You have requested our opinion as to the appropriate legal standard to be used in
determining a child's inheritance rights under South Carolina law. Specifically, you
have inquired as to whether, in light of the preamble language to 20 C.F.R. §404.354(b)
and the South Carolina legislature's actions in 1985 and 1986, some kind of court
adjudication prior to the wage earner's death is required for an illegitimate child
to establish inheritance rights. Further, you have inquired as to the standard to
be applied in determining whether an illegitimate child has inheritance rights under
South Carolina law during the period from April 26, 1977, through 3une 20, 1985, in
view of the decision of the United States District Court for the District of South
Carolina in Quattlebaum v. Bowen, C.A.No.3:85-2952-3 (8/7/86).
In our opinion of March 12, 1985 (Mazie, - RAIV [W~] - to ARC, Progs., Atl.), we noted
that the South Carolina Supreme Court in Wilson v. Jones, 314 S.E.2d 341 (1984), held that pursuant to Trimble v. Gordon, 430 U.S. 762 (1977), the limitation in Section 21-3-30 of the Code of Laws of South
Carolina 1976 allowing illegitimate children to inherit only from their mother's estates
was unconstitutional. The W~ court further held that T~ should not be given retroactive effect and, therefore, that only those illegitimate
children whose fathers died after April 26, 1977, would inherit from their fathers'
estates. We concluded that an illegitimate child could inherit from his father if
the father died on or after April 26, 1977, and paternity was established by a preponderance
of the evidence, the evidentiary standard applied by South Carolina courts in paternity
Effective July 1, 1987, the South Carolina statute governing inheritance by illegitimates,
Section 21-3-30, was amended by the 1986 South Carolina legislature. The amended statute,
in pertinent part, provides that:
"Any illegitimate child whose father dies intestate possessed of any real or personal
property is an heir-at-law if paternity has been established by order or decree of
a court of competent jurisdiction during the lifetime of the father or the father
has signed an instrument acknowledging the child as his."
This 1986 amendment follows an earlier amendment effective June 20, 1985, which had
made grammatical changes in the preceding statute and which had added the above-referenced
paragraph. Neither the 1985 nor the 1986 amendment was given retroactive application
by the South Carolina legislature.
With respect to whether the amended statute should be applied in determining whether
an illegitimate child has inheritance rights under South Carolina law during the period
from April 26, 1977 (the date of the T~ decision), through June 20, 1985 (the effective date of the 1985 amendment to Section
21-3-30), our opinion is that it should not, but rather that the preponderance of
the evidence standard set forth in our March 12, 1985, opinion should be applied when
the wage earner died during said period. As referenced in your opinion request, the
comments segment prefacing the final rule found in 49 F.Reg. 21513, May 22, 1984,
amending 20 C.F.R. §404.354(b), reads, in pertinent part:
"... Therefore, while our starting point is always the State law that was in effect
when the worker died, we will also look to see if that law was later declared unconstitutional
by the State court. If it has been, then, in those limited situations, we will apply
the State's later interpretation of what that date-of-death law should have been."
We have found no cases involving an interpretation by the South Carolina courts as
to what the date-of-death law should have been during the interim period 1977 to 1985.
Thus, the Secretary is under a statutory compulsion, as provided in 42 U.S.C. §416(h)(2)(A),
to determine what the courts of South Carolina would find if addressing this issue.
As stated in Cain v. Secretary of Health, Education, and Welfare, 377 F.2d 55 (S.Ca. 1967), §416(h) contemplates that the Secretary determine the
law of the State as it has been determined by the Supreme Court of the State, or where,
the Supreme Court has not, as here, had occasion to declare the law, the Secretary
may base his decision on what the "Supreme Court" would find were the issue before
You have also referenced the above-cited Q~ case wherein the United States District Court for the District of South Carolina
discussed the cumulative evidence including photographs and a writing of the wage
earner who died in 1982 and found this evidence insufficient to meet the requirement
of a written acknowledgment of paternity. The district court judge, without specifically
considering South Carolina's intestacy law, adopted and incorporated the Magistrate's
findings and recommendation affirming the Secretary's decision to deny child's insurance
benefits. The Magistrate, in his Report and Recommendation, did discuss South Carolina's
intestacy law and indicated that the remand of a Fourth Circuit case, Jones v. Schweiker, 668 F.2d 755 (4th Cir. 1981), cert. granted, 459 U.S. 965 (1982), vacated and remanded,
460 U.S. 1077 (1983),
"suggests to this Magistrate that when a State's intestacy statute is declared unconstitutional,
but is subsequently amended, one should reconsider the situation under the amended
statute (emphasis added)."
The Magistrate concluded that under the 1985 amendment to South Carolina's intestacy
statute the plaintiff could be eligible to inherit from her father if she could present
either a court order or decree establishing paternity; however, the Magistrate noted
that the plaintiff, having neither, did not press her eligibility under this provision.
The Magistrate proceeded to address the written acknowledgment of paternity issue
upon which the Q~ case was ultimately decided.
The federal district court's holding in the Q~ case denying the plaintiff benefits is not, in our view, based upon an application
of South Carolina's intestacy law but rather on consideration of written acknowledgment
and, further, is not determinative of what a South Carolina court would find were
the instant issue before it. State courts are not bound to follow the decision of
a federal court dealing with State law, although a federal decision dealing with State.
law may have persuasive effect in the respective State jurisdiction. Glenn v. Field Packing Company, 290 U.S. 177; Hawks v. Hamill, 288 U.S. 52; Re Nearing Before Joint Legislative Committee, 196 S.E. 164 (S.C. 1938).
In our opinion, during the period from April 26, 1977, through June 20, 1985, any
child who could establish paternity by the appropriate evidentiary standard, a preponderance
of the evidence, could inherit from his father in an intestate proceeding as if he
were a legitimate child there being no constitutional statute providing otherwise.
The United States Supreme Court recently held in Rivera v. Minnich, 107 S.Ct. 3001 (1987) that due process was satisfied by preponderance of evidence
standard in paternity proceedings. Although the case arose in the State of Pennsylvania,
the Supreme Court observed, at 3003, that the preponderance of the evidence standard,
"... is the same standard that is applied in paternity litigation in the majority
of American jurisdictions that regard such proceedings as civil in nature."
In keeping with the majority of American jurisdictions, in South Carolina, on appeal
from the Family Court, the issue of paternity is determined in keeping with the court's
view of a preponderance of the evidence. Albert v. Blackwell, 311 S.E.2d 101 (S.C. App. 1984). Further, it is noted that our opinion is in accord
with that of the Office of the Attorney General for the State of South Carolina as
set forth in Attorney General's Opinion No. 85-9 (copy attached). With respect to
the issue raised therein of possibly requiring a higher degree of proof following
the death of the putative father, as no South Carolina cases are cited for the proposition
and no definite conclusion is reached, a preponderance of the evidence apparently
continues to be the appropriate standard.
It is our conclusion that the amended statute allowing an illegitimate child to inherit
from his father's estate if paternity was established by order or decree of a court
of competent jurisdiction during the lifetime of the father or if the father signed
an instrument acknowledging the child as his is applicable to all such claims wherein
the insured worker died on or after June 20, 1985. 20 C.F.R. §404.354(b). With respect
to the period between April 26, 1977, and June 19, 1985, it is our opinion that the
correct evidentiary standard for establishing paternity remains a preponderance of