PR 01110.017 Indiana

A. PR 00-165 Inheritance Rights of an Illegitimate Child Under Indiana Law When Child Was Born in Michigan—~, Ricky D. B~

1. SYLLABUS

The two child claimants were born in Michigan, where the NH was domiciled. The NH later died domiciled in Indiana. Because the "mutual acknowledgment" provision of Michigan law renders the children "legitimate" in Michigan, Indiana courts would apply this standard in determining whether the children could inherit personal property from the NH. (One of the children resides in Tennessee, but that State's law would not be applicable.)

2. OPINION

You have asked whether Shantelle L. M~ and Ashley H. M~ (claimants) are entitled to benefits as the children of the deceased wage earner, Rickey D. B~. Shantelle was born on October 19, 1980 in Detroit, Michigan and currently resides in Tennessee; Ashley was born on February 5, 1987 in Detroit, Michigan and currently resides in Michigan. The wage earner was domiciled in Detroit, Michigan at the time of both births, moved to Indiana in June 1994, and was found dead on May 3, 1995. Specifically, you have asked whether Indiana courts would apply Michigan law or Tennessee law regarding the inheritance rights of these children. For the reasons stated below, we believe that, because under Michigan law, the children would be legitimated, Indiana would apply Michigan, but not Tennessee, law. Accordingly, we conclude that if either claimant meets the relevant requirement under Michigan law, she is entitled to be benefits under the "state law" test of Section 216(h)(2)(A) of the Social Security Act.

FACTS

The relevant facts may be briefly summarized: Shantelle M~ was born in 1980 in Detroit, Michigan. Statements were received from Ricky's mother, Rosa L. B~, and Ricky's sister, Ernestine G~, that show Rickey had acknowledged Shantelle verbally, and by his actions, to be his child. Roas L. B~ considered Shantelle to be her granddaughter. A statement was taken from Shantelle acknowledging that Ricky was her father and that they maintained a father-daughter relationship. In addition, Angela M~ had filed a paternity suit in the Michigan. As part of the paternity suit, the parties were ordered to undergo blood tests. The blood tests, performed by LaRoche Biomedical Laboratories of Burlington, North Carolina, were started on January 12, 1994, and appropriate chain-of-custody documents were signed. The results of the blood tests demonstrated a 99.99 per cent probability that Ricky B~ was the father of Shantelle. In a letter from the court, The paternity case was dropped with Angela M~'s permission on June 6, 1995, because Ricky B~ was dead.

Ashley M~ was born in February 1987 in Detroit, Michigan. Helen C~, mother of Ashley, stated that she lived with Ricky B~ until 1991. Rosa L. B~ stated that Rickey acknowledged Ashley verbally and through his actions. Rosa L. B~ acknowledged Ashley as her grandchild. Ashley M~ also acknowledged Ricky as her father and indicated that they maintained a father-child relationship.

Ricky was domiciled in Michigan until June 1994 when he moved to Indiana to look for work. He apparently did not maintain his own residence but lived with a cousin. He disappeared in March 1995, about eight months after he left Michigan, and was found dead, of multiple gunshot wounds, in May 1995.

DISCUSSION

Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A), provides that a child qualifies for benefits if he or she would be entitled to inherit personal property as a child of the wage earner under the intestate succession laws of the state in which the wage earner died domiciled./ Neither claimant meets the conditions for intestate succession under Indiana law because their parents did not intermarry and because they failed to establish paternity of the child by law in a cause of action that was filed in accordance with IC 31-6-6.1-6 during the father's lifetime or within five months after the father's death.

Ind. Code. Ann. xx 29-1-2-7(b) (West 1993)./

Here, however, although the wage earner died in Indiana, the state of his domicile when the children were born was Michigan. Where, as here, there has been a change in domicile, the state of domicile at the time of the wage earner's death, may look to the legitimation law of the state of domicile when the child was born or where the legitimating act took place. See POMS GN 00306.005.

In this case, Michigan was the state of the wage earner's domicile when both claimants were born. Indiana, then, may look to Michigan law.

In contrast to Indiana's statute, the applicable Michigan statute is a legitimating statute in that if a child born out of wedlock satisfies one of its provisions, the Michigan statute accords the child the right of inheritance as a legitimate child. Mich. Comp. Laws Ann. §700.111(1) (1996).

Section 700.111 provides in relevant part as follows: Sec.111. (1) For all purposes of intestate succession, a child is the heir of each of his or her natural parents notwithstanding the relationship between the parents . .

(4) If a child is born out of wedlock or if a child is born or conceived during a marriage but is not the issue of that marriage, a man is considered to be the natural father of that child for all purposes of intestate succession if any of the following occurs:

(c) the man and the child have borne a mutually acknowledged relationship of parent and child that began before the child became age 18 and continued until terminated by the death of either.

Mich. Comp. Laws Ann. § 700.111(4)(c) (1996); see also POMS GN 00306.055 (distinguishing between State law entries in GN 00306.080 which legitimate a child and state law entries in GN 00306.080 which confer inheritance rights but do not legitimate the child; in the case of the latter, provisions of state statutes that confer inheritance rights but do not legitimate the child are preceded by an "I" in the State law entries in GN 00306.080); POMS GN 00306.080 (compare "Indiana" entry to "Michigan" entry) (copy attached).

While the wage earner and each claimant were domiciled in Michigan, they maintained a mutually acknowledged relationship of parent and child which was established before they were 18, and was terminated with the death of the wage earner. Thus it appears that both claimants have satisfactorily shown that they were the children of Ricky B~ on the grounds that they maintained a mutually acknowledged relationship of parent and child. Under Michigan law, then, they would be treated as legitimate for all purposes of intestate succession.

Because Shantelle and Ashley would be legitimated under Michigan law, they would therefore be treated as "legitimate" children for purposes of inheritance under Indiana Law. We addressed a similar issue in Michael S~, ~ RA V (D~) to Director, IPB, 8/15/84, where we stated that under general conflict of laws principles, so long as the law of the decedent's domicile does not absolutely exclude from inheritance those born out of wedlock, the status of the child as "legitimate" for purposes of inheritance as a "legitimate" child in the domiciliary state (whether the child is born legitimate or subsequently legitimated by force of law) is governed by the personal law of the child rather than the law of the decedent's domicile. The status of the child as legitimate will thus be determined by the law of any state that achieves legitimation, so long as that state has a reasonable connection to the facts. For example, a child will usually be held "legitimate" if such is his status under the law of the state where either the parent or child was domiciled when the parent performed a legitimating act (such as acknowledgment).

In that case, the child's status as "legitimate" will ordinarily be recognized by the decedent's domicile and the child will be able to inherit under the latter state's laws as a legitimate child. See also S~ , at 4.

We think that the same result follows in this case. As discussed, Michigan is among those states with statutes that legitimate a child born out of wedlock and accord to her the right of inheritance as a legitimate child in the domiciliary state. Because the "mutually acknowledged relationship" standard of Michigan law renders a child "legitimate" in Michigan, Indiana courts would apply this standard in determining whether Shantelle M~ and Ashley M~ could inherit personal property from the wage earner.

CONCLUSION

Because Shantelle and Ashley are legitimated under Michigan law, we conclude that they are entitled to benefits under the "state law" test of Section 216(h)(2)(A) of the Act.

B. PR 95-003 Inheritance Rights of an Illegitimate Child Under Indiana Law When Child Was Born in Michigan—~, Ricky D. B~

DATE: December 9, 1996

1. SYLLABUS

Under the general conflict of laws principles, as long as the law of the decedent's domicile does not absolutely exclude from inheritance those born out of wedlock, the status of the child as legitimate for purposes of inheritance in the domiciliary State will be determined by the law of any State that achieves legitimation and has a reasonable connection to the facts. Therefore, an out of wedlock child who cannot inherit under Indiana's intestacy law but, is not absolutely barred from inheriting, would be treated as legitimate for inheritance purposes because the child is legitimated under Michigan law; the child's place of birth and the NH's domiciliary State at the time of birth. If Michigan merely conferred inheritance rights upon the out of wedlock child, Indiana would not apply Michigan law.

2. OPINION

You have asked whether Shantelle L. M~ and Ashley H. M~ (claimants) are entitled to benefits as the children of the deceased wage earner, Rickey D. B~. Shantelle was born on October 19, 1980 in Detroit, Michigan and currently resides in Tennessee; Ashley was born on February 5, 1987 in Detroit, Michigan and currently resides in Michigan. The wage earner was domiciled in Detroit, Michigan at the time of both births, moved to Indiana in June 1994, and was found dead on May 3, 1995. Specifically, you have asked whether Indiana courts would apply its own law, or would apply Michigan or Tennessee law regarding the inheritance rights of these children. For the reasons stated below, we believe that, because under Michigan law, the children would be legitimated, Indiana would apply Michigan, law. Accordingly, we conclude that if either claimant meets the relevant requirement under Michigan law, she is entitled to be benefits under the "state law" test of Section 216(h)(2)(A) of the Social Security Act.

FACTS

The relevant facts may be briefly summarized: Shantelle M~ was born in 1980 in Detroit, Michigan. Statements were received from Ricky's mother, Rosa L. B~, and Ricky's sister, Ernestine G~, that show Rickey had acknowledged Shantetle verbally, and by his actions, to be his child. Rosa L. B~ considered Shantelle to be her granddaughter. A statement was taken from Shantelle acknowledging that Ricky was her father and that they maintained a father-daughter relationship. In addition, Angela M~ had filed a paternity suit in the Michigan. As part of the paternity suit, the parties were ordered to undergo blood tests. The blood tests, performed by LaRoche Biomedical Laboratories of Burlington, North Carolina, were started on January 12, 1994, and appropriate chain-of-custody documents were signed. The results of the blood tests demonstrated a 99.99 per cent probability that Ricky B~ was the father of Shantelle. In a letter from the office of the friend of the court, it was stated that the recommendation would have been that the court name Rickey B~ as the father of Shantelle. The paternity case was dropped with Angela M~'s permission on June 6, 1995, because of the death of Ricky B~ Ashley M~ was born in February 1987 in Detroit, Michigan. Helen C~, mother of Ashley, stated that she lived with Ricky B~ until 1991.1 Rosa L. B~ stated that Rickey acknowledged Ashley verbally and through his actions. Rosa L. B~ acknowledged Ashley as her grandchild. Ashley M~ also acknowledged Ricky as her father and indicated that they maintained a father-child relationship.

Ricky was domiciled in Michigan until June 1994 when he moved to Indiana to look for work. He apparently did not maintain his own residence, but lived with a cousin. He disappeared in March 1995, about eight months after he left Michigan, and was found dead of multiple gunshot wounds in May 1995. He was buried in Michigan.

DISCUSSION

Section 216(h) (2) (A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A), provides that a child qualifies for benefits if he or she would be entitled to inherit personal property as a child of the wage earner under the intestate succession laws of the state in which the wage earner died domiciled. 2 Neither claimant meets the conditions for intestate succession under Indiana law because their parents did not intermarry and because they failed to establish paternity of the child by law in a cause of action that was filed in accordance with IC 31-6-6.1-6 during the father's lifetime or within five months after the father's death. Ind. Code. Ann. §§ 29-1-2-7(b) (West 1996). 3

Here, however, although the wage earner died in Indiana, the state of his domicile when the children were born was Michigan. Where, as here, there has been a change in domicile, the state of domicile at the time of the wage earner's death, may look to the legitimization law of the state of domicile when the child was born or where the legitimating act took place. See POMS GN 00306.005. In this case, Michigan was the state of the wage earner's domicile when both claimants were born. Indiana, then, may look to Michigan law.

In contrast to Indiana's statute, the applicable Michigan statute is a legitimating statute in that if a child born out of wedlock satisfies one of its provisions, the Michigan statute accords the child the right of inheritance as a legitimate child. Mich. Comp. Laws Ann. §700.111(1) (1996).

Section 700.111 provides in relevant part as follows:

Sec.111. (1) For all purposes of intestate succession, a child is the heir of each of his or her natural parents notwithstanding the relationship between the parents (4) If a child is born out of wedlock or if a child is born or conceived during a marriage but is not the issue of that marriage, a man is considered to be the natural father of that child for all purposes of intestate succession if any of the following occurs:

(c) the man and the child have borne a mutually acknowledged relationship of parent and child that began before the child became age 18 and continued until terminated by the death of either.

Mich. Comp. Laws Ann. § 700.111(4) (c) (1996); see also POMS GN 00306.055 (distinguishing between State law entries in GN 00306.080 which legitimate a child and state law entries in GN 00306.080 which confer inheritance rights but do not legitimate the child; in the case of the latter, provisions of state statutes that confer inheritance rights but do not legitimate the child are preceded by an "I" in the State law entries in GN 00306.080); POMS GN 00306.080 (compare "Indiana" entry to "Michigan" entry) (copy attached).

While the wage earner and each claimant were domiciled in Michigan, they maintained a mutually acknowledged relationship of parent and child which was established before they were 18, and was terminated with the death of the wage earner. Thus it appears that both claimants have satisfactorily shown that they were the children of Ricky B~ on the grounds that they maintained a mutually acknowledged relationship of parent and child. Accordingly, under Michigan law, they would be treated as legitimate for all purposes of intestate succession.

Because Shantelle and Ashley would be legitimated under Michigan law, they would therefore be treated as "legitimate" children for purposes of inheritance under Indiana Law. We addressed a similar issue in Michael S~, ~, RA V (D~) to Director, IPB, 8/15/84, where we stated that under general conflict of laws principles, /so long as the law of the decedent's domicile does not absolutely exclude from inheritance those born out of wedlock, the status of the child as "legitimate" for purposes of inheritance as a "legitimate" child in the domiciliary state (whether the child is born legitimate or subsequently legitimated by force of law) is governed by the personal law of the child rather than the law of the decedent's domicile. The status of the child as legitimate will thus be determined by the law of any state that achieves legitimization, so long as that state has a reasonable connection to the facts. For example, a child will usually be held "legitimate" if such is his status under the law of the state where either the parent or child was domiciled when the parent performed a legitimating act (such as acknowledgment). In that case, the child's status as "legitimate" will ordinarily be recognized by the decedent's domicile and the child will be able to inherit under the latter state's laws as a legitimate child. See also Simpson, at 4. 4

We think that the same result follows in this case. As discussed, Michigan is among those states with statutes that legitimate a child born out of wedlock and accord to her the right of inheritance as a legitimate child in the domiciliary state. Because the "mutually acknowledged relationship" standard of Michigan law renders a child "legitimate" in Michigan, Indiana courts would apply this standard in determining whether Shantelle M~ and Ashley M~ could inherit personal property from the wage earner.

CONCLUSION

Because Shantelle and Ashley are legitimated under Michigan law, we conclude that they are entitled to benefits under the "state law" test of Section 216(h) (2) (A) of the Act.

C. PR 84-036 Inheritance Rights of Illegitimate Child Under Indiana Law When Child Was Bern In Tennessee; Michael J. S~, ~, DWE; Anthony D. S~, Claimant

DATE: August 15, 1984

1. SYLLABUS

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS — INDIANA

Indiana does not apply for purposes of intestate succession to personal property of persons who die domiciled in the State, the laws of other States that confer inheritance rights on illegitimate children without legitimating them. (S~, Michael J., ~—RAV (D~), to ARC, Programs, O8/15/84.)

2. OPINION

This responds to your request for assistance in determining whether Anthony D. S~ is entitled to benefits as the child of the deceased wage earner, Michael J. S~ . The claimant was born in Tennessee in 1968, and the wage earner died domiciled in Indiana in 1981. Specifically, you have asked whether Indiana courts would apply Tennessee law regarding the inheritance rights of illegitimate children. We answer this question in the negative, and accordingly conclude that the claimant is not entitled to benefits under the "state law" test of Section 216(h)(2)(A) of the Social Security Act. However, we think that the claimant may, after further development, be entitled to benefits under the "written acknowledgement" test of Section 216(h)(3)(C)(i)(I) of the Act.

Facts

The relevant facts may be briefly summarized: Anthony D. S~ was born on November 24, 1968 in Kingsport, Tennessee. A "hospital birth work- sheet" containing information furnished by Connie H~ "S~ ", the child's mother, listed the wage earner as Connie's husband and Anthony's father. The worksheet indicated that Connie and the wage earner had married on January 2, 1968 in Ohio (no city specified). The child's birth certificate, apparently based on the worksheet, listed the child as "Anthony D. SIX, lIB," the mother as "Connie H~ S~," and the father as "James M. S~ . 5 The hospital admission record for "Mrs. Connie S~" lists the diagnosis as "pregnancy" and lists "Mr. M. Sin," the patient's "husband," as the person responsible for payment of hospital bills and the person to contact in case of an emergency. This record also indicates that the patient's "husband" furnished the information contained in the record. The hospital admission record for "Baby Boy (Connie) lists "Michael S~," the patient's "father," as the person responsible for the hospital account. The listed diagnosis is "newborn." This latter record does not identify the person furnishing the information. The claims folder contains no information concerning the actual payment of the hospital bills.

Judy S~ , Connie H~ 's sister, states that Connie and the wage earner were not married but began living together in Kingsport, Tennessee at least six months prior to Anthony's birth. Both Connie and the wage earner were born in Indiana. Several other relatives, including the wage earner's mother, the wage earner's brother, and Connie's brother, indicate that Connie and the wage earner lived together in Kingsport beginning in 1966 or 1967. According to Judy S~, because Connie had a serious heart condition and could not take care of the child, she and Anthony went to live with Judy in Richmond, Indiana about a month after Anthony's birth. Connie died on January 21, 1972, and Anthony has continued to live with Judy S~ in Richmond

The wage earner married Donna W~ in Richmond, Indiana on June 17, 1969. The wage earner lived with Donna in Richmond until his death on November 11, 1981 from an accidentally self-inflicted gunshot wound. The record indicates that Donna has three children - James M. S~ (born April 17, 1967); Tina M. S~ (born May 11, 1969); and Angel R. S~ (born June 19, 1971). The wage earner acknowledged the latter two children on his 1979 application for disability benefits. 6 The wage earner did not list James M. S~ on his application, not did Donna S~ apply for child's benefits on behalf of James M. S~ The wage earner did not list Anthony S~ on the application. However, several individuals, including Donna S~ , Judy S~, the wage earner's mother and brother, and Connie H~ 's brother, all state that the wage earner verbally acknowledged Anthony as his child. Donna S~ also states that the wage earner rarely saw Anthony because Connie's family would not let him. Donna also indicates that the wage earner did not list Anthony on his tax returns or "anything else" because he did not have custody of the child.

Judy S~ applied for benefits on behalf of Anthony on August 3, 1982. Judy explained that she had not previously applied for benefits because she did not have the wage earner's social security number. The claim was initially denied but was later reopened under the Boatman order. Judy has supplied a photograph of an infant, identified as Anthony, on the back of which is written "Tony S~, My Son." This statement is not signed, although the handwriting appears to match the wage earner's writing from the file.

DISCUSSION

Section 216(h){2)(A) of the Social Security Act provides that a child qualifies for benefits if he or she would be entitled to inherit personal property as a child of the wage earner under the intestate succession laws of the state in which the wage earner died domiciled. Indiana law provides that an illegitimate child may inherit from his father if (1) the parents of the child intermarry and the putative father acknowledges the child or {2) the paternity of the child is established by law (in a judicial proceeding) during the father's lifetime. Ind. Code Ann. §29-1-2-7(b) (West 1979) —7 ; POMS GN 00306.135 ("Indiana" entry). See also Burnett v. Camden, 254 N.E.2d 199 (Ind.), reheating denied 255 N.E.2d 650—-(Ind.), appeal dismissed and cert. denied 399 U.S. 901 (1970). Neither of these conditions are met here. The issuance of the Tennessee birth certificate listing the wage earner as the father does not satisfy the second condition stated above. Leaving aside the fact that the wage earner was listed on the birth certificate based on false information supplied by Connie H~ that the parties were "married," the Indiana Supreme Court has held that issuance of a birth certificate does not constitute the judicial determination of paternity required by the statute. Burnett v. Camden, 254 N.E.2d at 201.

Under the law of Tennessee, where the claimant was born, an illegitimate child may inherit from his father if: (1) the child is declared legitimate in a court decree; (2) the parents intermarry and the father acknowledges the child; (3) paternity is established in a judicial proceeding during the father's lifetime; (4) effective March 30, 1978, the child's parents participate in a marriage ceremony before or after the birth of the child even though the attempted marriage is void; or {5) effective March 30, 1978, paternity is established after the father's death by "clear and convincing proof." Tenn. Code Ann. §§31-206, 36-234, 36-302, 36-303, and 36-307. See also Allen v. Harvey, 568 S.W.2d 829 (Tenn. 1978); Pickett v. Brown, 638 S.W.2d 369 (Tenn. 1982); Childtess v. Secretary, 679'F.2d 623 {6th Cir. 1982); POMS GN 00306.135 ("Tennessee" entry). Only under the first two methods is the illegitimate child actually legitimated. The latter three methods, including the posthumous establishment of paternity by "clear and convincing proof" (the only one of the above conditions that the claimant may arguably meet), merely confer inheritance rights upon the illegitimate child. Allen v. Harvey, supra; Childtess v. Secretary, supra.

We assume without deciding that the claimant meets the "clear and convincing proof" standard under Tennessee law. However, we conclude that Indiana courts would not apply this standard in determining whether Anthony could inherit personal property from the wage earner. We addressed a similar issue in Alfred D~ , ~, RA V (D~) to Director, IPBV, 6/27/83, where we considered whether Illinois (where the wage earner died domiciled) would apply its own law of legitimation and intestate succession or would look to the law of Wisconsin (where the claimant was born and resided, and where the wage earner was domiciled when the child was born) or Michigan {where the wage earner lived when he acknowledged the child). We stated that under general conflict of laws principles, so long as the law of the decedent's domicile does not absolutely exclude from inheritance those born out of wedlock, the status of the child as "legitimate" for purposes of inheritance as a "legitimate"1' child in the domiciliary state (whether the child is born legitimate or subsequently legitimated by force of law) is governed by the personal law of the child rather than the law of the decedent's domicile.8 The status of the child as legitimate will thus be determined by the law of any state that achieves legitimation, so long as that state has a reasonable connection to the facts. For example, a child will usually be held "legitimate" if such is his status under the law of the state where either the parent or child was domiciled when the parent performed a legitimating act (such as acknowledgement). In that case, the child's status as "legitimate" will ordinarily be recognized by the decedent's domicile and the child will be able to inherit under the latter state's laws as a legitimate child.

Here, if while either the wage earner or the claimant was domiciled in Tennessee the wage earner had married Connie H~ and acknowledged the child (the first method above), or the child had been declared legitimate in a court decree (the second method), Anthony would have been legitimated under Tennessee law. Anthony would have then been treated as a "legitimate" child for purposes of inheritance under Indiana law, rather than as an illegitimate child with inheritance rights.

However, we also explained in D~ that in contrast to those statutes of a foreign state that legitimate a child born out of wedlock and thus accord to him the right of inheritance as a legitimate child in the domiciliary state, are these statutes that enable the illegitimate child to inherit as such based on performance of acts that do not legitimate him. Since the latter statutes are ones merely of descent that govern solely the inheritance of property, rather than laws conferring status, they have no extraterritorial effect so as to control the descent of personal property of the domiciliary of another state. In other words, foreign law that enables a child to inherit as illegitimate, as distinguished from foreign law that legitimates a child and thus enables him to inherit as legitimate in other states, does not control intestate succession to personal property of a decedent who died domiciled in another state.

Indiana follows these principles. Specifically, Indiana does not apply, for purposes of intestate succession to personal Property of persons who die domiciled in the state, the laws of other states that confer inheritance rights on illegitimate children without legitimating them. Estate of Schick, 274 N.E.2d 291 (Ind. App. 1971). As noted above, the posthumous determination of paternity by "clear and convincing proof" does not legitimate a child under Tennessee law but only confers inheritance rights on an illegitimate child. Allen v. Harvey, supra; Childress v. Secretary, supra. In Childress, a claimant for child's benefits argued that Georgia, where the wage earner died domiciled, would look to the Tennessee "clear and convincing proof" standard to determine whether the claimant was legitimate. However, the Sixth Circuit held that under the Tennessee Supreme Court's decision in Allen, satisfaction of the "clear and convincing proof" standard did not legitimate the child but only conferred inheritance rights. The Court also noted that the claimant had not been legitimated under the applicable provisions of Tennessee law. 679 F.2d at 627-628. The Court concluded that Georgia would not apply Tennessee law in determining the inheritance rights of the claimant.

We think that the same result follows in this case. Since the "clear and convincing standard" of Tennessee law does not render a child "legitimate," Indiana courts would not apply this standard in determining whether Anthony S~ could inherit personal property from the wage earner. Since Anthony was not legitimated under Tennessee law or the law of any other state having a significant relationship with the facts, and since Anthony cannot inherit as an illegitimate under Indiana law, we conclude that Anthony is not entitled to benefits under the "state law" test of Section 216(h)(2)(A) of the Act.

However, we think that the claimant may, after some further development, be entitled to benefits under the "federal law" test of Section 216{h){3){C) (i)(I) of the Act. That section provides that a claimant who is the son or daughter of an insured individual but who does not qualify under the "state law" test of Section 216(h)(2)(A) shall be entitled to benefits if the insured individual prior to his death acknowledged in writing that the claimant was his son or daughter. We think that there is sufficient evidence that Anthony is the wage earner's biological son. As for the "written acknowledgement" requirement, we think that the photograph supplied by Judy S~ may meet this requirement. 9

The handwritten statement "Tony S~, My Son" on the back of the photograph is admittedly not signed by the wage earner. However, for a document to be considered written acknowledgement, it is not necessary that the document be signed by the wage earner (or even be in his handwriting) so long as there is sufficient evidence that the document was prepared by or at the direction of the wage earner. SSR 72-32, C.B. 1972 p. 34 (specifically holding that a document relied upon to establish written acknowledgement need not be signed by the wage earner, and noting that Congress did not require "acknowledgement in writing signed by the wage earner"); see also POMS GN 00306.170. Assuming that the photograph in question is that of the claimant and the handwriting is that of the wage earner, we see no reason why the photograph cannot be considered "written acknowledgement." People do not normally sign their names to photographs of themselves or their family. We note that the handwriting appears to match that of the wage earner contained elsewhere in the file. You may wish to authenticate the handwriting through an individual familiar with the handwriting. Expert opinion is not required; even in federal court, nonexpert opinion as to the genuineness of handwriting by an individual familiar with such writing is sufficient. Fed. R. Ev. 901{b){2).

Thus, assuming that the photograph is that of the claimant and the authenticity of the handwriting on the back is satisfactorily established, the photograph constitutes a "written acknowledgement" qualifying the claimant for benefits under Section 216(h)(3)(C)(i)(I).

We conclude that the claimant is not entitled to benefits under Section 216(h)(2)(A) but may, following the development suggested above, be entitled under Section 216(h)(3)(C)(i)(I). The claims folder is returned herewith.


Footnotes:

[1]

Although in your memo you indicated that Ms. C~ and Ricky B~ lived together from 1991 until 1994 when he moved to Indiana, the actual words reported by Ms. C~. were that lived together until 1991.

[2]

Although the wage earner died in Indiana, the record is not clear whether he had in fact changed his previously established domicile from Michigan to Indiana. He moved to Indiana, but had lived there less than a year before his death, lived with a cousin while there, and was buried in Michigan. See POMS GN 00305.02 {Change in Domicile) and GN 00305.025 (Development of Domicile). But because we have concluded that Indiana would apply Michigan law in determining whether the claimants are entitled to benefits, it is not necessary to resolve this issue.

[3]

In Shantelle's case, the second condition might have been satisfied if a posthumous paternity judgment had been entered, because the paternity suit was filed before the wage earner's death. But, even though the court indicated that it would have that the wage earner was Shaklee's father, the suit was unfortunately dismissed after the wage earner's death.

[4]

In Simpson we concluded that Indiana would not apply the law of Tennessee, where the child was born, but only because the applicable provisions of Tennessee's statute, unlike Michigan, did not legitimate the child; rather under Tennessee law, the applicable provisions merely conferred inheritance rights upon the illegitimate child. POMS GN 00306.080 (compare "Tennessee" entry to "Michigan" entry).

[5]

According to his application for disability benefits filed in 1979, the wage earner often used the name "Michael J. S~ ."

[6]

The wage earner was awarded disability benefits.

[7]

The constitutionality of this provision has been upheld in Burnett v. Camden, 254 N.E.2d 199 (Ind.), rehearing denied 255 N.E.2d 199 (Ind.), appeal dismissed and cert. denied 399 'U.S. 901 (1970); Marsch v. Lill, 396 N.E.2d'695 (Ind. App. 1979); and Tekulve v. Turner, 391N.E.2d 673 (Ind. App. 1979). The Marsch and Tekulve courts noted that the Supreme Court had upheld a similar New York provision in Lalli v. Lalli, 439 U.S. 259 (1978).

Section 29-1-2-7(b) is not a legitimation statute but only confers inheritance rights on illegitimate children. R.D.S.v.S.L.S., 402 N.E.2d 30 (Ind. App. 1980); Hoskett v. Hoskett, 327 N.E.2d 612 (Ind. App. 1975); Estate of Schick, 274 N.E.2d 291 (Ind. App. 1971); A.B.v.C.D., 277 N.E.2d 599 (Ind. App. 1971). See also POMS GN 00306.135 ("Indiana" entry). In fact, Indiana law currently proves no method by which an illegitimate child may be legitimated. A.B.v.C.D., supra. Prior to 19.54, however, marriage of the parents and acknowledgement by the father legitimated the child as well as conferred inheritance rights.

[8]

By the "personal law" of the child, we mean the law of the state that has the most significant relationship to the child or to the relationship between the child and his or her putative father. Such law may be that of the state in which the child was born or is currently domiciled, or the law of the state in which the alleged father was domiciled when the child was born or when the father performed acts of legitimation.

[9]

The listing of the wage earner as the father on the claimant's birth certificate does not meet the "written acknowledgement" test since the wage earner did not sign the certificate as an informant nor is there any indication that he furnished the information or otherwise filed a statement acknowledging paternity with the vital statistics office. See POMS GN 00306.175. Rather, the wage earner is listed as the father apparently on the basis of Connie H~'s false representation at the time that the parties were married.

Although the issue is close, we do not think that the hospital admission records for Connie H~ and the claimant meet the "written acknowledgement" test. Connie's record lists the wage earner as her "husband" and the person furnishing the information and responsible for payment of the hospital bill. Such representations, however, fall short of an actual acknowledgement of paternity. The claimant's hospital admission record lists the wage earner as the father but unfortunately omits designation of the person furnishing the information.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501110017
PR 01110.017 - Indiana - 09/26/2012
Batch run: 09/26/2012
Rev:09/26/2012