You asked for a review of state laws in our region, Iowa, Kansas, Missouri, and Nebraska,
regarding the granting of inheritance rights to a child of an unwed mother. Specifically,
you asked whether the states in our region recognize a parent-child relationship between
a child and an unwed natural mother at the time of birth for purposes of inheritance
rights in each of the states.
You provided an overview of the current Program Operations Manual System (POMS) sections
with regard to illegitimate children and the establishment of entitlement rights in
the various states of our region.
A child of an individual who receives disability benefits pursuant to the Social Security
Act is entitled to child's insurance benefits if he or she is the insured’s child
as defined in 42 U.S.C. § 416(e), has applied for such benefits, is unmarried, is
under the age of 18, and was dependent upon the insured at the time the application
for child’s benefits was filed. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Section 416(e) defines a “child” as (1)
the child or legally adopted child of an individual, (2) a stepchild under certain
circumstances, or (3) a person who is the grandchild or stepgrandchild under certain
circumstances. See 42 U.S.C. § 416(e). If the applicant for child’s benefits is the insured's child
as defined in section 416(e), he or she is also considered dependent upon the insured
for purposes of determining eligibility for child’s benefits. See 20 C.F.R. § 404.361(a).
The Social Security Act provides four mechanisms for determining “child” status:
1. The applicant could inherit the insured’s property as the insured’s child under
the law of intestate succession in the state where the insured was domiciled at the
time the child filed the application. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b);
2. The claimant is the insured's natural child and the insured went through a marriage
ceremony with the child’s other natural parent which resulted in a purported marriage
between them that, except for a procedural defect, would have been a valid marriage.
See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2);
3. Prior to the commencement of the insured’s period of disability, the insured acknowledged
in writing that the applicant was his natural child; the insured was decreed by a
court to be the father; or he was ordered by a court to contribute to the child's
support because the claimant was his child. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3); or
4. The insured is shown by evidence satisfactory to the Commissioner of Social Security
to be the child's father, and the insured was living with or contributing to the child's
support at the time the child filed the application for benefits. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).
If the evidence establishes any of the above factual scenarios, the applicant is considered
the insured’s child for purposes of entitlement to child’s benefits. See 42 U.S.C. § 416(h)(3).
First, the laws of each state in our region will be discussed below with regard to
establishment of a child-parent relationship between a child and his unwed mother
for purposes of intestate succession, and when that relationship is established. Second,
the proof needed to establish that parent-child relationship will be discussed.
As acknowledged in your memorandum, effective July 1, 1985, under Kansas law, the
parent-child relationship extends equally to every child and parent, regardless of
the marital status of the parents, and the parent-child relationship between a child
and the natural mother may be established by proof of her having given birth to the
child. See POMS GN 00306.495 (Kansas Intestacy Laws).
Under the Kansas Parentage Act, a parent and child relationship between the mother
and child may be established by “proof of her having given birth to the child or under
this act.” See KAN. STAT. ANN. § 38-1113. The remainder of the Kansas Parentage Act discusses issues
which establish the father-child relationship, and are accurately set forth in POMS
GN 00306.495. Thus, Kansas grants inheritance rights to a child from his unwed mother.
In Missouri, the child of a decedent may inherit the decedent’s intestate property.
See MO. ANN. STAT. § 474.010. As in Kansas, a parent and child relationship between a
child and the natural mother may be established by “proof of her having given birth
to the child, or under the provisions of sections 210.817 to 210.852.” See MO. ANN. STAT. § 210.819. Further, under MO. ANN. STAT § 474.060, a person born out
of wedlock is a child of the mother for purposes of determining intestate succession
unless the child is adopted by parents, of whom neither is the natural mother. Thus,
Missouri law grants inheritance rights to a child from his unwed mother.
POMS section GN 00306.540 (Missouri Intestacy Laws) should be updated to reflect that a parent-child relationship
between a child and the natural mother may be established by proof of her having given
birth to the child. The remainder of GN 00306.540 accurately sets forth the additional provisions of the Missouri Intestacy Laws with
regard to establishment of the parent-child relationship as set forth in MO. ANN.
STAT §§ 210.817 to 210.852.
Nebraska law does not contain such a clear provision regarding the establishment of
a parent-child relationship with the natural mother by proof of her having given birth
to the child. But, NEB. REV. STAT. § 30-2309 does specifically state that for establishing
a relationship for purposes of intestate succession, “a person born out of wedlock
is a child of the mother.” (except that an adopted person is the child of an adopting
parent and not of the natural parents except that an adoption of a child by the spouse
of a natural parent has no effect on the relationship between the child and that natural
parent). The statute then discusses ways in which that person is also a child of the
father which are set forth in GN
00306.550 (Nebraska Intestacy Laws).
The fact that the Nebraska statute discusses a variety of additional specific ways
to establish a father-child relationship including marriage, adjudication, and strict,
clear, and convincing proof, but simply states that “a person born out of wedlock
is a child of the mother” in order to establish relationship of parent-child for purposes
of intestate succession, indicates that Nebraska law, like Kansas and Missouri, recognizes
such a relationship by proof of her having giving birth. See NEB. REV. STAT. § 30-2309 (emphasis added). This is consistent with GN 00306.055 (Illegitimate Child with Inheritance Rights) which states that “[e]xcept as indicated
in GN 00306.055B.1.b., under the laws of all states: [a] child born out of wedlock has inheritance rights
with respect to his/her mother; and the [t]he mother has the status of parent as to
the child.” GN 00306.550 should be updated to reflect that for purposes of establishing a parent and child
relationship for intestate succession, a person born out of wedlock is the child of
Iowa law states that children born outside of marriage become legitimate by the subsequent
marriage of their parents. See IOWA CODE ANN. § 595.18. However, Iowa law also states that, “[u]nless the child
has been adopted, a biological child shall inherit from the child’s biological mother,
and she from the child.” IOWA CODE ANN. § 633.221. The law sets forth additional requirements
with regard to the father. Unless the child has been adopted, a biological child inherits
from the child’s biological father if the evidence providing paternity is available
during the father’s lifetime, or if the child has been recognized by the father as
his child; but the recognition must have been general and notorious, or in writing.
See IOWA CODE ANN. § 633.222.
The law in Iowa appears to state that the mother-child relationship for purposes of
inheritance is established at birth because the law does not require any additional
requirements as it does with regard to biological fathers. Thus, GN 00306.490 (Iowa Intestacy Laws) should be updated to reflect that a biological child shall
inherit from the child’s biological mother unless the child has been adopted.
Proof of Birth
While it is our opinion that all states in our region would recognize a biological
mother-child parental relationship at birth for purposes of inheritance, our research
has revealed very little with regard to what proof is need to establish the birth
itself in the rare absence of a birth certificate signed by the biological mother.
Most caselaw and statutory law addresses issues with regard to paternity and establishment
of the father-child parental relationship.
The United States Supreme Court has discussed the issue of the mother-child relationship
in the context of citizenship cases for out of wedlock children born abroad. In Tuan Anh Nguyen v. Immigration and Naturalization Service, 533 U.S. 53 (2001), the Court stated that in assuring that a biological parent-child
relationship exists, “[t]he mother’s relation is verifiable from the birth itself
and is documented by the birth certificate or hospital records and the witnesses to
the birth.” Id. at 54. The Supreme Court also addressed the issue in an earlier decision and stated
that, “[t]he child’s blood relationship to its birth mother is immediately obvious
and is typically established by hospital records and birth certificates, but the relationship
to the unmarried father may often be undisclosed and unrecovered in any contemporary
public record.” Miller v. Albright, 523 U.S. 420, 421 (1998). The Court further stated that, “[s]imilarly, the child’s
birth mother certainly knows of the child’s existence and typically will have immediate
In discussing what proof is need to establish heirship within the context of paternity,
states in our region require that heirship must be proven by clear and convincing
evidence. See In re Estate of Evjen v. Novotny, 448 N.W.2d 23, 24 (Iowa 1989); Abkes v. Apfel, 30 F. Supp.2d 1149, 1154 (N.D. Iowa 1998). Nebraska courts have described clear and
convincing evidence in intestate succession cases as “the amount of evidence which
produces in the trier of fact a firm belief of conviction about the existence of a
fact to be proved. See In re Estate of Brionez, 603 N.W.2d 688, 693 (Neb. Ct. App. 2000) (citing In re Interest of Joshua M. et al., 251 Neb. 614, 636, 558 N.W.2d 548, 563 (1997)). The Eighth Circuit has adopted the
Missouri Court of Appeals definition of “clear and convincing” proof as that “which
‘instantly tilt[s] the scales in the affirmative when weighed against evidence in
opposition,’ and clearly convinces the fact finder that the evidence is true.” Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992) (citing Sherrill for Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987) (quoting In re Michael O’Brien, 600 S.W.2d 695, 697 (Mo. Ct. App. 1980)). See also Jones v. Chater, 101 F.3d 509, 511 (7th Cir. 1996) (Missouri’s intestacy statute requires clear and
convincing evidence of paternity); State of Missouri v. Tuckness, 949 S.W.2d 651 (Mo. Ct. App. 1997) (“The clear and convincing standard refers to
evidence which instantly tilts the scales in the affirmative when weighed against
the evidence in opposition, and the fact finder’s mind is left with an abiding conviction
that the evidence is true.”) (citing In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo. Ct. App. 1995)). Other courts have defined clear, convincing,
and cogent evidence as that which admits no reasonable doubt. Eldridge, 980 F.2d at 500 (citations omitted).
In cases in which the mother-child parent relationship is not obvious from birth due
to the lack of a birth certificate or other unusual circumstances, other clear and
convincing evidence would need to be developed. The nature of such evidence is set
forth in the state statutes and Intestacy POMS of these states dealing with the determination
of parentage with regard to the father-child relationship. See GN 00306.490; GN 00306.540; GN 00306.550. MO. ANN. ST. § 210.848 even clarifies that insofar as possible, “the provisions
of sections 210.817 to 210.852 applicable to the father and child relationship apply
to the mother and child relationship.”).
Such evidence in Missouri might include marriage, attempted marriage, cohabitation,
acknowledgement, consent, court ordered obligation, or DNA testing. See MO STAT. ANN. §§ 210.822, 210.834, 210.841. See also GN 00306.540.
In Iowa, such evidence might include marriage or attempted marriage, affidavit, notorious
and general recognition, recognition in writing, or genetic testing See IOWA CODE ANN. §§ 252A.3A, 595.18, 600B.41, 633.222. See also GN 00306.490.
Such evidence in Nebraska might include marriage or attempted marriage, adjudication,
open cohabitation of the parents during the period of conception, acknowledgment,
or genetic testing. See NEB. REV. STAT. §§ 30-2309, 43-1415. GN
Likewise, while the Kansas Parentage Act generally discusses the determination of
parentage with regard to the father, the Act specifies that “[a]ny interested party
may bring an action to determine the existence or nonexistence of a mother and child
relationship (and) [i]nsofar as practicable, the provisions of this act applicable
to the father and child relationship apply.” KAN. STAT. ANN. § 38-1126. Thus, in the
rare instance that the mother was not the informant on the birth certificate or the
mother-child parental relationship was not obviously apparent, and it was necessary
to establish evidence of the mother-child relationship, the methods for determining
a father-child parental relationship would apply. Such evidence includes marriage,
attempted marriage, cohabitation, notorious or writing acknowledgment, consent, court
determination, or genetic testing. See KAN. STAT. ANN. §§ 38-1110 to 38-1131. See also GN 00306.495.
Based on our research, we believe that all the states in our region would recognize
the existence of a mother-child parental relationship between an unwed mother and
her biological child from birth for purposes of intestate succession. The POMS on
Intestacy Laws for the states in our region should be updated accordingly. In absence
of obvious evidence establishing the birth itself, other clear and convincing proof
would need to be developed. Such proof would include the evidence with regard to establishing
paternity as set forth in the statutes of each state and as summarized in the applicable
Kristi A. S~
Chief Counsel Region VII
Jeffrey J. L~
Assistant Regional Counsel