Your February XX, 1984 request for a legal opinion in this matter asked whether under
Illinois law a probate court "declaration of heirship" is sufficient to rebut the
presumption of legitimacy. Although a declaration of heirship may serve to rebut the
presumption, the one here does not, as explained below.
Therefore, the denial of child's survivor benefits to claimant may not be based under
on the conclusion 42 U.S.C. 402(d)(3) and 416(h)(2)(A) that he is neither the legitimate
child nor intestate heir of the deceased wage earner (DWE) by virtue of the declaration
of heirs that does not include claimant. However, we clarify below the standard for
determining whether claimant is the DWE's legitimate child and for rebutting the presumption
of legitimacy because your request suggests that you might be applying a more stringent
test than that required by law.
RELEVANT FACTS
Claimant Allen M. T~ was born in 1975 to Norma B~ T~. His birth certificate gives
no identity for the father but does give an age, 35.
Although the marital history of the DWE is less than clear cut, you appear to have
concluded that a valid marriage existed between Norma B~ T~ and the DWE (under the
name of L.G. T~) since 1958 that was never terminated by divorce. The DWE died in
1983. Thus, claimant, as issue of a valid marriage, is presumed to be legitimate under
Illinois law. He is thus both the legitimate child and intestate heir of the DWE for
purposes of child's survivor benefits under §§ 202(d)(3) and 216(h)(2)(A) respectively
of the Social Security Act. If claimant were not legitimate, no basis exists for awarding
benefits under either §216(h)(2)(A) as the DWE's intestate heir or Washington, ARCthe
alternative "federal law tests" of §216(h)(3)(c).
There is substantial reason to doubt that claimant is the son of the DWE, who was
born in 1925. The DWE's age at time of claimant's birth in 1975 was thus 50, and not
35 as the certificate shows. (Norma T~ was 34 in 1975.) In contrast, the birth certificate
for Rogena, another child of the DWE and claimant's mother, gives both the DWE's name
and his correct age at the time.
In addition, claimant's birth certificate gives as one of the two middle names, "Modell,"
the other being Maurice. "Modell" might well be a surname, but it was not the mother's
maiden name. "Modell" could be the surname of a father other than the husband.
There is no evidence that claimant was ever acknowledged in any way by the DWE. Although
he did not list claimant on a December, 1982 disability benefits application, neither
did he list Rogena or two other children, Michael and Ramona, all of whom have been
declared his heirs. He then listed one such child, Robert, and two other children
whose mother, Sadie M~, says are not his. Claiming paternity of the children of women
with whom he was involved was apparently a habit of the DWE. Ms. M~, with whom the
DWE was living prior to her death and who knew the DWE for twelve years (before Allen's
birth but after Rogena's) reports him as mentioning Robert, Michael, and Ramona as
his children, but never Rogena or Allen.
Rogena and Allen have been in the custody of a friend of their mother, Mary B~, since
the mother's death in 1979. These two women promised to care for the other's children
should one of them die. The friend reports knowing the mother since 1957, prior to
the marriage. Yet even she says that the mother never actually said that the DWE was
Allen's father; she simply assumed it because of the marriage.
The DWE's siblings and children have been either uncooperative or unavailable. Two
children have spoken indirectly, however. Michael obtained the declaration of heirship
that lists only Robert, Michael, Ramona and Rogena. A letter from B~'s lawyer states
that Ramona filed a separate child's survivor benefits claim on behalf of her sister
Rogena but not, apparently, Allen. {Mary B~ filed on behalf of Allen and Rogena.)
The DWE's obituary lists 10 children, including the four above T~ 's, but no Allen.
(Two of the other six are the two children of his last girlfriend, Sadie M~, who were
not his children.}
Your request states that the DWE and the mother were separated at the time of claimant's
birth. The basis for this conclusion is unclear. Mary B~ states that she is unaware
exactly when they separated. On his 1982 disability application, the DWE reported
a common law marriage to another woman, beginning after his claimed 1957 divorce from
yet another woman, until they separated in 1981. The marriage of claimant's mother
was in 1958. We could find no other basis in the file for your conclusion concerning
when the DWE and claimant's mother were together and when they were not. You might
wish to clarify your basis.
Additional facts are discussed in the analysis, as appropriate.
ANALYSIS
1. Valid Marriage
There is no evidence to show claimant was the child of the DWE other than the fact
of the marriage to claimant's mother, who was married in 1958 to L.G. T~ . Sadie M~
said she never knew the DWE, Grady L. T~, in 12 years to use that name but speculated
he might have done so in "shady" dealings. The 1958 marriage license indicates that
L.G. T~ was 25. The DWE was 33 in 1958. Norma T~'s death certificate lists her husband
as Grady T~ , and Mary B~ appears to have believed Norma B~ and Grady T~ were husband
and wife.
There is evidence that DWE was the father of Rogena, Allen's sister, and we take no
issue with the finding that she is his child, legitimate or illegitimate, and entitled
to benefits. This does not show that he was claimant's father or married to her mother.
Sadie M~ also reported that the DWE was a "wanderer," with a number of other paramours
even during their relationship.
You may wish to reconsider your conclusion that there was a marriage between the DWE
and claimant's mother. We see no evidence to directly support it, and some -- the
different name and age on the marriage license -- to doubt it. The DWE's report of
a common law marriage to a different woman beginning at the same time and lasting
until 1981 also adds to the doubt.
The file makes evident your considerable efforts to be more precise about these matters.
But if there was no marriage to DWE, no presumption of legitimacy attaches to Allen
as his son (although Allen would be the presumed legitimate child of L.G. T~). Since
there is no other evidence that Allen is the DWE's child, he would have no claim to
benefits on the basis of Grady L. T~ .
2. Effect of Declaration of Heirship on Presumption of Legitimacy
Under Illinois law, the presumption of legitimacy may be rebutted by clear and convincing
evidence. In re Adoption of McFadden, 438 N.E.2d 1362 (Ill. App. 1982), c~ denied,
McFayden v. Shure, U.S., 103 S.Ct. 1259 (1983); Happel v. Mecklenburger, 427 N.E.2d 974 (Ill. App. 1981); People v. Mitchell, 412 'N.E.2d 678 (Ill. App. 1980). See Curtis Bush, ~, RA-V (D~) to RC, SSA-V (D~), 1/13/81.
In this matter, the declaration of heirship did not include Allen. You may consider
this factor in rebutting the presumption, but to do so you may not rely on the court
order by itself. You must go behind the declaration.
This office has previously addressed the issue of whether the Secretary is bound by
state court judgments. Lamont D. M~,RA-V
RA-V (D~) to ARC-Programs V (W~), 6/9/82, and prior memoranda cited therein. Consistent
with the criteria set forth by the Court of Appeals for the Sixth Circuit, the Secretary
is not free to ignore a state trial court decision on an issue involved in a claim
for social security benefits where (1) the issue was decided by a state court of competent
jurisdiction; (2) the issue was genuinely contested by parties with opposing interests;
(3) the issue falls within the general category of domestic relations law; and (4)
the resolution by the state trial court is consistent with the law enunciated by the
highest court in the state. Dennis v. Railroad Retirement Board, 585 F.2d 151 {6th Cir. 1978); Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973).
The decision in Gray has been adopted by SSA. SSR 83-37c (Jul. 1983). All four criteria need not be met
for the Secretary to accept a state trial court decision. [14] In this matter, however, there are two reasons why the state court decision cannot
be honored.
First, without knowing the reasons why Allen is not included among the heirs, we cannot
determine whether or not his "exclusion" is consistent with the law as enunciated
by the State's highest court. It may well be that the court never considered whether
Allen was an heir.
The second shortcoming is related to the first. There is no indication that Allen
was represented in the heirship proceeding to contest his exclusion. It is more likely
that he was not. If so, there was no genuine contest, and there is no competing factor,
e.g., notice to Allen and his legal guardian, and a knowing voluntary waiver of the
opportunity to contest, that can compensate for the absence of a contest. [15]
Therefore, unless claimant's claim to be a heir of the DWE was advanced before the
probate court and rejected based on reasoning that is consistent with Illinois law
discussed infra, the declaration of heirship cannot rebut the presumption of legitimacy.
3. Whether The Presumption of Legitimacy Is Rebutted by Clear and Convincing Evidence
Your request for a legal opinion raised the effect of the declaration of heirship
because you were not able to otherwise rebut the presumption of legitimacy. You might
wish to reconsider whether you have applied too stringent a standard.
Your request also states that the NH and the claimant's mother were separated at the
time of birth. Although we have suggested that you clarify the basis for this conclusion,
our analysis below assumes that you continue to adhere to that conclusion.
a) POMS Criteria
POMS GN 306.050 states generally that the presumption of legitimacy may be considered
rebutted if the husband was consistently absent when the child must have been conceived.
POMS GN 306.055 provides that doubt as to the presumption is raised by two factors
which are present here: the relatives dispute it (Michael T~, by not including Allen
in the heirship declaration, Ramona T~ , by filing for benefits on behalf of Rogena
but not Allen), and the birth certificate does not name the husband. Under POMS GN
306.060, which then applies, relevant evidence includes the continuity of the relationship,
whereabouts and circumstances during conception. §306.060 also accords weight to statements
of friends and neighbors "in a position to know."
Thus, if you are satisfied that the NH and claimant's mother were separated, the presumption
is rebutted so long as your evidence is clear and convincing. The clear and convincing
quantum may be comprised, however, of evidence in addition to that for the fact of
separation. You have, for example, the fact that the mother's friend since before
the marriage, with whom she was close enough to exchange mutual vows to take care
of the other's children, did not actually know whether the NH is the child's father.
If he had been, we suggest that she was a person "in a position to know."
b) Illinois Law
Under Illinois law, one test is the same as one under POMS. The presumption may be
rebutted simply by sufficient evidence that the husband and wife did not cohabit at
relevant times prior to the child's birth. Happel v. Mecklenburger, supra, 427 N.E.2d at 974. The most frequent explanation "of the clear" and convincing
standard is this context is " the quantum of proof which leaves no reasonable doubt
in the mind of the trier of fact." People v. Mitchell, supra; "Effect of Illinois Law, etc," supra.
The court in Happel also explained that the evidence to rebut the presumption must be "clear and irrefragable,"
that is, uncontroverted. In a related context, to establish paternity rather than
to rebut it, we have interpreted the clear and convincing standard to require "a broad
range of convincing evidence which reveals no significant contradiction." "Effect
of Illinois law, etc," supra. Applying that test here, this means these can be no
credible evidence that Allen is the son of the NH if you are to rebut the presumption.
c) Application to this case
We think that there is no credible evidence that Allen is the son of Grady L. T~;
there is only the presumption. The question remains whether the evidence that he is
not the son meets the standards we have mentioned. You should ask yourself whether
after considering all that you know, you have any reasonable doubt whether Allen is
not the NH's son, and whether this conclusion is based on a broad range of evidence.
The range of evidence here includes: the NH's name not on claimant's birth certificate,
in contrast to Rogena's; the discrepancy in age given for the father on that certificate;
the treatment of Allen as not the NH's son by the NH (on the disability application
and with Sadie M~ , by Ramona (on the benefits application), by Michael (in the declaration
of heirship), and in the obituary; the lack of certainty by the mother's friend; the
separation of claimant's mother and the NH (including his apparent "common law marriage"
to another woman during that period). We point out that the NH's treatment of Allen
as not his son is due less weight since he treated Michael and Ramona, and Rogena,
similarly on one or more of those occasions.
Unless the children or other relatives provide more cooperation than previously, we
anticipate that you might be faced with an imprecise conclusion with regard to the
separation of the mother and the NH. This raises the question whether, under Illinois
law, the presumption of legitimacy can be rebutted by evidence that is not clear and
convincing with regard to the question of access.
There is no clear guidance. In weighing paternity decisions, courts have given weight
to some factors present here. Cody v. Johnson, 415 N.E.2d 1131, 1134 (Ill. App. 1980) [whether child is mentioned in obituary];
Morelli v. Battelli, 386 N.E.2d 328, 330-332 (Ill. App. 1979) [alleged father referred to other's children
as his, long time acquaintances did not support paternity].
However, we have found no Illinois case where the evidence rebutting the presumption
did not include proof of non-access by the husband. Where the husband's absence was
proved only in general, e.g., did not live together, had not seen for 10 years, there
was also evidence of access during the relevant time by an alleged father other than
the husband. People v. Mitchell, supra; People v. Cobb, 337 N.E.2d 313 (Ill. App. 1975). Here there is no such alternative father.
The trend in Illinois law has been to make it easier to rebut the presumption of legitimacy.
People v. Mitchell, supra. The requirement that proof include non-access by the husband in some fashion
appears to be a non-waivable element, however. Happel v. Mecklenburger, supra, 427 N.E.2d at 979. Thus, so long as you are satisfied there was a marriage
between claimant's mother and the NH, you must also be satisfied that they were separated
when claimant was conceived in order to rebut the presumption of legitimacy and deny
benefits.
If after further consideration, your conclusion on separation is no more precise than
now, we would recommend that you err on side of concluding that the presumption is
not rebutted. It appears to us that the most likely source of information with regard
to where the DWE was living in 1974 is Sadie M~. In addition, you might ask Mary B~
and Rogena whether Norma T~ knew anyone with the surname M~.
d) Consistency with the Statute
Thus, if the evidence of non-cohabitation is inconclusive, you appear required to
award benefits based on the presumption alone even where the evidence otherwise strongly
supports the conclusion that claimant was not the NH's son, and more important, was
not living with or being supported by the NH at the time of his death. Although this
result is at odds with the spirit of the statute, it is not in conflict with its letter,
as established by Congress and implemented by the Secretary.
In Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755 (1976), the Court held that each of the classifications
under the statute -- legitimate and illegitimate, inheritance under state intestacy
law, the "federal law" tests, etc. --represent Congressional judgments establishing
criteria which give rise to a reasonable presumption of dependency. 427 U.S. at 515-16,
96 S.Ct. at 2726.
Central to this conclusion was the Court's construction of the purpose of the statute.
Rather than a general welfare provision, the statute was intended to replace the support
lost by a child when a father dies. Id. at 507, 2763. With regard to establishing dependency through state intestacy law,
the Court observed:
Similarly, we think, where state intestacy law provides that a child may take personal
property from a father's estate, it may reasonably be thought that the child will
more likely be dependent during the parent's life and at his death. For in its embodiment
of the popular view within the jurisdiction of how a parent would have his property
devolve among his children in the event of death, without specific directions, such
legislation also reflects to some degree the popular conception within the jurisdiction
... of the likelihood of actual parental support during, as well as after, life. (footnotes
and citations omitted).
Id. at 514-15, 2766-2767.
The Court recognized that because the class of benefit recipients under the various
tests was "incrementally over-inclusive," those not actually supported by the "father"
would receive benefits. But it found these critera to be "matters of practical judgment
and empirical calculation for Congress...reasonably supportive of its conclusions
that individualized factual inquiry in order to isolate each non-dependent child...is
unwarranted ...." Id. at 509, 515-16; 2764, 2767. The Court concluded that it had "no basis to question
their detail beyond the evident consistency and substantiality." Id.
The presumption that a child was an actual dependent at the time of the father's death
is the least strong of the statutory criteria when it is based solely on the law of
devolution of intestate personal property or the mere presumption of legitimacy. (Here,
because of the presumption of legitimacy, claimant is the NH's intestate heir despite
the declaration of heirship.) As a basis for presuming dependency, these grounds are
even less persuasive where the evidence acquired by SSA fails to show that the wage
earner did in fact live with or support the child, as in the case here. But such evidence
will not defeat the presumption based on intestacy law, or of legitimacy, id. at 2764, even though, under Mathews v. Lucas, the rationale that sustains the constitutionality of the federal statute is that
the state intestacy law or the presumption of legitimacy reflects the likelihood of
actual support.
CONCLUSION
The declaration of heirship here does not rebut the presumption of legitimacy. Assuming
a valid marriage, you must assess whether the evidence of non-access by the husband
to the mother at the time of conception, taken together with other evidence, is sufficiently
clear and convincing to rebut the presumption. If you cannot dispel reasonable doubt
that the husband did not have access, the presumption controls and requires that benefits
be given to the claimant because the federal statute as implemented defers to state
law on such matters.
The claims folder is returned herewith.