Short Answer
M~ is the biological mother of M2~, who has a pending claim for child insurance benefits
based upon the record of R~, M~’s husband. Both M~ and R~ report that M~2s’ biological
father is J~. J~ was also listed as the father on M2s’ birth certificate and M2~ shares
his last name. You have asked whether M2~ qualifies as R~’s child, as determined in
Illinois state law for intestate inheritance. For the reasons discussed below, we
believe that M2~n is not R~’s child, as that term is used for child insurance benefits
purposes.
Background
M~ is the biological mother of M2~, who was born on January XX, 2010. She filed for
child insurance benefits on behalf of M2~ on November XX, 2014. The Child benefits
claim was based upon the record of R~, M~’s husband. M~ has lived in Illinois with
R~ and M~ since before the application date. R~ and M~ have been married since December
XX, 1990. Both M~ and R~ report that M2~s’ biological father is J~. J~ was also listed
as the father on M2s’ birth certificate and both share the same last name. R~ has
not adopted M2~.
Discussion
An individual is eligible for benefits as an insured’s natural child if the individual
could inherit the insured’s personal property as his or her natural child under State
intestate inheritance laws. 20 C.F.R. § 404.355(a); 42 U.S.C. § 416(h)(2). The relevant
State is the State in which the insured is domiciled at the time of application, or
the State in which the insured was domiciled at the time of the insured’s death. 42
U.S.C. § 416(h)(2)(A). We apply the State law in effect at the time of our final decision
on the application for benefits. 20 C.F.R. § 404.355(b)(3). If a claimant does not
qualify as a child of the insured under that version of State law, we look at all
versions of State law in effect from the first month a claimant could be entitled
to benefits until the time of our final decision, applying the version of State law
most beneficial to a claimant. Id.
We look to Illinois law regarding intestate succession because there is no question
that R~, the insured, is domiciled in Illinois. Illinois establishes separate intestate
distribution for children born out of wedlock. 755 ILCS 5/2-2. A child born out of
wedlock is defined as “a child whose parents were not married to each other at the
time of [the child’s] birth.” People of the State of Illinois, ex rel. Raines v. Biggs, 481 N.E.2d 899, 901 (Ill. App. Ct. 1985); see also Sturdy v. Sturdy, 214 N.E. 2d 607, 609 (Ill. App. Ct. 1966). Based on the evidence discussed below,
we believe that M2~ was born out of wedlock, because evidence indicates that his biological
father and mother were not married to each other. A child born out of wedlock is heir
of his mother and of any maternal ancestor and of any person from whom his mother
might have inherited, if living. 755 ILCS 5/2-2(h). A child born out of wedlock can
also inherit from a father who has acknowledged paternity, or if the father has been
adjudged the father of the child born out of wedlock. 755 ILCS 5/2-2(h). In all other
cases, inheritance occurs when paternity is proven by clear and convincing evidence.
Id. Here, the operative question is whether R~’s paternity would be established by clear
and convincing evidence, because there is no indication that R~ was adjudged the father
or acknowledged the paternity of M2~.
In determining what counts as clear and convincing evidence of paternity, the Illinois
Parentage Act has established presumptions of paternity that are applicable. In re Estate of Poole, 799 N.E.2d 250, 257 (Ill. 2003). The Illinois Parentage Act applies in any civil
action when parentage is at issue, even if not brought under the Illinois Parentage
Act. 750 ILCS 45/9(a); In re Estate of Poole, 799 N.E.2d at 256 (applying definitions from the Illinois Parentage Act in a probate
context). This inquiry requires analyzing both the prior version of the Illinois Parentage
Act of 1984, which was in effect from 2007 until December 31, 2015 and the current
Illinois Parentage Act of 2015, which took effect on January 1, 2016. It is necessary
to look at both laws in order to determine which of the two laws, if any, is most
favorable to the current claim for child insurance benefits on R~’s record. 20 C.F.R.
§ 404.355(b)(3).
Illinois Parentage Act of 1984
Under the Illinois Parentage Act of 1984, Illinois provided that a man is presumed
to be the natural father of a child if he and the child’s natural mother are or have
been married to each other, even though the marriage is or could be declared invalid,
and the child is born or conceived during such marriage. 750 ILCS 45/5(a)(1). A man
is also presumed to be the natural father of a child if after the child’s birth, he
and the child’s natural mother married each other, even though the marriage is or
could be declared invalid, and he is named, with his written consent, as the child’s
father on the child’s birth certificate. 750 ILCS 45/5(a)(2). Alternatively, a man
is also presumed to be the natural father if he and the child’s natural mother have
signed an acknowledgement of paternity, or if the natural father is someone other
than one presumed to be the father, an acknowledgement of parentage and denial of
paternity in accordance with Section 12 of the Vital Records Act. 750 ILCS 45/5(a)(3),
(a)(4).
A presumption of paternity based upon either 750 ILCS 45/5(a)(1) or (a)(2) can be
rebutted only by clear and convincing evidence. 750 ILCS 45/5(b). A presumption under
750 ILCS 45/5(a)(3) or (a)(4) is conclusive unless the acknowledgement of parentage
is rescinded under rules described in 750 ILCS 45/5(b). “A rebuttable presumption
is one that ‘may be overcome by the introduction of contrary evidence’ (Black's Law
Dictionary 1224 (8th ed.2004)), while a conclusive presumption is one that ‘cannot
be overcome by any additional evidence or argument.’ Black's Law Dictionary 1223 (8th
ed.2004) (cited in People ex rel. Dept. of Public Aid v. Smith, 818 N.E.2d 1204, 1213 (Ill. 2004)). The reason for this distinction flows from the
different degree of involvement of the presumed father. “A man who voluntarily acknowledges
paternity signs an acknowledgment form advising him of his rights and specifically
informing him that he is accepting the responsibility of being a parent to the child,
that he has a right to genetic testing, and that he is waiving that right by signing
the voluntary acknowledgment. Thus, a presumed father who signs a voluntary acknowledgment
is in an entirely different position from a man who simply assumes he is the child's
father because of his marriage to the child's mother.” People ex rel. Dept. of Public Aid, 818 N.E.2d at 1213-1214.
Applying these principles, there was a rebuttable presumption that R~ is the father
of M2~ under the Illinois Parentage Act of 1984, because M2~ was born during R~’s
marriage to M~. However, we believe that J~ benefits from a conclusive presumption
that M2~ is his child.[1] J~ signed M~’s birth certificate. 410 ILCS 532/12 sets guidelines for issuing birth
certificates. If the mother was married at the time of conception or birth and the
presumed father (that is the mother’s husband) is not the biological father of the
child, the name of the biological father shall be entered on the child’s birth certificate
only if, in accordance with subsection (5), (i) the mother and the person to be named
as the father have signed an acknowledgement of parentage and (ii) the mother and
presumed father have signed a denial of paternity. 410 ILCS 532/12(4).
Because J~’s name was on the birth certificate we believe that J~ also signed an acknowledgement
of parentage and that M~ and R~ signed a denial of R~’s paternity. We recommend that
you request these documents to confirm that this occurred, as well as confirm that
the acknowledgement of parentage was never rescinded. Assuming that these documents
exist, they are sufficient to create a conclusive presumption of paternity of J~ under
750 ILCS 45/5(a)(4). We believe that the same evidence that establishes the conclusive
presumption of J~ is clear and convincing evidence that overcomes the rebuttable presumption
of R~’s paternity.[2] See In re Estate of Olenick, 562 N.E.2d 293, 299 (Ill. App. Ct. 1990) (holding that an appropriately authenticated
acknowledgement of parentage, under a prior amendment of the Illinois Parentage Act
of 1984, was clear and convincing evidence of paternity).
Further, although not determinative, there is additional evidence in statements from
R~ and M~ that M2~ is the child of J~, as well as the fact that M2~ bears the same
surname as J~. As such, clear and convincing evidence rebuts the presumption of paternity
of R~ and establishes a conclusive presumption that J~ is the father of M2~ under
Illinois law. Thus, M2~ cannot inherit as R~’s child under intestate succession.
Illinois Parentage Act of 2015
The Illinois Parentage Act of 2015 has been in effect since January 1, 2016. Under
this law, the parent-child relationship is established between a man and a child if
there is: (1) an unrebutted presumption of parentage of the child under Section 204,
(2) an effective voluntary acknowledgement of paternity by the man under Article 3
of the Act, unless rescinded or successfully challenged, (3) an adjudication of the
man’s parentage, (4) the man adopted the child, or (5) a valid gestational surrogacy
contract. 750 ILCS 46/201(b).
The law establishes a presumption of parentage in four circumstances. 750 ILCS 46/204.
Under the first circumstance, parentage is presumed where the person and the mother
of the child have entered into a marriage, civil union, or substantially similar legal
relationship, and the child is born to the mother during the marriage, civil union
or substantially similar relationship. 750 ILCS 46/204(a)(1). Presumptions may be
rebutted by clear and convincing evidence. 750 ILCS 46/206.
Under the voluntary acknowledgement of paternity described in 750 ILCS 46/201(b)(2),
the effect of an acknowledgement of paternity is equivalent to an adjudication of
the parentage of a child and confers upon the acknowledged father all of the rights
and duties of a parent. 750 ILCS 46/305(a). Also, a valid denial by a presumed parent
filed with the Department of Healthcare and Family Services, as provided by law, in
conjunction with a voluntary acknowledgement, is equivalent to an adjudication of
the nonparentage of the presumed parent and discharges the presumed parent from all
rights and duties of a parent. 750 ILCS 46/305(c). An acknowledgement of paternity
with a valid denial by a presumed parent overcomes any presumption that a marital
spouse is a parent, because this is equivalent to an adjudication. 750 ILCS 46/305(c).
Applying the Illinois Parentage Act of 2015, we believe that M2~ would not be found
to be R~’s child. R~ initially would be a presumed parent under 750 ILCS 46/204(a)(1).
However, assuming that J~ signed an acknowledgement of paternity of M2~ and that R~
denied parentage as discussed in the section above, this would be sufficient to overcome
the rebuttable presumption that R~ is the parent and establish a parent-child relationship
with J~ via 750 ILCS 46/201(b)(2), 46/305(a), (c). The Illinois Parentage Act of 2015
also clarifies that a child can have at most two parents. 750 ILCS 46/102. Thus, we
conclude J~ would be found to be the parent of M2~, not R~, and thus M2~ could not
inherit as the child of R~ for the purposes of intestate succession.
CONCLUSION
For the reasons discussed above, we believe that M2~ cannot receive child insurance
benefits on R~’s record, because M2~ cannot inherit as R~’s child under Illinois intestate
succession. We recommend that you request documentation that R~ signed a denial of
parentage and that J~ signed an acknowledgement of paternity, as discussed above.
Kathryn Caldwell
Acting Regional Chief Counsel, Region V
By: Ryan Shafer
Assistant Regional Counsel