PR 01110.055 Wisconsin

A. PR 82-005 State Law Governing Legitimacy of Child - Wisconsin - Walter L. N~, A/N ~

DATE: March 23, 1982

1. SYLLABUS

INHERITANCE RIGHTS — By Illegitimate Child

Wisconsin Courts would apply the law of the State of domicile of an individual at the time of his death in determining paternity and thus inheritance rights under Wisconsin law Wisconsin law provides for inheritance rights of an illegitimate child only if the child's parents intermarry, the father acknowledges paternity in writing, the father is adjudged the father in a paternity proceedings or the father admits in open court that he is the father. (N~, Walter L. - ~ RA V (K~) to ARC - 3/23/82)

2. OPINION

This is with reference to your March 12, 1982 memorandum inquiring as to what law would be applied in determining the inheritance rights of a child born in Missouri to a mother who subsequently lived in Illinois and a father who died domiciled in Wisconsin. We understand that the case is being reexamined pursuant to the stipulated order in Boatman v. Schweiker, Civil No. 78 C 299, N.D. Ill., E. Div., 10/7/81.

Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C.A. §416(h)(2)(A), directs the Secretary to determine the status of a child by applying such law as would be applied in determining the devolution of the insured individual's intestate personal property by the courts of the State in which the insured individual dies domiciled. The issue in this case is whether the courts of Wisconsin would apply Wisconsin law in deciding whether the child had inheritance rights in the insured individual's intestate personal property or whether they would apply the law of Missouri, where the child was born, or the law of Illinois, where the child and both parents resided for a period of time after the birth.

The facts you presented are as follows: Walter L. K~ was born in Missouri on February 17, 1963. His parents were domiciled in Missouri, but were not living together at the time of conception of birth. The child and his mother, Dorothy K~, moved to Illinois in 1965. Dorothy K~ lived in Illinois from 1965 until her August 24, 1971 death. The child lived in Illinois at least until the date he filed a claim for surviving child's insurance benefits, March 12, 1981.

The alleged father, Walter L. N~, left Missouri in 1966. He married Rose W~ in 1966 in Benton Harbor, Michigan, resided in Indiana at least until 1971, and verbally admitted being the father of the claimant while domiciled in Illinois in 1971 or 1972. A divorce was granted to Rosa by a Michigan Circuit Court on June 23, 1975. The judgment indicated that the wage earner's whereabouts was not known. The wage earner lived in Indiana and Wisconsin and died December 13, 1976 in Milwaukee, Wisconsin. The death certificate showed a Milwaukee home address. Thus, it appears that the wage earner was domiciled in Wisconsin at the time of his death.

For inheritance rights to be established under Wisconsin law, one of the following acts must occur: the child's parents must intermarry, the father must acknowledge paternity in writing, the father must be adjudged the father in a paternity proceeding, or the father must admit in open court that he is the father. Wis. Stat. Ann. §§767.60 and 852.05 (West). None of these acts has occurred in this case.

The Office of the General Counsel has previously stated that where a wage earner dies domiciled in Wisconsin, Wisconsin procedural and substantive law governs a determination of legitimacy of a child born in Louisiana to the wage earner's wife, a Louisiana domiciliary. Willie N~ , , D- 12826-MA GC (K~) to SSA, 7/23/69. This position was based on Wisconsin court case authority and we reaffirm at this time the conclusion reached therein.

The Supreme Court of Wisconsin held in re Richmond's Estate, 139 N.W. 435 (Wis., 1913), that the law of the domicile of the person making an acknowledgment and not that of the domicile of the child or mother, governs the question of legitimacy. In re Englehardt's Estate, 75 N.W. 2d 631, 640 (Wis., 1956), the Supreme Court of Wisconsin held:

. . . we are disposed to adopt the principle that the status of a child, for the purpose of sharing in the distribution of personal property, is to be determined by the law of the domicile of the deceased, and that if he is legitimate by the law of the deceased's domicile, he may take, even though illegitimate elsewhere. (Emphasis added)

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 law of Wisconsin, the state where the wage earner was domiciled at the time of death.

The claims folder is returned herewith.