TN 42 (05-16)
PR 01105.016 Illinois
A. PR 16-086 Illinois State Law on Child Relationship.
DATE: February 22, 2016
The NH is domiciled in Illinois therefore, we look to Illinois law to determine the parent-child relation between the NH and Claimant. Both the Claimant’s mother and NH report that the NH is not the Claimant’s biological father. The biological father is listed on the Claimant’s birth certificate and both the Claimant and the biological father share the same last name.
The NH has not adopted the Claimant and there is no indication that the NH was adjudged the father or acknowledged the paternity of the Claimant. Under the Illinois Parentage Act of 1984 and the current Illinois Parentage Act of 2015, which took effect on January 1, 2016, we believe that the Claimant cannot receive child insurance benefits on the NH’s earnings record because the Claimant cannot inherit as the NH’s child under Illinois intestate succession.
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.
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~.
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. 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. 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.
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.
Acting Regional Chief Counsel, Region V
By: Ryan Shafer
Assistant Regional Counsel
J~, as the purported biological father, could bring an action to determine the existence of a father-child relationship, regardless of any presumption of paternity. 750 ILCS 45/7(a).
Moreover, the Probate Act directly provides for intestate inheritance from a father who signed an acknowledgement of paternity, as J~ appears to have done here. 755 ILCS 5/2-2(h). This probate provision would not have, by itself, blocked intestate inheritance from R~, but when operating in tandem with the Paternity Act, it would foreclose intestate inheritance.