Cyrea S~ filed a claim for child's benefits on behalf of Corvetta W~, on the account
of Leslie J. D~, who has been receiving disability insurance benefits (DIB) since
March 1998. You have asked whether the Indiana courts would give full faith and credit
to the Illinois Court's Order of Parentage and Support, which found Mr. D~ to be the
natural father of Corvetta, such that Corvetta would be entitled to inherit based
upon that Order, and could thus qualify for child's benefits as a natural child of
Mr. D~. We conclude that it is not clear from the evidence available whether the Illinois
Order would suffice for Corvetta to establish inheritance rights under Indiana law.
However, Corvetta would be entitled to inherit as a natural child would under Indiana
law based on her separate ability to establish paternity, and, therefore, she does
qualify as Mr. D~'s child for purposes of entitlement to child's benefits.
After Corvetta applied for child's benefits on July XX, 2001, Mr. D~'s wife, Mrs.
Marcia D~ received notice that the benefits she was receiving for Jamari and Jamal
D~ would be reduced to pay Corvetta's claim. Mr. D~ filed a statement with the Commissioner
on August XX, 2001, denying that he is the father of Corvetta and objecting to the
payment of benefits to her based on his record. Prior to Corvetta's application, Mr.
D~ had been found to be the natural father of Corvetta and ordered to pay monthly
support to her by the Domestic Relations Division of the Circuit Court of Cook County,
Illinois. Though the paternity finding was made pursuant to a default hearing, Mr.
D~ did appear in Court prior to the final resolution of the paternity and support
matter. Although Ms. Cyrea S~, Corvetta's mother, claimed that blood testing was done
in relation to that Order, the Court documents do not reflect that such testing was
done. Ms. S~ has expressed a willingness to provide blood testing, but Mr. D~'s wife
claims that Mr. D~ cannot afford this testing. The file also contains a handwritten
letter which appears on its face to be a letter from Mr. D~ to Corvetta, in which
he states “now that you know I'm your Father I want you to know that I love you.”
He states that she looks like him, and he signs “Daddy Leslie.”
Under the Social Security Act, Corvetta may establish that she is the child of Mr.
D~ and that she is thus eligible to receive child's benefits on his account, if, under
Indiana law, she would be entitled to inherit from Mr. D~ as one of his children if
he were to die intestate. See 42 U.S.C. § 416(h)(2)(A) (2001); 20 C.F.R. § 404.355(a)(1), (b) (2001). If Corvetta
did not qualify for child's benefits based upon the right to inherit under state law,
she could establish that she is eligible for benefits if Mr. D~, as Corvetta's biological
father, either acknowledged paternity of Corvetta in writing, was decreed by a court
to be Corvetta's father, or was ordered by a court to pay child support to Corvetta
because she is his child. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3). Corvetta also could establish
by some other evidence that Mr. D~ is her natural father, as long as she could also
show that he was either living with her or contributing to her support at the time
she filed her application. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).
State Inheritance Law
We first consider whether Corvetta would be entitled to child's benefits based on
Indiana's intestate inheritance law. See 42 U.S.C. § 416(h)(3). In the file, it is noted that Mr. D~ is a current resident
of Indiana. In analyzing whether a child is entitled to benefits as a natural child
of a living DIB beneficiary, the intestacy law applied is that which would be applied
in the state where the number holder was domiciled when the child's application for
benefits was filed. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (3); Program Operations Manual
System (POMS) GN 00306.001C.2.a; GN 00306.075B.2.a. It appears from the file that Mr. D~ was domiciled in Indiana as of July XX, 2001,
the protective filing date of Corvetta's claim. Notice of Corvetta's claim was mailed
to the same Indiana address which Mr. D~ listed on his subsequent statement to the
Commissioner. The intestacy law of Indiana is therefore applied to determine Corvetta's
As you have indicated, Corvetta may have paternal inheritance rights with respect
to Mr. D~ under Indiana law, because his paternity has been established by law in
a cause of action. See Ind. Code Ann. § 29-1-2-7(b)(2)(A), (d) (West 2001); POMS GN 00306.080, Indiana. Such rights would be sufficient for Corvetta to be deemed Mr. D~'s child
for the purpose of awarding child's benefits. See 20 C.F.R. § 404.355(a)(1), (b). The cause of action in this case, however, occurred
in Illinois, and appears to have resulted in a default finding. You have asked whether
the Indiana courts would recognize the Illinois Order for the purposes of conferring
inheritance rights on Corvetta.
We have previously opined that Indiana courts generally will give full faith and credit
to another state's paternity determination. Memorandum from Reg. Chief Counsel, Chicago,
to Ass't Reg. Comm'r-MOS, Chicago, Effect In Indiana of an Out-of-State Paternity
Finding-Jordan Thomas, at 2 (Nov. 12, 1998). Indiana courts would consider themselves
bound by such judgments so long as the state court which issued the paternity order
had jurisdiction over the subject matter and the relevant parties. See Ind. Code Ann. § 31-14-19-1 (West 2001); Lucas v. Estate of Stavos, 609 N.E.2d 1114, 1116, 1120 (Ind. Ct. App. 1993), modified by Stidham v. Welchel, 698 N.E.2d 1152, 1155-56 (Ind. 1998). In assessing whether another state's jurisdiction
was proper, the Indiana courts look to the substantive law of that other state. See id. at 1117; Podgorny v. Great Cent. Ins. Co., 311 N.E.2d 640, 644 (Ind. Ct. App. 1974) (citation omitted). In this case, subject
matter jurisdiction was proper. Mr. D~ was adjudged the father of Corvetta by the
Cook County Circuit Court of Illinois, and, in Illinois, the Circuit Courts have jurisdiction
over paternity actions. See Ill. Comp. Stat. 750 § 45-9(a) (West 2001).
As we noted in our earlier Memorandum, the Indiana Supreme Court clarified that, contrary
to the Lucas Court's holding, Lucas, 609 N.E.2d at 1117, judgments rendered where
personal jurisdiction was lacking are void, not merely voidable. Stidham, 698 N.E.2d at 1154-55. In other words, the Indiana courts will not consider such
a judgment operable merely because it has not yet been formally challenged and adjudged
void. Thus, it is critical to examine the validity of personal jurisdiction in a state
court paternity action when inheritance rights turn on that paternity ruling.
Personal jurisdiction may be obtained in Illinois through proper service of process.
In re Marriage of Schmitt, 747 N.E.2d 524, 530 (Ill. App. Ct. 2001) (citation omitted). The Order of Parentage
from Illinois indicates that Mr. D~ was satisfactorily served. Though he was served
by substitution, rather than in person, the Court documents noted the same Illinois
address for Mr. D~ as he listed for himself during a subsequent appearance, so no
defects in service are apparent. A judgment from a court of general jurisdiction with
no apparent jurisdictional defects is presumed valid. See Podgorny, 311 N.E.2d at 643-44, 644 n.2.
In any event, objections to personal jurisdiction are waived in Illinois when a party
makes an appearance before the Court and files a substantive motion, but does not
make a specific objection to personal jurisdiction at that appearance. Ill. Comp.
Stat. 735 § 5/2-301(a), (a-5) (West 2001); see also Weierman v. Wood Landscaping, Inc., 630 N.E.2d 1298, 1300-01 (Ill. App. Ct. 1994) (any action by a defendant which recognizes
the case as being in court constitutes a waiver of his jurisdictional challenge unless
the action is solely an objection to jurisdiction); Poplar Grove State Bank v. Powers, 578 N.E.2d 588, 593 (Ill. Ct. App. 1991) (“A defendant who asks for affirmative
relief on the merits from the trial court waives objections to the court's in personam jurisdiction over him.”).
Mr. D~ appeared in the Illinois Court to file a motion requesting blood testing after
the Court found him to be Corvetta's father. This appearance, though it came after
the Court made its paternity finding, came before the Court entered its final judgment.
The Illinois Supreme Court has held that a circuit court's determination of paternity
is not a final judgment where that court reserved various support matters for future
determination. Ex rel. Franson v. Micelli, 666 N.E.2d 1188, 1190 (Ill. 1996). In finding Mr. D~ to be Corvetta's father, the
Circuit Court reserved for continued hearing matters of support, retroactive support,
and health insurance, so the Court's initial paternity finding was not a final judgment.
See id. A Court document indicates that a support order was entered in April 1999, prior
to Mr. D~'s motion filing. However, the Court's official “Support Order” indicates
that the “Establishment of Support” and “Judgment” occurred subsequent to Mr. D~'s
motion filing and pursuant to his presence in Court. Therefore, prior to the entry
of the Illinois Court's final judgment of paternity, Mr. D~ appeared before that Court
without objecting to personal jurisdiction, and thus waived his right to so object.
Cf. Bradshaw v. Pellican, 504 N.E.2d 211, 213-14 (Ill. Ct. App. 1987) (defendant who made special appearance
to object to personal jurisdiction after default judgment of paternity and entry of
support order nonetheless waived objection when he also took a step which invoked
the court's jurisdiction), cited with approval in In re Marriage of Verdung, 535 N.E.2d 818, 822 (Ill. 1989) (noting cases where participation in proceedings
validated court's personal jurisdiction). Thus, the Illinois Court's judgment that
Mr. D~ was Corvetta's natural father was made with proper subject matter and personal
jurisdiction and would be entitled to full faith and credit in Indiana courts. See Ind. Code Ann. § 31-14-19-1; Podgorny, 311 N.E.2d at 644 (citation omitted).
Full faith and credit requires Indiana to give the Illinois judgment the same effect
as it would be given by Illinois. See Omni Micro, Inc. v. Hyundai Elecs. Am., 571 N.E.2d 598, 600 (Ind. Ct. App. 1991). The Indiana courts would look to the law
of the rendering state to determine the effect of the judgment. See In Re Paternity of JWL, 672 N.E.2d 966, 967-68 (Ind. Ct. App. 1996), aff'd 682 N.E.2d 519 (Ind. 1997). Illinois
law allows for, in fact requires, a valid paternity judgment by default, where the
alleged father is properly served but fails to appear, and where the testimony of
the mother may have been, but was not necessarily, heard. See 750 Ill. Comp. Stat. Ann. § 45/14(f) (West 2002). Further, under Illinois law, a
child can inherit based upon an authenticated copy of a paternity judgment that was
obtained during the father's lifetime. 755 Ill. Comp. Stat. Ann. § 5/2-2; see In Re Estate of Lucas, 508 N.E.2d 368, 374 (Ill. Ct. App. 1987), appeal denied, Lukas v. Am. Nat'l Bank and Trust Co. of Chicago, 515 N.E.2d 111 (Ill. 1987). Thus, the Illinois courts would give decisive effect
to Mr. D~'s paternity judgment in an heirship proceeding, and the Indiana courts should
allow the judgment to be considered in an intestacy proceeding there. See Omni Micro, Inc., 571 N.E.2d at 600. However, Indiana substantive law also must be considered to discern
whether the Illinois Order would satisfy the statutory requirements for establishing
inheritance rights in Indiana. See JWL, 672 N.E.2d at 968 (where the Court turned to address the effect of a foreign paternity
finding under Indiana substantive law after determining the effect the foreign state
would accord the finding); see also Lucas, 609 N.E.2d at 1120, n.5, 1122 (following parallel principle in a wrongful death
action rather than an intestacy proceeding).
Indiana's intestacy statute requires that paternity be “established by law” to allow
an illegitimate child of a man to inherit the same as would legitimate child(ren).
Ind. Code Ann. § 29-1-2-7(b)(1)-(3) and (d). In 1962, the Indiana Court of Appeals
held that, in order to inherit under the “established by law” standard, the child's
paternity must have been established in a judicial proceeding brought for that purpose
in a court of law having jurisdiction to determine the issues. Thacker v. Butler, 184 N.E.2d 894, 897 (Ind. Ct. App 1962), transfer denied by 188 N.E.2d 418 (Ind.
1963). The Illinois Court's finding of Mr. D~'s paternity of Corvetta was made pursuant
to a paternity proceeding, so the nature of the judicial proceeding seems to satisfy
the “established by law” standard set forth in Thacker, 184 N.E.2d at 897. However,
further development would be needed to determine whether the Illinois Order violates
the evidentiary standard of the Indiana intestacy statute. The Indiana intestacy statute
states that a mother's testimony alone cannot be used to establish paternity which
will be relied upon to establish inheritance rights; corroborative evidence or circumstances
must support the mother's testimony. Ind. Code Ann. § 29-1-2-7(c). It is not clear
what evidence, if any, was used to establish paternity in the Illinois court. The
Order Prove-Up in the file suggests that some evidence was considered. If, however,
the Illinois Court's paternity finding was strictly a default finding, it does not
appear that this would suffice to establish inheritance rights in Indiana. Although
Indiana allows for default findings of paternity against alleged fathers who receive
notice of paternity hearings but who fail to appear, Ind. Code Ann. § 31-14-8-2; see also Stidham, 698 N.E.2d at 1153, 1156 (finding a default paternity action was void because of
lack of personal jurisdiction), the intestacy statute specifically indicates that
a mother's testimony alone would not suffice to prove paternity for the purposes of
establishing inheritance rights. Ind. Code Ann. § 29-1-2-7(b), (c).
Thus, although the Illinois Order of Parentage was made with proper subject matter
and jurisdiction, and would thus be entitled to the full faith and credit of Indiana
courts, it does not clearly conform with Indiana's evidentiary requirements for paternity
that has been established by law for the purposes of establishing inheritance rights.
Ind. Code Ann. § 29-1-2-7(b), (c). We have thus concluded that further development
would be needed to determine whether the Illinois Order would suffice to establish
Corvetta's inheritance rights in Indiana. However, it appears that Corvetta could
separately meet the evidentiary standards set forth in the intestacy statute were
she to bring a paternity action in Indiana. As noted above, the Agency does not require
a claimant to actually file a paternity suit where that suit would otherwise be necessary
to establish inheritance rights under state law; rather we “will decide your paternity
by using the standard of proof that the State court would use as the basis for a determination
of paternity.” 20 C.F.R. § 404.355(b)(2). Thus, if Corvetta could establish paternity
according to the evidentiary requirements of Indiana law, that would suffice for her
to establish inheritance rights under Indiana law, and she would thus be deemed a
natural child of Mr. D~ under Social Security law and entitled to child's benefits
under his account. 20 C.F.R. § 404.355(a)(1).
In Indiana, a paternity finding which is based on the mother's testimony may be used
to establish inheritance rights, but only if corroborative evidence or circumstances
supported that testimony. Ind. Code Ann. § 29-1-2-7(b) and (c); see also Burnett v. Camden, 254 N.E.2d 199, 201 (Ind. 1970), reh'g denied 255 N.E.2d 650 (Ind. 1970). Corvetta's
mother would undoubtedly testify that Mr. D~ is her father, and Corvetta possesses
a signed letter from Mr. D~ in which he states unequivocally that he is her father.
The handwriting in the letter from “Daddy Leslie” to Corvetta essentially matches
Mr. D~'s handwriting on the Motion he filed in Illinois Court in May 1999. Thus, on
its face, this letter appears to be authentic. Thus, it appears Corvetta would be
able to establish paternity sufficient for establishing inheritance rights in Indiana
courts. See Green v. Estate of Green, II, 724 N.E.2d 260, 265 (Ind. Ct. App. 2000) (where alleged father's unequivocal designation
of putative heir as his son on signed documents was found to constitute corroborative
evidence); Matter of Estate of Hendren, 459 N.E.2d 437, 442 (Ind. Ct. App. 1984) (evidentiary requirement of intestacy statute
was met where paternity finding was based upon putative father's written acknowledgment
of paternity). Furthermore, the Supreme Court of Indiana has indicated that the intestacy
statute also allows for the use of a paternity finding which is based on “corroborative”
evidence or circumstances alone, i.e., the mother's testimony is not essential. See Burnett, 255 N.E.2d at 651 (“As we noted in our original opinion, the inheritance statute
specifies the quantum of proof necessary, to wit: the evidence of the mother and/or
other corroborative evidence or circumstances.”) (emphasis added). Thus, even if Corvetta's
mother were not to provide testimony indicating that Mr. D~ is Corvetta's father,
the letter alone would suffice to prove paternity for the purpose of establishing
inheritance rights in Indiana. See Burnett, 255 N.E.2d at 651; Hendren, 459 N.E.2d at 442.
Thus, based on her ability to establish paternity with the corroborative evidence
she has, i.e., the letter from Mr. D~ acknowledges paternity, and her mother's likely
testimony, it appears that Corvetta would be able to establish her right to inherit
from Mr. D~ under Indiana law. See Ind. Code. Ann. § 29-1-2-7(b), (c), and (d); Hendren, 459 N.E.2d at 442. She therefore
has established entitlement to child's benefits on Mr. D~'s account. 42 U.S.C. § 416(h)(2)(A).
You have asked whether the Commissioner may challenge the Illinois Court's Order based
on the question of whether the paternity issue was genuinely contested in the Illinois
Court. The Commissioner's decision to award child's benefits to Corvetta does not
require resolution of this issue. As you have acknowledged, the Commissioner should
accept state court determinations on matters of domestic relations where, among other
things, the issue was genuinely contested by parties with opposing interests. See Social Security Ruling (SSR) 83-37c, 1983-1991 Soc.Sec.Rep.Ser. 127 (1983), adopting
Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); POMS GN 00306.001.C.3. However, in this case, the Agency is not relying on the Illinois judgment to
establish the child relationship. Rather, the Agency is relying on Indiana inheritance
law to establish the child relationship. You also have indicated that you are trying
to establish a biological relationship pursuant to 42 U.S.C. § 416(h)(3). Such an
analysis also is not necessary in this case, since we have determined that Corvetta
is entitled to child's benefits pursuant to Indiana inheritance law. 42 U.S.C. § 416(h)(2)(A).
So long as Corvetta could establish paternity according to the evidentiary requirements
of the Indiana intestacy statute, we need not determine whether SSA would consider
the Illinois judgment or the written acknowledgment sufficient to establish the child
relationship under Federal standards.
We conclude that it is not clear, under Indiana law, whether Corvetta could establish
inheritance rights based upon the Illinois Order; further development would be needed
to determine what evidence, if any, the Illinois judgment was based upon. However,
we conclude that Corvetta W~ has established entitlement to child's benefits on Mr.
D~'s account, because she can inherit from him under Indiana law based on her ability
to establish paternity with the corroborative evidence she has, i.e., the signed letter
from Mr. D~ in which he acknowledges that he is her father, and her mother's probable
We note that it appears that original documents from the claims file were sent to
our office. We are returning those documents to you now. We further note, incidentally,
that the child support enforcement documents indicate that Mr. D~ (who apparently
receives DIB) was working at Oak Lawn Lodge, in Oak Lawn, Illinois, as least as of
October 1, 2000.
Thomas W. C~
Chief Counsel, Region V
By: Sara E. Z~
Assistant Regional Counsel