This is with reference to your memorandum inquiring as to what law would be applied
in determining the inheritance rights of a child born and domiciled in Illinois.
Section 216 (h)(2)(A) of the Social Security Act, 42 U.S.C.A. 416 (h)(2)(A), provides
that the Secretary is to determine whether an applicant is the child of an insured
person by applying such law as would be applied in determining the devolution of intestate
personal property by the courts of the state in which the insured individual is domiciled
at the time of his death. The issue in this case is whether the courts of Ohio would
apply Ohio law in deciding whether the child had inheritance rights in the insured
individual's intestate personal property or whether they would apply Illinois law,
the state where both parents were domiciled at the time of birth.
The relevant facts appear to be as follows. Andre W~ was born on August 25, 1970 in
Chicago, Illinois. The birth certificate shows the child's mother as Mary A. W~. The
father's name is not shown, but his age is given as 17 (Mr. W~, the wage earner, was
born November 1, 1952 and would have been age 17 at the time of the child's birth).
The child's mother says that he was named after his father. The child has resided
continuously in Illinois from his birth until the present.
The alleged father, Andrew W~, and Mary W~ were never married. Andrew W~ was domiciled
in Illinois during the 1970s. His marriages to Alrita L. B~ in 1972 and to Staria
T~ in 1977 took place in Chicago and the marriage certificates show Chicago as his
place of residence. In addition his earnings record shows that he worked for Chicago
businesses in 1970, 1971, 1974 and 1975.
The statements of Mr. W~'s mother and sister show that while Andrew W~ was domiciled
in Illinois he made oral admissions of paternity, visited the child and allegedly
contributed toward his support. Mr. W~ took Andre to visit his mother and sister in
There is a church memorial card printed for Mr. W~ 's funeral services which lists
Andre as one of the deceased's sons. The various statements made by the number holder's
relatives are corrobative of each other and there is no contradictory evidence.
According to Mr. W~ 's mother, Tommai G~, he resided in Ohio for at least a year prior
to his death on August 5, 1979. She stated that he had a job in Ohio, paid taxes there
and planned to stay there. Mr. W~'s sister, Mrs. F~, also states that her brother
had lived in Ohio for the last year of his life and had held various jobs there. Ohio
was listed as his place of residence on his death certificate. Thus it appears that
the wage earner was domiciled in Ohio at the time of his death.
Ohio courts in determining the status of a child as legitimate for the purpose of
inheritance of property would apply the general conflicts of law principle of looking
to the law of the state where the child was born. Howells v. Limbeck, 172 Ohio St. 297, 175 N.E.2d 517,520(1961). See also 10 Am. Jur. 2d Bastards § 9(1979). The Illinois statute regarding the legitimacy
of children is" found at Ill. Ann. Star. ch. 40, §303 (S~-H~ 1971), and provides that
children are legitimate who are born or adopted of a marriage declared invalid or
"whose parents marry after their birth." Under the Illinois statutes and case law
normally the only means of acquiring legitimate status is through the parents' marriage
or attempt to marry. Illinois law regarding legitimation was recently summarized as
follows in, Dotson v. Sears, Roebuck and Co., 510 N.E. 2d 1208, 1216 (Ill. App. I Dist. 1987):
The only statutory means provided in Illinois for the legitimization of a child are
not unilateral. Section 303 of the Illinois Marriage and Dissolution of Marriage Act
provides, inter alia , that children whose parents marry after their birth are deemed
legitimate. (Ill.Rev. Stat.1979, ch. 40. par. 303). Section 2-2 of the Probate Act
of 1975 provides, inter alia, that a person who was illegitimate whose parents intermarry
and who was acknowledged by the father as his child is legitimate. (Ill.Rev. Stat.
1979, ch. 110 1/2, par. 2-2(h)). Additionally, section 212 of the former Act provides
that children born of an invalid or common law marriage are legitimate. (Ill.Rev.
Stat.1979, ch. 40, par. 212(c)). Plaintiffs do not contend that Steve D~ and Vickie
H~ were legally married or were parties to a common law or otherwise invalid marriage.
Therefore, Stevie H~ was illegitimate when born and could have been legitimated only
through the intermarriage of his parents or, for purposes of inheritance by or from
him, their intermarriage and Steve D~'s acknowledgement of him as his child.
Under Illinois law Andre W~ has the status of an illegitimate child, since his parents
never married or attempted to marry. 
In this case the issue is not one of status as legitimate or illegitimate, since Andre
W~ is illegitimate under the laws of both Ohio and Illinois. See Ohio Rev. Code Ann.§ 2105.18 (Page Supp. 1987). The issue is whether Ohio or Illinois
law would apply to determine whether an illegitimate child can inherit. Ohio courts
would apply the general conflicts of law rule that when the question is whether an
illegitimate child can inherit, the law of descent and distribution of the father's
domicile at the time of his death governs. 10 Am. Jur. 2d Bastards § 152 (1963). See also 87 ALR 2d 1269, at 1291. This general choice of law rule has been summarized as follows:
A different rule prevails where a child is illegitimate at birth under the law of
the state of the father's domicile at that time and the father performs acts (such
as acknowledgment) which fall short of giving the child a legitimate status under.
the law of the state of the father's domicile at the time the acts are performed.
Acts of this sort may not enable the child to inherit as a child from the father under
the law of another state, even though they confer inheritance rights on the child
under the law of the state of the father's domicile at the time of performance.
POMS GN 00306.110.
A foreign law of inheritance has no extraterritorial application so as to control
the course of descent and distribution in the state of the father's domicile at death.
Reilly v. Shapiro, 265 N.W. 285 (Minn. 1936); Pfeifer v. Wright, 41F. 2d 464 (10th Cir. 1930), cert. den. 282 U.S. 896 (1930). We have not found
any Ohio cases contrary to this principle. Accordingly, we conclude that the question
of whether the claimant had inheritance rights in the deceased wage earner's estate
would be governed by the laws of descent and distribution of Ohio.
Under Ohio law an illegitimate child cannot inherit from or through his natural father
unless the father takes some steps during his lifetime to permit such inheritance
such as acknowledgement, designating the illegitimate child as heir, adopting the
illegitimate child or providing for the illegitimate child in his will. Moore v. Dague, 46 Ohio App. 2d 75, 345 N.E. 2d 449 (1975) The constitutionality of the Ohio statute
governing inheritance by illegitimates, Ohio Rev. Code §§ 2105.15 - 2105.18(Page Supp.
1987), was upheld in White v. Randolph, 59 Ohio St. 226, 391N.E. 2d 333 (1979), cert. den. 444 U.S. 1061(1980). The court
held that equal protection of the laws was not denied to those illegitimate children
whose fathers did not formally acknowledge them or designate them as heirs-at-law
since the statutory scheme was substantially related to the important state interest
in just and orderly disposition of property at death. Id, p. 336.
In the present case the father's acts of oral acknowledgement are insufficient to
confer inheritance rights under Ohio law or the status of child under the Social Security
Act.  Andrew W~ did not formally acknowledge Andre W~ under the Ohio Probate Code, Ohio
Rev. Code Ann. § 2105.18 (Page Supp. 1987}, or the Illinois Parentage Act, Ill. Ann.
Star. ch. 40,§ 2506 (S~-H~ 1988). Apparently, he did not attempt to marry the child's
mother, adopt the child, provide for him in his will, execute a declaration of heirship,
or sign the child's birth certificate. You have asked us to assume that Andrew W~'s
acts of oral acknowledgement may have conferred inheritance rights under Illinois
law. Even so, the Illinois law concerning descent and distribution to illegitimates
is inapplicable in this case, as previously discussed at footnote 1. Andrew W~'s acts
of oral acknowledgement do not confer inheritance rights under Ohio law.
We conclude that Ohio law concerning descent and distribution governs in this case
and conclude, therefor, that Andre W~ is not entitled to benefits as the child of
The claims folder is returned herewith.