You asked whether Florida would apply its own laws or the laws of Louisiana to determine
whether a claimant born in Louisiana is the child of a number holder domiciled in
Florida. You also asked whether the evidence gathered is sufficient to establish Claimant
is the child of Number Holder under the applicable state law.
For the reasons stated below, we believe a Florida court is more likely to apply its
own laws to determine whether Claimant could inherit from NH through intestacy. The
evidence presented here would appear to be sufficient under Florida law to establish
by clear and convincing evidence that Claimant is the child of Number Holder and eligible
to inherit from his estate.
Number Holder (NH), Willie L. G~, lived in Florida at the time of his death on February
2, 2000. Shanique B~'s (Claimant) mother, Darlene W~, married Darrell P. B~ on March
23, 1985. Although the exact date is unclear, Claimant's mother and Mr. B~ separated
in late 1987 or 1988. A Judgment of Divorce was entered by the 33rd Judicial District
Court in the Parish of Allen, Louisiana on May 3, 1990. Claimant was born in Louisiana
on May 22, 1990. Therefore, Claimant was conceived but not born during the course
of the marriage between Claimant's mother and Mr. B~. Claimant's birth certificate
lists her as the child of Darlene W~ and Darrell P. B~.
The Judgment of Divorce awards Claimant's mother and Mr. B~ joint custody of Claimant's
older sister, Dimonitrice B~. The Judgment of Divorce does not mention or provide
for Claimant, who was born seventeen days later. However, the 33rd Judicial District
subsequently ordered Mr. B~ to pay child support for both children on April 22, 1998.
After Claimant's older sister was emancipated, this order was amended on February
4, 2004 to require Mr. B~ to pay child support only for Claimant. There is no evidence
that Mr. B~ ever challenged the conclusion that he was Claimant's biological father.
On September 23, 2006, Claimant's grandmother, Hattie V. W~, filed a claim on Claimant's
behalf for Child's Insurance Benefits on NH's account. Claimant's mother and grandmother
submitted signed statements (SSA-795) that NH was cohabitating with Claimant's mother
in the home of Claimant's grandmother when Claimant was conceived and born. Claimant's
mother stated she was married but separated from Mr. B~ at this time. Claimant's mother
contends that NH was present at the hospital when Claimant was born and continued
to live in the same home for another year and a half. NH and Claimant's mother purportedly
ended their relationship when NH moved to Florida. There is no evidence NH ever acknowledged
paternity of Claimant in writing. NH's obituary does not list Claimant as one of his
eight surviving children.
NH's mother and father, Willie and Anna G~, both submitted signed statements indicating
NH told them he was Claimant's father. NH's mother and father also confirmed NH was
living with Claimant's mother and grandmother at the time of Claimant's conception
and birth. NH's mother stated NH left Louisiana because he was not ready to get married.
Entitlement to Child's Insurance Benefits - In General
To qualify for child's benefits on the record of an individual entitled to disability
benefits, a claimant must be that individual's child. See § 202(d) of the Social Security Act (Act), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1)
(2006). A "child" for purposes of this regulation means an individual who is related
to the insured person as a natural child, legally adopted child, stepchild, grandchild,
stepgrandchild, or equitably adopted child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2006). Only the provisions
relating to a natural child could apply to this claim.
A claimant can qualify as the insured person's natural child if, among other methods,
the claimant could inherit the insured's personal property as his or her child under
the intestacy laws of the state where the insured had his permanent home when he died.
See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b) (2006). Because NH was domiciled in Florida,
the question is whether a Florida court would consider Claimant to be NH's child for
purposes of intestate succession. Since Claimant was born in resides in Louisiana,
it is also necessary to determine whether a Florida court would use its own laws or
the laws of Louisiana in making this determination.
Florida's Choice of Law to Determine Paternity for an Intestate Estate
As a general matter, Florida will apply the law of the state in which real or personal
property is located when questions arise as to the transfer, alienation and descent
of that property. See In re Estate of Nicole-Santos, 648 So. 2d 277, 280 (Fla. Dist. Ct. App. 1995). For instance, the validity of a
will is to be determined in accordance with the laws of the state where the property
in question is located. See In re Estate of Swanson, 397 So. 2d 465, 466 (Fla. Dist. Ct. App. 1981). NH was a resident of Florida for
approximately eight years when he died and there is no reason to believe that he owned
property in any other state.
Although we have located one case that suggests Florida might look to another state's
law, we do not believe that it is applicable to the facts of the claim at hand. It
is clear that Florida's intestacy laws apply to the inheritance of property located
in Florida. See In re Estate of Salathe, 703 So. 2d 1167, 1169 (Fl. Dist. Ct. App. 1997). However, there was a question as
to the status of the marriage between the decedent and her estranged husband, who
was seeking a share of the intestate estate. Id. Although the property in question was located in Florida, the court determined that
it was appropriate to apply German law to determine the status of the relationship
between the decedent and her husband because both parties resided in Germany during
the entire marriage, signed a separation agreement under German law, and the decedent
continued to live there with the couple's minor child until her death. Id.
This case is different from Salathe because NH left Louisiana for Florida not long after Claimant's birth and was a resident
of Florida at the time of his death. In addition, there have been no legal proceedings
or written agreements involving NH in Louisiana. Although the husband in Salathe moved to Florida after executing a settlement agreement with the decedent, the decedent's
connection to Germany weighed against the application of Florida law. See In re Estate of Salathe, 703 So. 2d at 1169. We recognize that Salathe could form the basis of an argument that a Florida court should apply Louisiana law
to determine the legal relationship between Claimant and NH. However, given the factual
differences between these two cases, we feel that it is more likely a Florida court
would apply its own laws to determine whether Claimant could inherit from NH's intestate
Florida Law Applied to this Claim
Florida law provides that "[a]ny part of the estate of a decedent not effectively
disposed of by will passes to the decedent's heirs" who are "those persons, including
the surviving spouse, who are entitled under the statutes of intestate succession
to the property of the decedent." FLA. STAT. ANN. §§ 731.201(18), 732.101 (2006).
Any part of an estate that does not pass to a surviving spouse passes to the lineal
descendants of the decedent. See FLA. STAT. ANN. § 732.103 (2006).
Under Florida law, a person born out of wedlock may establish that she is the lineal
descendant of a man for purposes of intestate succession if (a) the natural parents
participated in a marriage ceremony before or after the birth of the person born out
of wedlock, even if the attempted marriage is void; (b) the paternity of the father
is established by an adjudication before or after the death of the father; (c) the
paternity of the father is acknowledged in writing by the father. See FLA. STAT. ANN. § 732.108(2) (2006). Claimant's mother and NH never participated
in a marriage ceremony and NH never acknowledged paternity of Claimant in writing.
However, under subsection (b) of this statute, Claimant may attempt to establish NH's
paternity for the first time in a probate proceeding to determine intestate succession.
See Fagan v. Cramer, 877 So. 2d 945, 946 (Fl. Dist. Ct. App. 2004). The putative heir must present evidence
that is "clear, strong and unequivocal, that is, the person born out of wedlock should
prove paternity by clear and convincing evidence." Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fl. Dist. Ct. App. 1991). If the putative heir is born in wedlock
to a mother married to another man, the heir must also present "clear and satisfactory"
evidence to overcome the presumption of legitimacy. In re Estate of Broxton v. Johnson, 425 So. 2d 23, 25 (Fl. Dist. Ct. App. 1982).
Florida presumes that a child who was conceived during but born after the termination
of a marriage is legitimate and a product of that marriage. See GN 00306.455; Smith v. Wise, 234 So. 2d 145, 146 (Fl. Dist. Ct. App. 1970). However, this presumption is rebutable
and there is no legal impediment to prevent a mother from testifying the child in
question is the product of a man other than her husband. See Williams v. Estate of Long, 338 So. 2d 563, 566 (Fl. Dist. Ct. App. 1976). A mother may testify as to non-access
by the man to whom she was married at the time of conception. See In re Estate of Jerrido, 339 So. 2d 237, 239 (Fl. Dist. Ct. App. 1976). In Jerrido, three children brought an action to establish decedent as their biological father
despite the fact their mother was married to another man. Id. The court affirmed a decision by the trial court that allowed the mother to testify
that her husband did not have access to her during the years that the children were
conceived and born. Id. The court also affirmed the trial court's ultimate conclusion that the children were
the offspring of the decedent and not the mother's husband. Id., at 239-240. Therefore, we believe that a Florida court will allow Claimant's mother
to testify that she was separated from her husband and cohabitating with NH at the
time of Claimant's conception and birth. SSA has obtained corroborating testimony
from the relatives of both Claimant's mother and NH. Thus, the evidence appears sufficient
to establish non-access of Mr. B~ so as to rebut the presumption of paternity.
The words "out of wedlock" in FLA. STAT. ANN. § 732.108(2) do not preclude the use
of this statute by an individual born to a mother who was married at the point of
conception or birth. See In re Estate of Robertson, 520 So. 2d 99, 101-102 (Fl. Dist. Ct. App. 1988). Under § 732.108(2)(b), the child
must produce evidence that is "clear, strong and unequivocal." See Robertson, 520 So. 2d at 101. In Robertson, the court concluded that the putative heir met this burden by producing evidence
that the decedent acknowledged paternity both orally and in writing on numerous occasions,
resided with the child and the natural mother as a family unit prior to his death,
contributed to their support and expressed a desire that his daughter inherit from
him. See Robertson, 520 So. 2d at 100.
In this case, it is undisputed that Claimant's mother and Mr. B~ separated in 1988
and Claimant's mother was cohabitating with NH at the time of Claimant's conception
and birth. NH appears to have acknowledged paternity orally to both of his parents.
Claimant's mother and grandmother contend NH lived with them for another year and
a half after Claimant's birth before leaving Louisiana and provided support during
that time. This case is different from Robertson because there is no written acknowledgment of paternity from NH. However, given the
presence of the other factors considered in Robertson, we believe a Florida court is more likely to find this evidence sufficient to establish
Claimant as child of NH and entitled to inherit from his estate.
Although Claimant was not mentioned in the Judgment of Divorce, subsequent orders
for child support in Louisiana presume that Mr. B~ was Claimant's father. Under Florida
law, a child is not bound by a paternity determination in a divorce or child support
proceeding because the child is not a party to that proceeding and may pursue an action
for a share of the intestate estate of a man other than the one married to her mother
at the time of conception or birth. See Robertson 520 So. 2d at 102. Similarly, SSA is not required to accept a paternity determination
in such circumstances because it also was not a party to the state court action, especially
when no opposing interests were presented in the case. See Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 322 (11th Cir. 1989). In Baker, the Eleventh Circuit concluded that an Administrative Law Judge was not bound by
a finding from a Florida trial court that a third party was the biological father
of a child born during the marriage of the mother to another man who admitted to paternity
and consented to child support obligations. See Baker, 880 F.2d at 322 (holding that the ALJ was entitled to rely upon his own assessment
of the evidence to determine whether a Florida court in a contested case would hold
that the presumption of legitimacy had been sufficiently overcome). To the extent
the Louisiana child support orders can be interpreted as an adjudication of paternity,
neither Claimant nor SSA are bound by such a finding.
We believe that Florida would apply its own laws to determine whether Claimant could
inherent from NH's intestate estate. Under Florida law, the evidence presented is
sufficient to rebut the presumption that Mr. B~ is Claimant's father and establish
that she is the child of NH. As such, you would be justified in concluding that Claimant
could inherent from NH through intestacy under Florida law.
Mary A. S~
Regional Chief Counsel
Christopher G. H~
Assistant Regional Counsel