PR 02005.021 Louisiana
A. PR 01-070 Entitlement to Child's Benefits Under Louisiana Law - (NH) Connie L. S~, SSN ~
DATE: September 19, 2000
Due to recently amended Social Security regulations, the claimant's failure to institute a civil proceeding within the required time frame does not bar SSA from considering whether the deceased NH informally acknowledged his paternity.
Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature, and of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the child's father. In this case, the evidence supporting informal acknowledgment does not meet the required clear and convincing evidence standard.
This is in response to your legal opinion request asking our office to address the following issues:
(1) Whether the evidence provided by relatives is sufficient to establish that Connie L. S~ informally acknowledged Reena P~ as his child as required by Louisiana law, and if so, (2) Whether inheritance rights are prospective only under state law. It is our opinion there is not enough credible evidence to establish that Connie L S~ informally acknowledged Reena P~ as his own child. Therefore, the second issue is rendered moot. However, based upon the reasons discussed herein, we believe that a child who establishes filiation to a decedent by clear and convincing evidence is entitled to inheritance rights. Under Louisiana law, inheritance rights vest at the moment of death. La. Civ. Code Ann. Art. 935 & Art. 954 (West 1999). Regardless of when those rights are later asserted, the acquisition of the inheritance rights would relate back to the moment of death. La. Civ. Code Ann. Art. 954, Comment (a) (West 1999).
Mr. S~ died in February 25, 1997, while domiciled in Louisiana. Joann P~ is the mother of Reena P~ who was born on August 22, 1997, at 35 and « weeks in Houma, Terrebonne Parish, Louisiana. Joann P~ has alleged that Mr. S~ fathered Reena P~. Ms. P~ filed a lump sum death benefit and survivor's claim on March 8, 2000, with a protective date of February 1, 2000.
In order to determine whether an applicant is the child of an insured individual, the Commissioner will apply the law of the state of the insured's domicile at the time of his death. Applicants who, according to such law, would have inherited intestate property as a child of the insured will be deemed the child of the insured. 42 U.S.C.A. § 416 (h)(2)(A). At the time of his death, Mr. S~ was domiciled in the state of Louisiana. Thus, for the Claimant to establish eligibility for survivor's benefits on behalf of Reena P~, she must establish that they would be eligible to inherit from Mr. S~ intestate estate under Louisiana state law. See 20 C.F.R. § 404.355 (a)(1), 404.355 (b)(4)(1999).
One way to do this is to establish filiation. There is no evidence that Claimant instituted a civil proceeding on behalf of Reena P~ to establish filiation as required by Louisiana statute.
See La. Civ. Code Ann. Art. 209 (West 1999). However, Claimant's failure to institute a civil proceeding within the required time frame, as specified under Article 209, does not bar the Agency from still considering whether the deceased informally acknowledged his paternity./ Social Security regulations state that if an applicable state inheritance law requires a court determination of paternity, the Agency will not require a claimant to obtain such a determination, but rather, will decide paternity based upon the standard of proof the state court would have used. See 20 C.F.R. § 404.355(b)(2)(1999). This recently amended Social Security regulation also indicates that the Agency will not apply any state law requirement mandating that an action to establish paternity be taken within a specified period of time. Id. This regulation should be applied to any application pending before the Agency on or after its effective date of November 27, 1998. Generally, the law in effect at the time of an administrative determination is controlling, even if it has been amended during the pendency of a proceeding. See Hampton v. Bowen, 785 F.2d 1308, 1310 (5th Cir. 1986)(citing Central Freight Lines v. U.S., 669 F.2d 1063, 1069 (5th Cir. 1982)). See also 2 Am. Jur. 2d Administrative Law § 384 (1994).
Louisiana law on intestate succession provides that the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him. La. Civ. Code Ann. Art. 880 (West 1999). The comment following this article states that, "[O]nce a relationship is proven by blood or adoption, the succession rights of such a relative are established without reference to the legitimacy of that relationship." La. Civ. Code Ann. Art. 880 Comment c (West 1999). Further, inheritance rights vest immediately after the death of the deceased. La. Civ. Code Ann. Art. 940 (West 1999). Thus, if Claimant can establish that Reena P~ is Mr. 's child under Louisiana filiation law, she would be entitled to inherit through intestate succession and would be considered Mr. ~'s child for the purpose of the Act.
Under Louisiana law, "in order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209." See La. Civ. Code Ann. Art. 209 (West 1999).
Because Reena P~ does not enjoy legitimate filiation and was not filiated by the initiative of the parent, we must therefore, look to Article 209 to determine if Claimant has established that Reena P~ is Mr. S~'s daughter. Section B of Article 209 states the following:
A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence...La. Civ. Code Ann. Art.209 (West 1999).
Here, Claimant seeks to prove the filiation to Mr. S~ by showing that Reena P~ was informally acknowledged by the deceased. Informal acknowledgment is not specifically defined or authorized by the Louisiana Civil Code. Instead, it is a product of Louisiana jurisprudence and is included as "proof of filiation" in the comment to Article 209. See Succession of Matte, 346 So.2d 1345, 1349 (La. App. 3rd Cir. 1977); La. Civ. Code Ann. Art. 209 cmt. b (West 1999).
Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature, and of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the father of the child(ren). Thomas v. Smith, 463 So.2d 971, 975 (La. App. 3rd Cir. 1985). Moreover, to prove filiation by clear and convincing evidence, the putative father's actions "must be of such frequency that the trier of fact is convinced that paternity is 'highly probable', i.e., much more probable than its nonexistence." Sudwisher v. Estate of Hoffpauir, 705 So.2d 724, 732 (La. 1997). The determination of whether there has been informal acknowledgment by, or sufficient proof of filiation to, the alleged parent is a factual determination that must be made by reference to the record as a whole. Matte, 346 So.2d at 1350.
The courts in Louisiana have generally indicated what evidence a claimant would need to introduce in order to prove (by the clear and convincing standard) informal acknowledgment of paternity under Article 209. Competent evidence would include, but is not limited to: the father rearing the child in his home, giving the child his surname, holding the child out in the community as his own, giving gifts to the child, causing the education of the child, and acknowledging paternity in formal writings or in public and private conversations. See Estate of Hoffpauir, 705 So.2d at 731.
Louisiana courts are reluctant to recognize informal acknowledgment for purposes of filiation unless the father has recognized the child as his own, unequivocally, and on several occasions. Id. For example, in Succession of Henry C. B~, plaintiffs proved informal acknowledgment by clear and convincing evidence after calling twenty-one witnesses for their side at trial, submitting three favorable depositions in support of their case, introducing birth certificates and a marriage certificate all purporting to indicate that the plaintiffs were informally acknowledged by the deceased. 472 So.2d 578, 582-84 (La. 1985).
In this case, the evidence supporting informal acknowledgment does not meet the clear and convincing standard. A report of contact with Joann P~ dated April 13, 2000, revealed that, according to her recollection, Mr. S~ was living with her when he became ill around October or November 1996, and was admitted to Leonard Chabert Medical Center in Houma, Louisiana. She further stated that the hospital sent Mr. S~ directly to a South LaFourche nursing home where he died. Mr. S~ never went back to live with Joann P~ after becoming ill. However, a report of contact with Ms. Aletha C~ from Leonard Chabert Medical Center dated on April 13, 2000, and May 4, 2000, revealed that Connie S~ was admitted on January 12, 1997, and discharged on January 27, 1997. The hospital records provided no other dates of hospital admissions regarding the deceased wage earner. Therefore, Mr. S~'s actual hospital admission and subsequent nursing home admission probably occurred much later than October and November 1996. Mr. S~ actually had more time to informally acknowledge that he was the father of Joann P~'s unborn baby, if he had intended to do so.
Additionally, there are no official state documents to support Ms. P~'s contention that Connie S~ is the father of Reena P~. The Louisiana birth certificate for Reena P~ does not list the identity of her biological father. Mr. S~'s Louisiana death certificate indicates that he never married, and died of lung cancer on February 25, 1997.
Statements from friends and acquaintances contained in the file do not demonstrate by clear and convincing evidence that Mr. S~ informally acknowledged Reena P~ as his child. A statement from Sidney T~, Jr., who was a friend to the deceased wage earner, stated that Mr. S~ continuously lived with Joann P~ for over a year, until he became sick in the later part of 1996 and had to be hospitalized. Another friend, Audrey M~, stated that Mr. S~ lived with Ms. P~ for over a year until he died. Ms. M~ also indicated that she told Joann P~ to file for Social Security benefits, but that Ms. P~ declined and acted as if she was afraid. Elouise M~ wrote that she knew Mr. S~ for over ten years, and confirmed that the deceased wage earner lived together with Joann P~ for at least a year prior to his death. Ms. M~ indicated that Ms. P~ never filed for survivor benefits on behalf of her daughter Reena because she did not have the deceased wage earner's social security number or death certificate. None of these statements provide relevant information concerning whether Connie S~ ever informally acknowledged that he was the father of Joann P~'s unborn baby. Simply living with someone for over a year is not enough to meet the clear and convincing standard for informal acknowledgment as set out in Hoffpauir, 705 So.2d at 731, and B~ 472 So.2d at 582-84.
Based upon our review of Louisiana law and the facts of this case, it is our opinion that Ms. P~ has not shown by clear and convincing evidence that Mr. S~ informally acknowledged Reena P~ as his child. Therefore, under Louisiana law, the child would not be entitled to inherit from Mr.~'s intestate estate, and would not be entitled to survivor's child benefits.
Next, you asked about Reena P~'s date of entitlement if filiation was established under Louisiana law. The next few paragraphs are informational only, since filiation has not been proven. Social Security regulations state that when the insured is deceased, child's benefits begin with the first month covered by the application in which all other requirements for entitlement are met./ 20 C.F.R. § 404.352 (1999). Where the application was filed after the first month in which the requirements for benefits were met, a child may receive benefits for up to six months immediately before the month in which the application was filed. Benefits will begin with the first month in that six-month period in which all requirements for eligibility were met. 20 C.F.R. § 404.621(a)(ii)(1999). If a child meets the age and dependency requirements on the date of her application and for the previous six months, the only issue affecting date of entitlement involves the date when the claimant was first considered the deceased wage earner's "child" under the Act. In other words, beginning on what date was the claimant's relationship to the deceased wage earner proven pursuant to § 216(h)(2)(A) of the Act?
As earlier discussed, a child who establishes filiation to a decedent by clear and convincing evidence is entitled to inheritance rights. Under Louisiana law, inheritance rights vest at the moment of death. La. Civ. Code Ann. Art. 935 & Art. 954 (West 1999). Regardless of when those rights are later asserted, the acquisition of the inheritance rights relates back to the moment of death. La. Civ. Code Ann. Art. 954, Comment (a) (West 1999). However, retroactivity of benefits is not an issue in this case because the deceased wage earner never informally acknowledged that he was the father of Reena P~ before he passed away.