Under Florida intestacy law the following evidence may be used to establish the claimant is the number holder’s child:

1. Claimant provided SSA with a notarized affidavit NH signed on October 26, 2011, acknowledging that he is Claimant’s biological father.

2. NH also called Claimant while a claims representative was interviewing Claimant.

3. Claimant’s mother completed a Child Relationship Statement on January 17, 2012, indicating NH is Claimant’s father and

4. NH signed a paper at the hospital stating he was Claimant's father.

QUESTION

In connection with a legal opinion you are preparing for your regional office, you asked whether the evidence presented in this case establishes the claimant as the child of the number holder under Florida intestacy law for the purposes of determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record. ^[1]

OPINION

We believe the evidence provided establishes the claimant is the number holder’s child under Florida intestacy law.

BACKGROUND

Kevin (Claimant) was born on January, in Queens, New York. Claimant’s birth certificate did not identify anyone as his father.

Gilberto, the number holder (NH) filed for Social Security disability insurance benefits (DIB) on October 20, 2000. In his DIB application, NH mentioned his wife, Petra, and a son, Evert, but did not mention Claimant. Both NH’s wife and NH’s son Evert filed for benefits on NH’s record at that time. SSA awarded NH DIB in April 2003, paid retroactively to December 2000.

On November 1, 2011, Claimant filed for CIB on NH’s earnings record. Claimant stated NH sent him to the local Social Security Administration (SSA) office to file for the benefits because NH was his father. Claimant provided SSA with a notarized affidavit NH signed on October 26, 2011, acknowledging that he is Claimant’s biological father. NH also called Claimant while a claims representative was interviewing Claimant. The claims representative interviewing Claimant asked NH why he did not mention Claimant as his son in his past benefit applications, and NH responded that he had lost contact with Claimant’s mother. Claimant’s mother, who was also at the interview, agreed NH was Claimant’s father.

Claimant’s mother completed a Child Relationship Statement on January 17, 2012, indicating NH is Claimant’s father. Claimant’s mother indicated NH was never decreed by a court to be Claimant’s father, nor was he ordered by a court to contribute to Claimant’s support. However, she indicated NH had written letter(s) in which he may have referred to Claimant as a son or referred to himself as Claimant’s father, there was other written evidence that would show Claimant was NH’s son, and NH admitted orally to someone else that he was Claimant’s father. Claimant’s mother did not provide further detail regarding these form responses.

Also on January 17, 2012, Claimant’s mother provided another statement in which she reported she and NH had dated from 1993 to 1997. Claimant’s mother said she never lived with NH, but NH took her to prenatal and pediatric doctors’ appointments, though he never went inside the office. Claimant’s mother stated NH signed a paper at the hospital stating he was Claimant's father, visited her at the hospital when Claimant was born, and gave her money for Claimant when she asked. Claimant’s mother reported she lost all contact with and assistance from NH when Claimant was three and a half years old. She further stated she received public assistance for Claimant but no child support because she did not have NH’s Social Security number. She stated she did not have any contact with NH until approximately August or September 2011, when he contacted her and Claimant by phone.

On January 18, 2012, NH provided a statement in which he indicated Claimant is his biological son. NH stated Claimant’s mother informed him she was pregnant, and informed him he was Claimant’s father when Claimant was born. NH reported he continued to see Claimant’s mother until Claimant was about two and a half years old. NH also stated he never lived with Claimant’s mother, never took Claimant to a doctor or school, and never took care of Claimant. NH also reported Claimant’s mother moved away and he lost contact with her and Claimant around 1996. NH stated Claimant’s mother never requested child support from him. NH claimed he did not mention Claimant when he applied for DIB because he believed Claimant’s mother was married to someone else, he did not have her authorization, and he did not want to create any problems for her.

NH also signed an Acknowledgment of Paternity form (a form of the New York City Department of Health & Mental Hygiene) on February 14, 2012. Claimant’s mother signed this form on March 3, 2012, but no witness signed the form.

In March 2012, a field office determined Claimant’s mother was married to Jorge when Claimant was born. Claimant’s mother and Jorge separated in 2000 or 2001, but never divorced, to her knowledge.

According to the information provided, NH currently lives in Florida and lived there when Claimant applied for CIB on NH’s earning record.

DISCUSSION

Under the Social Security Act (Act), a claimant who is aged eighteen years or older may qualify for CIB on the earnings record of an individual entitled to DIB if the claimant is the individual’s “child” and the claimant is under a disability that began before age 22 or is under age 19 and a full-time elementary or secondary school student. See Act § 202(d); 20 C.F.R. § 404.350 (2011). ^[2] “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354. A claimant may show he is “the child” of an individual entitled to DIB, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(B) of the Act.

Under section 216(h)(2)(A), a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when the claimant applied for benefits. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989). Because NH was domiciled in Florida when Claimant applied for CIB on NH’s earnings record, we look to Florida intestacy law to determine whether Claimant is NH’s child for the purposes of section 216(h)(2)(A) of the Act.

Under the Florida Probate Code, ^[3] “[a]ny part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs” and the “decedent’s death is the event that vests the heirs’ right to the decedent’s intestate property.” Fla. Stat. Ann. § 732.101 (West 2011). “Heirs” are “those persons . . . who are entitled under the statutes of intestate succession to the property of a decedent.” Fla. Stat. Ann. § 731.201(20) (West 2011). “Child” includes “a person entitled to take as a child under this code by intestate succession from the parent whose relationship is involved, and excludes any person who is only a stepchild, a foster child, a grandchild, or a more remote descendent.” Fla. Stat. Ann. § 731.201(3) (West 2011).

A strong presumption exists in Florida law that a child born in wedlock is legitimate, i.e., the husband is the father of the child. See Nevitt v. Bonomo, 53 So. 3d 1078, 1081 (Fla. Dist. Ct. App. 2010); In re Estate of R~, 520 So. 2d 99, 101 (Fla. Dist. Ct. App. 1988). “This presumption of legitimacy is one of the strongest rebuttable presumptions known to law.” Dep’t of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006) (internal quotation marks omitted). Although Claimant’s birth certificate did not identify Jorge as his father, Florida intestacy law would presume Jorge to be Claimant’s “legal father” because Jorge was married to Claimant’s mother when Claimant was born. See Lander v. Smith, 906 So. 2d 1130, 1131 n.1 (Fla. Dist. Ct. App. 2005).

A person alleging paternity by someone outside the marriage must present “clear and satisfactory” evidence to overcome the presumption. R~, 520 So. 2d at 101. “In general, the presumption will not be overcome ‘unless common sense and reason are outraged by applying it to the case at hand.’” L~, 906 So. 2d at 1133 (quoting Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305, 309 (Fla. 1993)). “This means that ‘there must be a clear and compelling reason based primarily on the child’s best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father.’” Id. (quoting P~, 617 So. 2d at 309).

NH provided multiple signed, written acknowledgments that he is Claimant’s natural father, including a signed, notarized acknowledgment of paternity. Florida intestacy law provides that for the purposes of intestate succession, a person born out of wedlock is the lineal descendant of his or her father if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father.

(c) The paternity of the father is acknowledged in writing by the father.

Fla. Stat. Ann. § 732.108 (West 2011). Although this statute refers to determining paternity for a person “born out of wedlock,” Florida courts have applied this statute where a child born in wedlock alleges paternity by someone not a part of the marriage, for inheritance purposes. See B~, 880 F.2d at 321 (citing R~, 520 So. 2d at 101-02; Williams v. Estate of Long, 338 So. 2d 563, 567 (1976); In re Estate of J~, 339 So. 2d 237, 239 (Fla. Dist. Ct. App. 1976)). The court in R~ conceded the bare language of Fla. Stat. Ann. § 732.108 did not fit a factual situation in which a child born in wedlock sought to establish paternity for heirship purposes, but the court ultimately concluded there was no error in applying it to such a factual situation. See R~, 520 So. 2d at 102. In doing so, the R~ court noted “a statute legitimating children for inheritance purposes is to be liberally construed to effectuate its purpose.” Id. The R~ court then upheld the lower court’s decision finding that a child had overcome the presumption of legitimacy and established herself as an heir to her biological father, where the biological father had acknowledged his paternity in writing and orally on numerous occasions and contributed to the child’s support. See id. at 100-02.

We believe the evidence Claimant has provided would be sufficient to overcome the presumption that Jorge is Claimant’s father. Similar to R~, NH acknowledged his paternity in writing in numerous documents. Claimant’s mother also indicated NH orally acknowledged his paternity and provided financial assistance for Claimant when Claimant’s mother asked, albeit for only a short time.

We believe a Florida court also would find that it would be in Claimant’s best interest to overcome the presumption of legitimacy in this instance. The record does not indicate Jorge had any relationship with Claimant or provided any financial support for Claimant for over a decade. Thus, overcoming the presumption would not sever any relevant relationship between Claimant and Jorge. See P~, 617 So. 2d at 309 (noting overcoming presumption of legitimacy might be in child's best interest where child has been abandoned by mother's husband and was in need of support); Fernandez v. Fernandez, 857 So. 2d 997, 999 (Fla. Dist. Ct. App. 2003) (finding it in children’s best interests to overcome presumption of legitimacy in part because family was not intact “in a practical sense” and action did not disrupt children’s lives because they had never known mother's husband as integral part of their family life); cf. Callahan v. Dep’t of Revenue, 800 So. 2d 679, 683 (Fla. Dist. Ct. App. 2001) (declining to order a paternity test in an effort to overcome the presumption where the married family was intact).

NH’s affidavit acknowledging his paternity would also be sufficient to establish paternity for the purposes of intestate succession under Fla. Stat. Ann. § 732.108. ^[4] Florida courts have held such evidence satisfies the requirements to establish paternity under Fla. Stat. Ann. § 732.108(c). ^[5] See Holmen v. Holmen by Rahn, 697 So. 2d 866, 867-68 (Fla. Dist. Ct. App. 1997). Although the affidavit in H~ was also filed with the state of Florida, the court in H~ did not attribute any import to the fact that the affidavit was filed, focusing only on the fact that a written acknowledgment existed. See id.

CONCLUSION

Based on the evidence provided and Florida intestacy law, we believe Claimant is NH’s child under Florida intestacy law for the purposes of determining whether Claimant is entitled to CIB on NH’s earnings record. As noted previously, we do not address whether Claimant meets the other requirements for CIB (e.g., whether claimant is disabled or a full-time elementary or secondary student).

Very truly yours,

Mary Ann Sloan
Regional Chief Counsel

Natalie Liem
Assistant Regional Counsel.

Florida would consider these children of a purported Mexican marriage legitimate. The mother and NH reportedly entered into a marriage in Mexico, for which some documentation was provided. There is no indication that either was not free to marry. Even if the marriage were void, Florida would recognize the marriage because it was followed by the couple holding themselves out as married, holding property, and raising two children. Additionally, the children's mother and the NH may have been married under Iowa common law. Even if considered illegitimate, the children could inherit under Florida law, or qualify under section 216(h)(3) of the Act, based on court orders of support.

You have requested our opinion as to whether Dimitri and Alec are children of the deceased number holder (NH) Daniel for purposes of entitlement to child's insurance benefits.

Vivian is the mother of Dimitri and Alec . On April 2, 1999, Vivian's attorney, Clarence., provided the following information in connection with Vivian's withdrawal of her request for an SSA administrative hearing. Vivian believes she married the NH in Mexico in 1968. The record contains a receipt dated July 20, 1968, from Jose, “in charge of Foreign Affairs,” Tijuana, Baja California, Mexico, acknowledging receipt of fifteen dollars from the NH and Vivian for service in representing and completing “Their Marriage Transactions Before the Proper authorities.” This receipt was filed with the Circuit Court for Lee County, Florida. On her October 8, 1982, Petition for Dissolution of Marriage, in the Circuit Court for Lee County, Florida, Vivian states that she and the NH married on July 27, 1968, in Tijuana, Mexico, and that Dimitri and Alec were born of the marriage.

Until 1999, no one denied the validity of their marriage or questioned the NH's paternity of her sons or of a first child who was stillborn in 1968. Alec states that when Vivian filed in 1982 for divorce in Florida, the court ordered the NH to pay temporary, and possibly permanent, child support. Alec states that according to the record, the divorce decree was set aside for jurisdictional reasons, but that the NH did not deny, by responsive pleading or otherwise, the validity of his marriage or the children's paternity. The record indicates that on September 17, 1984, the Circuit Court for Lee County, Florida, issued an Order Setting Aside Final Judgment of Dissolution, and the court ordered the NH to pay child support and medical bills on behalf of Dimitri and Alec. When a settlement agreement was reached between the parties, divorce proceedings were dismissed without a determination of the validity of their marriage or the paternity of the children. On July 15, 1985, the Circuit Court Clerk for Lee County, Florida, certified a Stipulated Settlement of Lawsuit Property and Child Custody Rights.

Alec said he believed that even if a Mexican marriage could not be established, Vivian and the NH were married under Iowa common law. Alec said he presented Vivian's testimony and that of Helen , a distant cousin of Vivian's mother, to establish Vivian's and the NH's general reputation in the Council Bluffs community and among their families as husband and wife. He indicated that had Vivian not withdrawn from the scheduled SSA hearing, he had intended to present additional testimony from the NH's sister and two other persons who knew the NH and Vivian as husband and wife in Council Bluffs.

In a letter dated March 8, 2001, George identified himself as the NH's father and as Dimitri and Alec's grandfather. Daniel stated the NH met Vivian in 1964. Thereafter the NH and Vivian moved to California. After the NH completed aviation school in California, he and Vivian moved into a house together in Council Bluffs, Iowa. The NH told his father that they were married by a Mexican Justice of the Peace. In the mid-70's, Vivian temporarily moved to Greece as she and the NH were “in constant arguments.” She returned to Iowa, and Dimitri was born in 1979. The NH moved his family to Ft. Myers, Florida, where their second son, Alec, was born in 1982. The NH and Vivian eventually separated, with Vivian returning to Iowa. Daniel said he believed that Dimitri and Alec are the NH's biological children, and he submitted his Christmas 2000 newsletter referencing Dimitri and Alec as the NH's children.

In a letter dated December 11, 2001, Connie, the NH's sister, reiterated her father's statements that the NH and Vivian met in 1964, and that they were together until 1973, moving together from Iowa to California in 1968. During 1968, Vivian had a stillborn baby, and the NH's father flew to California to bring the baby “back to Iowa to be buried with our family gravesites.” Connie also said the NH and Vivian married in 1968 in Tijuana, Mexico. While in Mexico, they had a bad automobile accident and were held by the Mexican government. The NH's father went to the American Embassy in Mexico to get them returned to the United States. The couple separated in 1974, and Vivian moved to Greece. Vivian later returned to the United States and became pregnant in 1979, giving birth to Dimitri on November. The couple again separated, and the NH moved to Florida. Vivian followed the NH to Florida, where she became pregnant, giving birth to Alec in 1982 in Ft. Myers, Florida. Vivian stayed in Florida until 1984 when she moved back to Iowa. Connie states she “can honestly say that Dimitri and Alec are the real children from my brother.”

Dimitri was born on November, in Omaha, Nebraska, and his Nebraska birth certificate identifies the NH as his father. Alec was born in Fort Myers, Florida, on September, and his Florida Certificate of Live Birth shows the NH as his father. Pursuant to a May 1985, Florida Final Judgment of Name Change, Dimitri and Alec changed their last name to Dimitri. On July 12, 1985, Vivian applied for amendment of Dimitri's birth certificate, changing his father's identity to “unknown,” and reflecting the change of Dimitri's last name to Alec.

The record also contains a July 26, 1994, the County Court, Lee County, Florida, Judgment Satisfaction in the case of Hospital Board of Directors of Lee County v. Daniel G. and Vivian J. D~ showing that the NH and Vivian paid a judgment which had been entered by the court on July 8, 1982. Also, an August 22, 1994, letter from the Iowa Department of Human Services to Vivian addresses the role of a child support recovery attorney and references the wage earner “D.G. .” A subsequent notice from the Iowa Department of Human Services notes that a support order was filed on September 17, 1984, and that the NH was $2,800.00 in arrears.

In a letter dated December 30, 1997, Joy identified herself as the NH's widow and stated that Evan is the NH's son. She stated a stipulated settlement between the NH and Vivian released the NH's estate from subsequent claims. In a subsequent letter dated December 22, 1998, Alec indicated she knew nothing of Vivian except for the contract the NH and Vivian signed “almost 14 years ago.” She stated her husband died in prison in Georgia, leaving her and their son with nothing. NH lived in Florida before his imprisonment.

We believe that Dimitri and Alec are children of the NH for purposes of entitlement to child's insurance benefits.

The Social Security Act, 42 U.S.C. Sec. 416(h)(2)(A), provides that the Commissioner, in determining whether an applicant is the child of an insured individual, shall use the law governing the devolution of intestate personal property applied by the courts of the State in which the insured individual was domiciled at the time of his death. Here, NH, although in prison at the time of his death, was domiciled in Florida. One of the children was born in Florida and both lived there for several years. Accordingly, it appears that Florida courts would look to Florida laws to determine the status of these children. See Memorandum, Florida Choice of Law Issue (H~) to Sandy , June 25, 2001 (attached).

Under Florida law, Dimitri and Alec would likely be considered legitimate children eligible to inherit. Vivian and NH reportedly entered into a marriage in Mexico and some documentation was provided supporting this claim. There is no indication in the record that Vivian or NH was previously married or unable to contract a marriage. Even if the marriage were void, Florida would likely recognize the marriage because it was followed by the couple holding themselves out as married to family, friends and the public, holding property and raising two children. Also, no allegation apparently was made that the marriage was void until Vivian filed her dissolution proceeding. Under these circumstances, a Florida court held that annulment of a Mexican marriage was improper and that the husband was estopped to deny the validity of the marriage. See Lambertini v. Lambertini, 655 So.2d 142 (Fla. App. 1995).

Additionally, Vivian and NH may have been married under the common law of Iowa. Common law marriages cannot be entered into in Florida. Fla. Stat. Ann. Sec. 741.211 (West 2002). However, Florida also would recognize a valid common law marriage established in Iowa. See Compagnoni v. Compagnoni, 591 So.2d 1080 (Fla. App. 1991); American Airlines v. Mejla, 766 So.2d 305 (Fla. App. 2000). Iowa recognizes common law marriages. See Matter of Estate of S~, 519 N.W.2d 97 (Iowa App. 1994). Such a marriage may be established by clear and convincing evidence of intent and agreement to marry, cohabitation, and general and substantial public declarations that the parties are husband and wife. Id.; In re Marriage of G~, 242 N.W.2d 1 (Iowa App. 1976). Here, evidence from NH's family members indicates that Vivian and NH viewed themselves as married, cohabited, and were viewed by the community as a married couple. They appear to have established a valid common law marriage in Iowa that would be recognized in Florida.

Even where no valid marriage results, Florida public policy does not favor penalizing children of an invalid marriage for the actions of their parents. As one Florida court noted, “Such children are the innocent victims of the situation. They should not be deprived of the right to be supported merely because the parents have created the invalidating circumstances.” Burger v. Burger, 166 So.2d 433, 436 (Fla. Sup. Ct. 1964). In that case, both parties obtained Mexican mail-order divorces before obtaining a Mexican proxy marriage. The court held that it had jurisdiction to grant a divorce and provide for support of the children despite the arguable invalidity of the marriage. Accordingly, it appears that Florida would view Dimitri and Alec as legitimate children.

Even if the children were considered illegitimate, they would be entitled to inherit under Florida law. Pursuant to Florida Statutes Annotated Sec. 732.108(2), which defines the inheritance rights of persons born out of wedlock, such persons can inherit from their father if: (a) The natural parents participated in a marriage ceremony before or after the birth, even though the attempted marriage is void; (b) The paternity of the father is established by an adjudication before or after the death of the father; or (c) The paternity of the father is acknowledged in writing by the father. These factors must be established by clear and convincing evidence. See Thurston v. Thurston, 777 So.2d 1001 (Fla. App. 2000). As noted above, both testimony from family members and a document indicate that Vivian and NH participated in a marriage ceremony in Mexico before the birth of the children.

Aside from Florida law, the Social Security Act, 42 U.S.C. 416(h)(3)(C), allows a “deemed child” to receive child's benefits on the account of a deceased father if before his death the father: (I) acknowledged in writing that the child was his; (II) had been decreed by a court to be the father; (III) had been ordered by a court to contribute to the support of the applicant before the death of the father. NH's name was on both of the children's birth certificates when they were born. NH also had been ordered by forums in two jurisdictions (Iowa and Florida) to pay child support. The record appears to contain clear and convincing evidence that Dimitri and Alec are the children of the NH and would be eligible to receive benefits.

Joy submitted a stipulated agreement dated April 17, 1985, in which Vivian waives her right to receive child support or make any claim against NH's estate. However, Vivian could not waive the rights of her children to receive support or share in their father's estate. Florida courts have repeatedly held that a parent cannot waive a child's right to support. In Fleming v. Brown, 581 So.2d 202 (Fla. App. 1991), the court held that a mother could not waive her child's entitlement to support in exchange for the husband's waiver of parental rights; accord, Paris v. Bollon, 503 So.2d 1387 (Fla. App. 1987); see also Shinall v. Pergeorelis, 325 So.2d 431 (Fla. App. 1976) (an illegitimate child's right to support from his putative father cannot be contracted away by its mother and any release executed by her is invalid to the extent that it purports to affect rights of child). Florida courts have also held that a mother cannot waive the right of her children to receive benefits from the father or any other governmental agency. See State of Florida Dept. of Revnue for Payne v. Ortega, 682 So.2d 589, 590 (Fla. App. 1996). Accordingly, this stipulation and agreement would not prevent Dimitri and Alec from receiving child's benefits.

It is our opinion that Dimitri and Alec are children of the NH for purposes of entitlement to child's insurance benefits, whether they are viewed as legitimate or illegitimate children of NH. As legitimate children, Dimitri and Alec would be entitled to benefits from at least six to twelve months before the time of their own applications. See 20 C.F.R. Sec. 404.621(a)(1(i) & (ii) (2001) (applicant for child's benefits may be entitled to benefits for up to six or 12 months before the month in which he or she applies, depending on the eligibility status of the NH). Vivian's 1997 application on the children's behalf was dismissed at her request on April 6, 1999. The dismissal of a request for a hearing is binding unless vacated within 60 days of the date of receipt of the notice. 20 C.F.R. Sec. 404.958 (2001). Determinations may be reopened within four years only if good cause is established. 20 C.F.R. Sec. 404.988 (2001). Good cause may be found by the existence of new and material evidence, clerical error, or clear error in the decision. 20 C.F.R. Sec. 989 (2001). Here, there does not appear to be good cause for re-opening the 1999 dismissal. Thus, benefits would not be payable back to the 1997 application.

Very truly yours,

Mary Ann Sloan
Regional Chief Counsel

Laurie G. R~
Assistant Regional Counsel.