PR 01110.039 Ohio

A. PR 88-028 State Law Governing Inheritance Rights of Child - Ohio - Andrew W~ A/N ~~

DATE: October 5, 1988

1. SYLLABUS

PARENT AND CHILD — FEDERAL "DEFINITION OF CHILD"— ACKNOWLEDEMENT OF PATERNITY — OHIO

A foreign law (here Illinois law) has not extraterritorial application so as to control the cause of descent and distribution in the State (Ohio) of the father's domicile at death. Since the father's acts of oral acknowledgment, are insufficient to confer inheritance rights under Ohio law or the status of child under the Social Security Act, the claimant is not entitled to benefits in this case. (W~, Andrew — ~ - RAV [W~] to ARC, Progs. 10/05/88 )

2. OPINION

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 their homes.

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. 1

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. 336.2

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. 3 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 Andrew W~.

The claims folder is returned herewith.


Footnotes:

[1]

If the Illinois law of descent and distribution were applicable then under-the Illinois Probate Law, Public Act 80 - 1429, effective September 12, 1978 and codified at Ill. Rev. Star. ch. 110 1/2, Sec. 2 - 2, an illegitimate person could inherit from his father if paternity could be proven by clear and convincing evidence. Although this standard may be met in this case, it would not confer legitimate status upon the child. It would merely establish inheritance rights under Illinois law. — Acceptability of Oral Acknowledgement of a Child as Legitimating Act — Louis B~ , RA V (Goeser} to ARC Programs, SSA V (5/19/80); -Status of Al S~ S~ as a Child of Al S~ , ~, RA V (Dorn) to ARC programs, SSA V (7/28/80).

[2]

In White, supra, the Ohio Supreme Court reexamined their previous holding in Moore v. Dague, supra, that the Ohio inheritance statutes withstood an equal protection challenge in light of Trimble v. Gordon, 430 U.S. 762 (1977). In Trimble, the United States Supreme Court found that the Illinois intestacy laws invidiously discriminated against illegitimate children. The Ohio Supreme Court in White found that the Ohio statute was similar to a New York intestacy statute which the United States Supreme Court upheld in Lalli v. Lalli, 439 U.S. 259 (1978).

[3]

Ohio law regarding inheritance was summarized by our office in 1979. —Comprehensive Review of CM § 2422 - Digest of State Laws or Acts Constituting Legitimation or Acknowledgement — RA V(D~) SSA V (4-25-79). An illegitimate child can inherit in Ohio if his or her parents intermarry, attempt to intermarry, a probate court declares the child legitimate, a declaration of heirship is filed, or the father with his consent signs the child's birth certificate. See POMS at GN 00306.135.


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PR 01110.039 - Ohio - 04/28/2011
Batch run: 04/28/2011
Rev:04/28/2011