1. Introduction and Conclusion
On October 21, 1982 we forwarded an interim response in the above-captioned matter.
We have succeeded in making contact with only one authoritative source in the state
who has offered assistance in interpreting relevant Michigan law: Probate Judge Harold
E. R~. Genessee County, Michigan who is the author of an article concerning illegitimate
children and rights of inheritance which appeared in the Michigan State Bar Association
Journal, 57 Mich. S.B.J. (May, 1978). In order not to delay resolution of this matter
any longer, we are proceeding to issue this opinion based upon the legal authorities
we have consulted to date.
As noted in our interim response, the attorney for the claimant has asserted that
the Michigan Probate Code provides that the child claiming benefits in this case is
presumed to be the natural child of the deceased number-holder Willie B~, even though
the mother has freely stated that the child was fathered by another man. We have concluded
that the statute in question, when interpreted in light of the contemporaneous case
law concerning rebuttal of the presumption of legitimacy of a child born during marriage,
permits either the husband or the wife of such marriage to disprove the presumption.
Given the facts in this case, we have further concluded that the presumption is rebutted
here and the child may not claims as the child of Willie B ~.
2. Background Facts
The basic facts in this case appear to be as follows. Willie B~ and Bobbie Jean P~
were married in Tennessee on June 28, 1958. Willie left their home about two years
after the 1961 birth of a child and called Bobbie from Detroit, Michigan a few days
later. Willie returned to Tennessee three times: once in 1978, once at Christmas,
1979, and once about a month before his death in Michigan on May 23, 1980.
The claimant child, Victor L. B~, was born in Tennessee on October 2, 1967 to Bobbie
Jean, but his birth certificate does not show the name of the father. Bobbie Jean
has stated that the father is Edward G~. Records for Bobbie Jean under the Aid to
Families with Dependent Children program, Title IV-A of the Social Security Act, as
amended, 42 U.S.C. 601 et seq., have consistently shown Edward G~ as the father of
Based upon the foregoing evidence, the Administration determined that the presumption
of legitimacy of the child born during a marriage had been rebutted; that Victor was
not the child of the number-holder; and that, therefore, child's benefits must be
denied. The attorney for the claimant has requested reconsideration, submitting certain
provisions of the Michigan Probate Code governing intestate successions.
Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. 416(h)(2)(A), directs the
Secretary to determine the status of child by applying such law as would be applied
by the courts of the state in which the insured individual dies domiciled when those
courts determine the devolution of the insured individual's intestate personal property.
Since Willie B~ died do look to the law of intestate succession which the Michigan
courts would apply. "In determining heirs, the general rule is that descent and distribution
of property is determined by the law of the situs, actual or constructive." In the
Matter of estate of B~ deceased, Blanco V. Blanco et al., 323 N.W.2d 671(Mich. App. 1982). The situs of Willie's property is Michigan and
Michigan law would apply.
In its Probate Code, Michigan provides by statue as follows:
(1) For all purposes of intestate succession, a child is the heir of each of his or
her natural parents notwithstanding the relationship between the parents except as
otherwise provided by (the statutory section terminating parental rights for intestate
secession in cases such as court order or release for adoption).
(2) If a child is born or conceived during a marriage, both spouses are presumed to
be the natural parent of the child for all purposes of intestate succession. . .
(3) Only the person presumed to be the natural parent of a child under subsection
(2) may disprove any presumption that may be relevant to the relationship, and this
exclusive right to do so terminates upon the death of the resumed parent. W.C.L. 700.111(1)-(3);
This 1979 revision of the Code was in effect at the time of Willie B~ death.
Prior to the passage of this statute, the Michigan Supreme Court dealt with the common
law presumption of legitimacy which protects the status of a child born during marriage
in the case of Serafin v. Serafin, 401 Mich. 529, 258 N.W.2d 461 (1977). The S~ decision abrogated Michigan's common
law adherence to what is commonly referred to as Lord Mansfield's Rule: "that the
declarations of a father or mother shall not be permitted to say after marriage that
they have had no connection, and therefore that the offspring is spurious." 258 N.W.
2d at 462; Egbert v. Greenwalt, 44 Mich. 245, 249, 6 N.W. 654 (1880). After Serafin , therefore,  it is possible under Michigan common law for a husband and wife to testify concerning
nonaccess to each other so as to rebut the presumption of legitimacy of a child born
during their marriage. 258 N.W.2d at 462. The S~ court quoted with approval from the
high court of a sister state:
We are not persuaded that the public treasury should be protected (by avoiding enrollment
of an illegitimate child on public welfare) by foisting upon a husband the support
of a child obviously not his own. 258 N.W.2d at 453.
The S~ court went on to declare:
Neither is the peace of the general society fostered by continued adherence to (the
rule precluding a husband or wife testifying so as to establish the illegitimacy of
a child born during their marriage. Rather, we are convinced, it is best fostered
by lifting the veil of incompetency imposed upon a husband on wife by the rule. In
our view the public peace and respect for law are enhanced, not by arbitrarily assigning
the duty of support to a man who is not the father of the child, but by allowing him
to contest paternity by his best evidence. 258 N.W.2d at 463 (emphasis added).
Finally, the court quoted with approval the following declaration from the appellate
court of another sister state:
If the function of a court is to find the truth of a matter so that justice might
be done, then a rule which absolutely excludes the best possible evidence of matter
in issue rather than allow it to be weighed by the trier of fact must necessarily
lead to injustice. Further, when a court voluntarily blindfolds itself to what every
citizen can see, the public must justifiably question the administration of law to
just that extent. 258 N.W.2d at 463.
The S~ decision confirmed that there still exists a strong presumption of legitimacy
of a child born during a marriage, even though testimony of the husband or wife might
now be admissible in rebuttal of that presumption. Only "clear and convincing evidence"
will rebut this presumption. 258 N.W.2d at 463. In a concurring opinion, Justice C~
focused attention on the strength of this presumption:
The presumption of legitimacy is one of the strongest presumptions know to the Law.
. . .
The phrase "clear and convincing evidence". . . obviously does not mean that a mere
preponderance of the evidence or a modicum of additional evidentiary weight will be
sufficient to overcome the presumption of legitimacy. Much more than that is necessary.
The proof of illegitimacy must be "very convincing", "of such cogency as to render
belief necessary", and "beyond all reasonable doubt" before a judge can rule that
a child is illegitimate. . . . The husband who seeks to establish that he is not the
father of a child born during the marriage still faces a formidable task. 258 N.W.2d
at 464-465. See, also, Shepard v. Shepherd, S1 Mich. App. 465, 265 N.W.2d 374,375, (1978).
Section 700.111 of the probate code and S~ in the common law must be read together
and, if possible, in harmony in order to interpret the current state of Michigan law
concerning rebuttal of the presumption of legitimacy of a child born during marriage.
The 1977 court decision reflects two primary concerns: first, to protect the status
of the child with a strong presumption; but, second, to establish the truth of the
paternity of the child clearly and convincingly with the best evidence possible, rather
than obscuring the truth by interposing the artificial veil of an essentially irrebuttable
presumption. The 1979 statute appears to be susceptible to several interpretations,
only one of which, we submit, is harmonious with S~. We have found no evidence from
the legal authorities to which we have had access that the statute was intended to
reverse the effect of S~.
The interpretations of the section 700.111(1)-(3) which its language may support are
as follows. First, the statute may be read to mean that "the person presumed to be
the natural parent" can only mean the husband in the marriage and that, if he does
not disprove the presumption of legitimacy before his death, it becomes an irrebuttable
presumption. It is true that the only presumption of parentage required in most cases
is a presumption of paternity, not one maternity. Given this fact and the reference
to the singular "person presumed" rather than the plural "persons", it is arguable
that only the husband as the presumed father has the right to disprove the presumption.
A second interpretation is in accord with first to the effect that only the husband
is the "presumed" parent with the right to disprove the presumption. However, under
the second interpretation anyone, including the estate of a deceased husband, may
challenge the presumption, but only bringing to bear evidence of acts or statements
of the "presumed person" in disproof of it. Such acts or statements might range from
explicit denial of paternity to prolonged non-access from the mother during the feasible
period of conception of the child. This interpretation appears to us to be strained,
given the actual wording of the statute. It does, however, have the merit of recognizing
that a husband who has not had the caution to make a will for disposal of his property
at death (as is true under this intestacy statute) is not likely during his lifetime
to have formally challenged the legal status of a putative child with proofs of the
impossibility of his paternity.
Indeed, in many cases he may not even know of the existence of the potential claimant
to his property. It must be recognized that the question of whether there be a presumption
of legitimacy for intestate secession of the putative child may frequently not arise
until the death of the "presumed" parent. It seems anomalous that under the first
interpretation the legislature would have provided the possibility of challenging
the legitimacy of a claimant to the intestate succession, only to extinguish the possibility
by limiting the right of challenge to the dead person alone. Under the second interpretation,
another interested party, such as the representative of the estate of the deceased
"presumed" parent, could challenge the presumption. The statute would limit the proof
to those of the actions or statements of the deceased while he was alive, however.
A third interpretation of the statute is based upon reading "the person presumed to
be the natural parent" in subsection (3) as meaning either the husband or the wife,
because both are statute also reads that the presumed parent "may disprove any presumption
that may be relevant to the relationship" (emphasis added). Thus, under the third
interpretation, either the husband or the wife may disprove either the presumption
that he or she is a parent or the presumption that his or her spouse is a parent of
We have concluded that the third interpretation is the one which best provides a harmonious
consistency among the various aspects of Michigan statutory and case law relating
to this issue. First, the interpretation brings the statute and the S only to the
extent that, with respect to intestate succession, rebuttal of the presumption of
legitimacy rests solely with the husband and wife and is not possible after both their
Second, our last interpretation of subsections (2) and (3) of the statute permits
these to be read more harmoniously with subsection (4). It is well-settled ruled of
statutory construction by the courts that pertinent provisions of a statute be considered
together and that, if possible, all parts be construed so as to give them force and
effect, rather than negating any part by the construction of another part. Melia v. Appeal Bd. of Mich. Employ. Sec. Comm'n., 346 Mich. 544, 78 N.W.2d 273, 275 (1956); Madary v. Engel, 111 Mich. App. 517, 314 N.W.2d 676, 677 (1981). Subsections (2) and (3) of section
700.111 are read together to create a presumption of parentage in the respective spouses
of the marriage during which the child is born. Subsection (4) is then read to establish
paternity in a man other than the husband of the marriage during which the child is
born or conceived, if the presumption of subsection (2) is rebutted under subsection
(3): i.e., the child is "not the issue of that marriage." M.C.L. 700.111(4). We see
no other way in which subsections (3) and (4) can be read together harmoniously. If
subsection (4) allows another man to establish paternity on his own while the presumption
of the husband's paternity remains unrebutted, what becomes of the mandate contained
in subsection (3) that "(o)nly the person presumed to be the natural parent ... may
disprove (the) presumption"?
Under our interpretation of subsection (3) that both spouses are presumed parents
with the right to disprove any presumption, the wife's role in disproving the presumption
of the husband's paternity under subsection (3) is consistent with here role as mother
joining with the real natural father under subsection (4) to establish his paternity.
Under each of the ways in which a man other than the husband may establish his status
as the natural father, the natural mother must join in (e.g., joining him in acknowledging
the child in writing; joining him a written request for correction of the birth certificates;
and, in most cases we presume, implicitly joining him in facilitating his bearing
a mutually acknowledged parental relation with her child). Thus, subsection (4)'s
establishment of paternity in a man other than the husband is accomplished through
the cooperation of the mother who, as the wife under subsections (2) and (3), has
the power to disprove the presumption of her husband's paternity.
Judge R ~ in a letter to us dated November 4, 1982 agrees with this third interpretation
of the statute discussed, supra.
Reading section 700.111(3) in conjunction with S~, we have concluded that under Michigan
law either the husband or wife, while either remains alive, may disprove the presumption
of legitimacy of a child born or conceived during their marriage. Their proof must
be "clear and convincing", or such as to render belief in non-legitimacy necessary,
in order to overcome the presumption. Merely a preponderance of evidence probably
does not meet this burden of proof.
Applying these conclusions to the facts in this case, we have determined that the
available evidence provided by the mother of Victor, the wife of the number-holder
Willie, is sufficiently clear and convincing to rebut the presumption of Victor's
legitimacy. According to the facts known to the Social Security Administration and
related by the mother, Bobbie Jean, her husband, Willie, left her at least three and
a half years before the birth of Victor and returned to visit only three times, all
more than ten years after his birth. The mother has stated that the father of the
child was not her husband, but Edward G~. AFDC records consistently show G~ as the
This evidence, therefore, includes an admission against the interest of the child
claimant in this case by the mother that the number-holder is not the father. The
evidence of the mother also indicates non-access by the husband during any feasible
period of conception of the child. Reenforcing these key admissions are the objective
records of the AFDC program, the information for which was apparently supplied by
the mother with no apparent reason to deceive.
The Michigan appellate court in Wason v. Wason. 83 Mich. App. 364, 268 N.W.2d 405 (1978) perceived little hope that the presumption
of legitimacy could be sustained where the mother asserted in affidavit that her husband
had no access to be the father of the child during the period in question.
In Raleigh v. Watkins, 97 Mich. App. 258, 293 N.W.2d 789 (1980), the natural father of a child brought
suit to establish paternity in himself, rebutting the presumption of legitimacy of
the child and the presumption of paternity of the husband of the marriage during which
the child was conceived. The court recited the evidence submitted in support of his
claim to paternity and concluded that, under the S~ "clear and convincing" evidence
standard, the presumption of legitimacy was rebutted:
(1) An admission in (the mother) original sworn answer to plaintiff's complaint that
plaintiff was the child's father;
(2) An additional admission by (the mother) . . .that (she) became pregnant by the
plaintiff during the time she lived with him;
(3) (The mother's) statement at trial that she was taking birth control pills while
she was living with her husband;
(4) (The mother's) statement at trial that she utilized no contraceptives during the
time she lived with and had sexual relations with plaintiff;
(5)(The mother's) statement at trial that the father of her child could only be either
her husband or plaintiff;
(6) (The mother's) last date of intercourse with her former husband was between July
4 and July 12,1975. (She) used birth control pills until July 12,1975. (She) lived
with plaintiff from July 12, 1975 through August 15, 1975, and continued to have sexual
relations with him through October of 1975. The minor child. . . was born May 24,
1976. Therefore, the relevant dates indicate that in order for (her)husband to be
the father of her child the birth control pills would have to have been ineffective
and (she) would have to have been ineffective and (she) would have to have been approximately
four months pregnant at the time of her divorce in 1975. Yet, (she) stated she did
not know she was pregnant at the time of her divorce;
(7) (The mother's) judgment of divorce stated that no children were born of (her)
marriage to her husband. When (she) was given the opportunity to amend that judgment
to reflect the fact of having had a child by that marriage, the opportunity was declined;
(8) A blood test of plaintiff requested by (the mother) indicated that plaintiff's
blood type was compatible with the blood type of his alleged son . . .;
(9) No steps were ever taken by (the mother) to determine whether her former husband
could be the father of her child;
(10) Plaintiff testified that (the mother) told him that (the child) was his son;
(11) (The mother's) expert witness. . . testified that (she) told her that plaintiff.
. . "must be" (the child's) father.
The only evidence offered against the finding of paternity was (the mother's) denial
at trial based on her conviction that she will "never be 100% sure" that plaintiff
is the father of her son. We conclude that the trial court was correct in its judgment
finding that plaintiff rebutted the presumption of legitimacy and proved paternity
in himself by clear and convincing evidence. 293.N.W.2d at 790-791.
In the case of the child Victor, here, there appears to be no evidence whatsoever
that you have reported to us which supports the paternity of Willie. The claim as
to his paternity and the legitimacy of Victor apparently rest solely on the statutory
presumption in section 700.111 of the probate code. As stated, supra, we believe that
there is sufficient "clear and convincing" evidence to rebut the presumption of legitimacy
under S~ and that it comes from the mother, a "presumed parent" under section 700.111
who may disprove the presumption.