PR 01110.036 North Carolina

A. PR 83-027 Status of Angela S~, Lora S~ and Terry S~- Under Applicable State Laws, SSN~ - Legitimated Child

DATE: September 13, 1983

1. SYLLABUS

LEGITIMACY AND LEGITIMATION — Legitimating acts by parents — North Carolina

Since North Carolina statutory law specifically bestows inheritance rights absolutely upon legitimated persons, North Carolina being the state of domicile of the insured individual at the time of his death, it would not be necessary for the courts of North Carolina to look to the law of other states. North Carolina statute provides for legitimation upon intermarriage of the parents. (S~, Terry F., ~ — RAIV (W~), to ARC, 09/13/83.)

2. OPINION

You have requested our opinion as to whether Lora M. S~ (born January 7, 1969), Angela M. S~ (born February 2, 1970), and Terry F. S~. (born March 24, 1971), are the children of the deceased wage earner (DWE), Terry F. S~ within the meaning of the Social Security Act, as amended. The DWE (putative father) and the childrens' mother, Ethel S. C~ intermarried on August 30, 1971.

The facts as contained in the file are that Lora was born in Florida. Her birth certificate shows the DWE as the father; the informant is not shown. Angela and Terry, Jr., were born in Michigan and both birth certificates show the DWE as the father. The informant for Angela's birth certificate is not shown; Ethel S. the mother, is listed as the informant on Terry, Jr.'s, birth certificate. On August 30, 1971, the DWE and Ethel S. C~ were married in Indiana. Their marriage certificate shows that both husband and wife were living in Michigan at that time. The DWE died on December 16, 1981, while domiciled in North Carolina.

The May 16, 1983, letter from Clair M. P~, Director of the Great Lakes Program Service Center, to this office indicates that the laws of the States in which the children were born (Florida and Michigan) as well as the State in which the wage earner died (North Carolina) would recognize the children as children of the DWE due to the intermarriage of the parents; however, Indiana, the State in which the legitimating act took place, would not recognize the children as legitimate. There is no written acknowledgement and the wage earner was neither living with nor supporting the children at the time of his death.

Inasmuch as the decedent died domiciled in North Carolina, the laws of North Carolina will determine what class of persons will inherit property in that State since that is a question of descent and not status. Where the law of the domicile at death provides no statute of inheritance absolutely bestowing inheritance rights upon legitimated persons, the rule that the law of the domicile at death determines inheritance rights does not in itself necessarily resolve the question of inheritance without reference to the question of what law determines the status of the child as legitimate or illegitimate. On the last point, the courts in an overwhelming majority of the States, including North Carolina, take the position that the question of whether a particular child has acquired the requisite status of legitimacy to bring him within the class of persons who are permitted to inherit by the law of the domicile at death is a question, not of descent and distribution, but of personal status and as such is governed by the personal law of the child, and the existence or acquisition of a legitimate status by the child's personal law will be given effect under the inheritance law of the domicile at death (so long as such recognition does not violate the public policy of the forum), as will the denial of such status. 87 ALR 2d 1276 §3; Teague v. Wilson, 220 N.C. 241, 17 S.E.2d 9 (1941).

In this claim, however, the personal law of each of the three children governing the status of each child with respect to legitimation need not be developed because North Carolina law absolutely bestows inheritance rights on such persons. Under the provisions of the General Statutes of North Carolina §49-12,

"When the mother of any child born out of wedlock and the reputed father of such child shall intermarry or shall have intermarried at any time after the birth of such child, the child shall, in all respects after such intermarriage be deemed and held to be legitimate and the child shall be entitled, by succession, inheritance or distribution, to real and personal property by, through, and from his father and mother as if such child had been born in lawful wedlock .... "

See also, Fowler v. Fowler, 131 N.C. 169, 42 S.E. 563 (1902).

Thus, it is our opinion that Lora M., Angela M., and Terry F. S~, are entitled to inherit the intestate property of the decedent, under the laws of North Carolina, and are children of the DWE within the meaning of the Social Security Act, as amended.


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PR 01110.036 - North Carolina - 04/28/2011
Batch run: 04/28/2011
Rev:04/28/2011