PR 01110.238 Mexico

A. PR 86-005 Jose G~, Child with Inheritance Rights

DATE: February 7, 1986

1. SYLLABUS

PARENT OR CHILD NOT ENTITLED TO INHERIT

In ascertaining an individual's intent with regard to domicile, it is essential to evaluate any statement of intent in relation to the surrounding circumstances, the most important of which are the individual's domicile of origin and present family residence. (G~, Jose; RA IX; S~; February 7, 1986).

WHICH STATE LAW GOVERNS

There is a presumption that an individual retains his/her original domicile, and where there is a conflict in the evidence, the original domicile is favored. (G~ Jose; RA IX; S~; February 7, 1986).

WHICH STATE LAW GOVERNS

It is presumed that the domicile of the head of a house- hold is the place where his/her family resides. Jose; RA IX; S~; February 7, 1986).

WHICH STATE LAW GOVERNS

A new domicile may be acquired instantaneously residence and intent to remain converge. (G~ RA IX; S~; February 7, 1986).

2. OPINION

An application for child's insurance benefits for Emery G~ G~ has been filed on the account of Jose G~. Emery, who was born on June 16, 1977 to an unmarried woman, was given by her mother to Mr. G~ and his wife shortly after birth. Evidence in the claims file indicates that Emery is identified as Mr. G~ daughter in the official civil registry records of Jalisco, Mexico.

Mr. G~, a Mexican citizen, earns his living in the United States. Since 1950 he has resided in California for six to nine months each year. His wife, Emery, and another daughter live year-round in Jalisco. Recently, Mrs. G~ has visited in California for several months at a time on a number of occasions. Neither daughter has ever been to California. Mr. G~ does not own property in California. 'During the work year he lives with his son.

You have requested our assistance in determining whether or not Emery qualifies as Mr. G~ "child" for purposes of entitlement to social security benefits on the wage earner's account. The threshold problem in this case is the location of Mr. G~ domicile. If Mr. G~ is a domiciliary of Jaslisco, the laws of that Mexican state are determinative of Emery's status. GC opinion re J. Rosario DeLa Rosa, August 1, 1984. On the other hand, a California domicile would necessitate application of California law. 20 C.F.R. §404.354(b). The choice of law is Critical here. Emery would qualify as Mr. G~ child pursuant to Jalisco law, in consequence of the civil birth registration, GC opinion re J. Rosario DeLa Rosa, cited above. On the other hand, it is not clear how the California courts would view the relationship. It is possible that entitlement could not be sustained on the basis of California precedents.

Recognizing the significance of domicile in this and' other cases where it is necessary to reference state law, you have asked us to outline a framework for evaluating domicile. 1 Initially, you should be aware that domicile in this context is a matter of federal rather than state law. GC opinion re Eli S. Wall, June 25, 1984. Therefore., your question about the treatment of domicile by the California courts is not germane. The pertinent federal. regulation equates the statutory term, "domicile," see section 216(h)(2)(A) of the Social Security Act, with the wage earner's "permanent home." 20 C.F.R. §404.354(b). "Permanent home," in turn is defined as "the place to which a person intends to return whenever he or she is absent." 20 C.F.R. §404.303. It follows that case development should be directed toward ascertaining the wage earner's intent in this regard. 2

Although it will always be useful to obtain a declaration of intent from the wage earner whenever domicile is at issue, such a statement is, by itself, insufficient to establish domicile. "It does not rest with a man to determine the place of his domicile by expressing an intent which is contrary to the facts in an attempt to avoid the inevitable legal consequences of such facts. The acts of a person must correspond with the purpose to change his domicile." 25 Am. Jur. 2d, "Domicile," §24 (emphasis added). Consequently, evidence of conduct should be accorded greater weight than an unsubstantiated declaration of intent. Id. at §93. Declarations are particularly suspect where the declarant may perceive some advantage in identifying himself as a domiciliary of a particular jurisdiction. Id. at §92. For these reasons it is essential to evaluate a statement of intent in relation to the surrounding circumstances. See Id. at §§91, 92.

As a rule, the two most important circumstances to be considered in a given case are the domicile of origin 3 and present family residence. There is a presumption that an individual retains his/her original domicile, and where there is a conflict in the evidence, the original domicile is favored. Id. at §§85, 87. Furthermore, as relevant here, "It]here is a strong presumption that a person in a foreign country intends to retain his national domicile." Id. at §86. It is also presumed that the domicile of the head of a household is the place where his/her family resides. See Id. at §85.

Neither original domicile not family residence is conclusive. Conduct which may also bear on the determination of domicile includes (1) exercise of civil rights (e.g., voting); (2) payment of local taxes; (3) acquisition of a driver's license or business permit; (4) property ownership or other financial commitment to the locality. See Id. at §§94-98. The place of employment is also significant, but due consideration must be given to factors which might compel an individual to work away from his actual domicile. See Id. at §39 fl. "[E]mployment at a particular place [does not] bring about a change of domicile where the intention to remain at that place is contingent upon the permanency of the employment." Id. at §97.

The evidence in this case does not demonstrate a change in domicile from Jalisco to California. As noted above, it is strongly presumed that the domicile of a foreign national continues to be his country of origin and that the domicile of a married man is located where his family resides. Both presumptions arise here. Despite his long-term contact with the United States, Mr. G~ has retained his Mexican citizenship. Mexico, therefore, is his presumptive domicile. He is further presumed to be a Jalisco domiciliary because his wife and daughters maintain the family home, to which he returns each year, in that Mexican state. Evidence suggesting that Mr. G~ has not sought U.S. citizenship or year-round employment in this country also tends to show that it has never been his purpose to leave Jalisco and set up a permanent residence in California.

The only notable circumstance indicative of a California domicile is Mr. G~ intermittent residence in that state for approximately nine months a year over a span of thirty-five years. In the absence of evidence of intent, duration of residence can often be important in locating domicile. Id. §23. 4 But domicile cannot be determined arithmetically. Mr. G~ presence in California is most readily explained as a response to the economic realities of farm labor, rather than as a decision to make California his permanent home. More telling than his yearly migration to California is the fact that at the conclusion of each work season, he has returned without fail to Jalisco. This pattern demonstrates convincingly that Jalisco is the place to which Mr. G~ "intends to return whenever he is absent." 20 C.F.R. §404.303. Jalisco, therefore, must be considered to be his domicile, or "permanent home," within the meaning of the Act.

As we have indicated, under Jalisco's law, Emery is entitled to rights of inheritance as the child of Mr. GC opinion re J. Rosario DeLa Rosa, cited above. 5 Because our conclusion regarding domicile dictates application of Jalisco law, we do not reach the questions raised in your memorandum as to the recognition California would accord the Mexican civil birth registration and the effect, if any, of California Probate Code Section 6408(a) (1).

The claims file is returned herewith.


Footnotes:

[1]

Your interest in this topic was clarified during a conversation between myself and a member of your staff, Barbara B~, on September 19, 1985.

[2]

The following discussion elaborates on, and is meant to be consistent with, the guidelines for the development of domicile set out in POMS GN 00305.025.

[3]

"A 'domicile of origin' is that which a person acquires at his birth, and it continues until it is replaced by acquisition of another domicile." Id. at §13.

[4]

Note, however, that a new domicile may be acquired instantaneously where residence and intent concur. Id.

[5]

We explained in the DeLa Rosa opinion that a child's status premised solely upon records of the civil registry is subject to attack in court by any interested party. "Unless and until a judicial decree invalidating the registration has been issued, however, the applicant will continue to be entitled to inheritance rights from the wage earner." Id.


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PR 01110.238 - Mexico - 04/28/2011
Batch run: 04/28/2011
Rev:04/28/2011