PR 01110.025 Michigan

A. PR 87-010 Application of Michigan "Mutual Acknowledgment" Provision to Child of Wage Earner Who Died Domiciled in Minnesota — Van F. R~

DATE: July 10, 1987



Minnesota Recognition of Michigan "Mutual Acknowledgment" Provision -A general legitimation statute bestows upon a child a status that should be recognized for all purposes in all States, absent compelling policy reasons. Here, the wage earner's domicile would recognize and apply the law of the child's domicile in determining the child's right to share in the estate of the deceased wage earner. (R~, Van F., — RAV (L~), to ARC, 07/10/87. )


A general legitimation statute bestows upon a child a status that should be recognized for all purposes in all States, absent compelling policy reasons. Here, the wage earner's domicile would recognize and apply the law of the child's domicile in determining the child's right to share in the estate of the deceased wage earner. (R~, Van F., — RAV (L~), to ARC, 07/10/87. )


You have requested our opinion as to whether the State of Minnesota would apply Michigan law in determining whether a parent-child relation- ship exists between Van F. R~ ("Van"), the deceased wage earner, and Devin R~ ("Devin"). For the reasons given below, we think Minnesota would apply Michigan's "mutual acknowledgment" provision and would find that Devin is entitled to share in Van's estate. Therefore, we conclude that Devin is entitled to child's benefits under section 216(h)(2) (A) of the Act. Van died on April 3, 1986 in Minnesota, where he had lived for about nine months. Devin was born on January 20, 1982, in Detroit, Michigan, to Iris G~ ("Iris") and has lived with Iris since his birth. We agree with your determination that the evidence demonstrates the existence of a "mutually acknowledged" parent-child relationship between Van and Devin as defined in M.C.L.A. 700.111(4)(c). Van apparently saw Devin regularly when he lived in Detroit, and he visited Devin at least twice in the eight months after he moved to Minnesota. He gave the child toys and clothes, and photographs depict Van and Devin in poses suggesting a familial relationship. Given this evidence, we have no doubt that under Michigan law, Devin would be considered Van's child. See, M.C.L.A. 700.111(4)(c); POMS GN00306.135 (Michigan).

The Minnesota Probate Code establishes the territorial application of its provisions:

Except as otherwise provided in Chapter 524, Chapters 524 and 525 apply to (1) the affairs and estates of decedents, missing persons, and persons to be protected, domiciled in this state, and {2) the property of non- resident decedents coming into this state or property coming into the control of a fiduciary who is subject to the laws of this state.

M.S.A. 524.1-301 (emphasis supplied). The Minnesota Probate Code also establishes the jurisdiction of the probate courts in that State:

(a) To the full extent permitted by the constitution, the court has jurisdiction over all subject matter relating to estates of decedents, including construction of wills and determination of heirs and successors of decedents.

(b) The court has full power to make orders, judgments and decrees and take all other action necessary and proper to administer justice in the matters which come before it.

M.S.A. 524.1-302 (emphasis supplied). Since Van was apparently domiciled in Minnesota at the time of his death, the Minnesota probate courts would have jurisdiction over Van's estate, including the question of Devin's status as an heir. 1

The issue then becomes whether a Minnesota probate court would apply Minnesota law or Michigan law in determining Devin's right to share in Van's estate. The general rule is that the status of a child as legitimate or illegitimate for purposes of inheritance is governed by the law of the child's domicile, as long as recognition of that status does not violate the public policy of the forum State. See, 10 Am. Jur.2nd Bastards §152 (1963). Furthermore, in determining whether to recognize a foreign law governing status, the courts distinguish between laws that merely afford an illegitimate child the right to inherit and laws that render a child born out of wedlock legitimate and thus afford him the same inheritance rights a legitimate child has. The courts characterize the former as statutes of descent and generally do not afford them extraterritorial operation. On the other hand, the courts generally do give extraterritorial effect to the latter class of laws on the theory that the child's status as legitimate, once determined, follows him everywhere. Id.; see, Perez v. Gardner, 277 F.Supp. 985, 992 (E.D. Wis. 1967).

We think Minnesota would apply the general rule and look to Michigan law to determine Devin's status as Van's heir. The parent-child relation- ship between Van and Devin that arises by virtue of Michigan's "mutual acknowledgment" provision operates to legitimate Devin for all purposes; he possesses "the identical status, rights, and duties of a child born in lawful wedlock effective from birth." M.C.L.A. 700.111(b) (West 1980). Thus, the "mutual acknowledgment" provision does not merely afford inheritance rights; it is instead a general legitimation statute, and as such it bestows upon a child like Devin a status that should be recognized for all purposes in all States, absent compelling policy reasons in the forum State.

In our opinion, a Minnesota court would not find compelling policy reasons requiring it to apply its own law. Until recently, in Minnesota an illegitimate child could share in his father's estate only if the father had acknowledged paternity in writing, or if paternity had been determined in a court proceeding. See, MINN. STAT. ANN. 525.172 (West 1987 Supp.). Effective for decedents dying after December 31, 1986, however, a Minnesota child can inherit from his father regardless of his parent's marital status, and for purposes of intestate succession, the parent-child relationship may be established in accordance with any of the procedures set forth in the Minnesota Parentage Act, MINN. STAT. ANN. 257.51 through 257.74 (West 1982). 2 See, MINN. STAT. ANN. 524.2-109 (West 1987 Supp.). Significantly, one provision of the Minnesota Parentage Act bears a striking resemblance to Michigan's "mutual acknowledgment" provision. Minnesota presumes the existence of a parent-child relationship if:

While the child is under the age of majority, he [the putative father] receives the child into his home and openly holds out the child as his natural child.

MINN. STAT. ANN. 257.55(d) (West 1982). Given the similarity between this "open acknowledgment" provision and the "mutual acknowledgment" provision, as well as the fact that Van died less than a year before Minnesota amended its law to allow inheritance based on "open acknowledgment," we do not believe a Minnesota court would find its public policy violated by application of Michigan law. 3

We recognize that Minnesota has a concern in the devolution of the estate of one of its domiciliaries. Nevertheless, we think a Minnesota court would find Michigan's concern in this matter to be far greater. Devin was born in Michigan at a time when Van was domiciled in that State. Most, if not all, of the actions that establish the existence of a "mutually acknowledged" parent-child relationship occurred in Michigan. Moreover, Van had lived in Michigan for many years and had left that State less than a year before he died. He returned to Michigan at least twice after he moved to visit Devin, who remains a Michigan domiciliary. In our view, Michigan's overriding concerns in this matter would further support application of Michigan law by a Minnesota court.

Finally, we note your concern that the regional POMS transmittal provision GN 00306.135.D {Michigan) limits the applicability of the "mutual acknowledgment" provision to cases in which the "NH" died domiciled in Michigan. Assuming the law of the child's domicile governs his status for inheritance purposes, the general rule is that where legitimation is based upon acts of acknowledgment by the father, the status of the child is governed by the law of the father's domicile when the acts occurred. See, 10 Am. Jur.2d Bastards §152 (1962); POMS GN 00306.110. Thus, as long as' the acts demonstrating "mutual acknowledgment" occurred in Michigan, the "NH" need not die in Michigan or be living in Michigan when the claim is filed in order to invoke the presumption of legitimacy based on mutual acknowledgment. We therefore recommend that the regional POMS manual provision be amended to delete the two references to "domiciled in Michigan." You may also wish to include in the regional POMS transmittal a reference to POMS GN00306.110 as guidance to adjudicators in cases where the "NH" is not domiciled in Michigan when he dies or when the claim is filed. POMS GN00306.110 reflects the general rule set forth above.



We assume Van was domiciled in Minnesota based solely on his residence-in that State. While residence is prima facie evidence of domicile, this evidence can be rebutted. See, 25 Am. Jur.2nd—Domicile §84 (1966). The claims folder contains no evidence suggesting Van did not intend to establish a Minnesota domicile. We think it conceivable, however, that facts sufficient to rebut the presumption exist. In light of the conclusion we reach in this memorandum, we do not recommend that you develop this issue. Nevertheless, you are free to do so, and if you find that the evidence establishes Van retained a Michigan domicile despite his residence in Minnesota, then Michigan law would apply and there would be no question as to Devin's status as Van's heir.


We note that a new subsection should be added to POMS GN 00306.135 (Minnesota) providing that if the death of the father occurs after December 31, 1986, the child acquires the status of a child if any of the presumptions in MINN. STAT. ANN. 257.55 applies. We attach for your reference a copy of this provision, as well as MINN. STAT. ANN. 524.2-109, which defines the term "child" for purposes of intestate inheritance for persons dying after December 31, 1986.


Compare In re Estate of Con,don, 309 N.W.2d 261, 271 (Minn. 1981), in which the Minnesota Supreme Court refused to apply the law of a legitimate child's domicile in determining the effect of the child's acquittal of homicide on her right to inherit from her mother, a Minnesota domiciliary. Citing traditional choice of law principles, the court rejected the child's theory that the law of her domicile should apply because her status as beneficiary under certain testamentary instruments was at issue. Id.

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