You have requested our opinion as to whether the State of Georgia will look to the
laws of Louisiana to establish the entitlement of an illegitimate child.
The child, Kimberly M. W~, was born June 3, 1969, in Louisiana. At the time of the
child's birth, the wage earner was domiciled in Louisiana. The child's parents were
free to marry when the child was conceived and born and they never inter- married.
The child's mother and the wage earner's father and sister submitted statements certifying
that Kenneth B~ was the natural father of Kimberly and that he always orally acknowledged
that fact. There was no written acknowledgment of paternity. The wage earner died
on October 27, 1980, while domiciled in Georgia.
Under Louisiana law, an illegitimate child, such as Kimberly, who has been informally
acknowledged, is deemed to have inheritance rights and thus can be entitled to Social
Security survivor's benefits. Under Georgia law, an illegitimate child cannot inherit
from her father unless, essentially, there is a court order declaring the child to
be legitimate or there is a court order establishing the father of the illegitimate
child. Ga. Code Ann. § 113-904. Clearly, Kimberly does not have the status of a "child"
relative to the taking of the deceased number holder's intestate personal property
under Georgia law. The question has been raised as to whether Georgia will look to
the law of Louisiana under which the child can be entitled to benefits.
It is a general principle of law that the status or condition of a person as legitimate
or illegitimate is to be determined everywhere by the law of the domicile of origin,
that is, the law under which he or she was born, except, of course, insofar as that
status might be affected by acts subsequent to birth or by the validity of a marriage
contracted elsewhere. Restatement, Conflict of Laws §§ 137, 138; 87 A.L.R. 2d 1292,
1293; 10 Am Jur. 2d, Bastards § 9. Thus, in this claim, Kimberly's status as an illegitimate
child was determined by the law of her domicile at birth, Louisiana. There have been
no acts subsequent to her birth which are alleged to have legitimated her. Although
Louisiana extends inheritance rights to illegitimate children who have been informally
acknowledged, this in no way legitimates such a child. Kimberly's personal status
is that of an illegitimate child.
Title 42 U.S.C. § 416(h)(2)(A) provides, in pertinent part, that, "in determining
whether an applicant is the child ... of a fully ... insured individual..., the Secretary
shall apply such law as would be applied in determining the devolution of intestate
personal property ..., if such insured individual is dead, by the courts of the State
in which he was domiciled at the time of his death, .... " Kenneth B~, the number
holder, died domiciled in Georgia and under Georgia law, all personal property of
the deceased person passes and is administered according to the law of his domicile.
Squire v. Vazques, 183 S.E. 127 (Ga. 1935); Fenn v. Castelanna, 25 S.E.2d 796 (Ga. 1943). Thus, although Georgia would look to the law of the domicile
of birth, there being no intervening acts affecting status, to determine Kimberly's
personal status, Georgia would not apply Louisiana's laws of descent and distribution.
See also, Childress v. Secretary of Health and Human Services, F.2d , No. 80-1489 (6th Cir. 5/28/80).
Therefore, it is our opinion that Kimberly W~ /B~ is an illegitimate child and that,
as discussed above, she could not inherit from Kenneth B~ under the inheritance laws
of the state of Georgia, the state in which the number holder was domiciled at the
time of his death.