had been decreed
by a court to be the father; (III) had been ordered by a court to contribute to the
support of the applicant before the death of the father. NH's name was on both of
the children's birth certificates when they were born. NH also had been ordered by
forums in two jurisdictions (Iowa and Florida) to pay child support. The record appears
to contain clear and convincing evidence that Dimitri and Alec are the children of
the NH and would be eligible to receive benefits.
Joy submitted a stipulated agreement dated April 17, 1985, in which Vivian waives
her right to receive child support or make any claim against NH's estate. However,
Vivian could not waive the rights of her children to receive support or share in their
father's estate. Florida courts have repeatedly held that a parent cannot waive a
child's right to support. In Fleming v. Brown, 581 So.2d 202 (Fla. App. 1991), the court held that a mother could not waive her
child's entitlement to support in exchange for the husband's waiver of parental rights;
accord, Paris v. Bollon, 503 So.2d 1387 (Fla. App. 1987); see also Shinall v. Pergeorelis, 325 So.2d 431 (Fla. App. 1976) (an illegitimate child's right to support from his
putative father cannot be contracted away by its mother and any release executed by
her is invalid to the extent that it purports to affect rights of child). Florida
courts have also held that a mother cannot waive the right of her children to receive
benefits from the father or any other governmental agency. See State of Florida Dept. of Revnue for Payne v. Ortega, 682 So.2d 589, 590 (Fla. App. 1996). Accordingly, this stipulation and agreement
would not prevent Dimitri and Alec from receiving child's benefits.
It is our opinion that Dimitri and Alec are children of the NH for purposes of entitlement
to child's insurance benefits, whether they are viewed as legitimate or illegitimate
children of NH. As legitimate children, Dimitri and Alec would be entitled to benefits
from at least six to twelve months before the time of their own applications. See 20 C.F.R. Sec. 404.621(a)(1(i) & (ii) (2001) (applicant for child's benefits may be
entitled to benefits for up to six or 12 months before the month in which he or she
applies, depending on the eligibility status of the NH). Vivian's 1997 application
on the children's behalf was dismissed at her request on April 6, 1999. The dismissal
of a request for a hearing is binding unless vacated within 60 days of the date of
receipt of the notice. 20 C.F.R. Sec. 404.958 (2001). Determinations may be reopened
within four years only if good cause is established. 20 C.F.R. Sec. 404.988 (2001).
Good cause may be found by the existence of new and material evidence, clerical error,
or clear error in the decision. 20 C.F.R. Sec. 989 (2001). Here, there does not appear
to be good cause for re-opening the 1999 dismissal. Thus, benefits would not be payable
back to the 1997 application.
Very truly yours,
Mary Ann Sloan
Regional Chief Counsel
Laurie G. R~
Assistant Regional Counsel.