In a case where the deceased number holder died while domiciled in Florida, Florida courts would look to that State's intestacy laws first as opposed to the laws of the State of the child's birth or residence in order to determine the parent-child relationship.

QUESTION

You asked whether Florida would apply its own laws or the laws of Louisiana to determine whether a claimant born in Louisiana is the child of a number holder domiciled in Florida. You also asked whether the evidence gathered is sufficient to establish Claimant is the child of Number Holder under the applicable state law.

ANSWER

For the reasons stated below, we believe a Florida court is more likely to apply its own laws to determine whether Claimant could inherit from NH through intestacy. The evidence presented here would appear to be sufficient under Florida law to establish by clear and convincing evidence that Claimant is the child of Number Holder and eligible to inherit from his estate.

BACKGROUND

Number Holder (NH), Willie L. G~, lived in Florida at the time of his death on February 2, 2000. Shanique B~'s (Claimant) mother, Darlene W~, married Darrell P. B~ on March 23, 1985. Although the exact date is unclear, Claimant's mother and Mr. B~ separated in late 1987 or 1988. A Judgment of Divorce was entered by the 33rd Judicial District Court in the Parish of Allen, Louisiana on May 3, 1990. Claimant was born in Louisiana on May 22, 1990. Therefore, Claimant was conceived but not born during the course of the marriage between Claimant's mother and Mr. B~. Claimant's birth certificate lists her as the child of Darlene W~ and Darrell P. B~.

The Judgment of Divorce awards Claimant's mother and Mr. B~ joint custody of Claimant's older sister, Dimonitrice B~. The Judgment of Divorce does not mention or provide for Claimant, who was born seventeen days later. However, the 33rd Judicial District subsequently ordered Mr. B~ to pay child support for both children on April 22, 1998. After Claimant's older sister was emancipated, this order was amended on February 4, 2004 to require Mr. B~ to pay child support only for Claimant. There is no evidence that Mr. B~ ever challenged the conclusion that he was Claimant's biological father.

On September 23, 2006, Claimant's grandmother, Hattie V. W~, filed a claim on Claimant's behalf for Child's Insurance Benefits on NH's account. Claimant's mother and grandmother submitted signed statements (SSA-795) that NH was cohabitating with Claimant's mother in the home of Claimant's grandmother when Claimant was conceived and born. Claimant's mother stated she was married but separated from Mr. B~ at this time. Claimant's mother contends that NH was present at the hospital when Claimant was born and continued to live in the same home for another year and a half. NH and Claimant's mother purportedly ended their relationship when NH moved to Florida. There is no evidence NH ever acknowledged paternity of Claimant in writing. NH's obituary does not list Claimant as one of his eight surviving children.

NH's mother and father, Willie and Anna G~, both submitted signed statements indicating NH told them he was Claimant's father. NH's mother and father also confirmed NH was living with Claimant's mother and grandmother at the time of Claimant's conception and birth. NH's mother stated NH left Louisiana because he was not ready to get married.

DISCUSSION

Entitlement to Child's Insurance Benefits - In General

To qualify for child's benefits on the record of an individual entitled to disability benefits, a claimant must be that individual's child. See § 202(d) of the Social Security Act (Act), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2006). A "child" for purposes of this regulation means an individual who is related to the insured person as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2006). Only the provisions relating to a natural child could apply to this claim.

A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured's personal property as his or her child under the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b) (2006). Because NH was domiciled in Florida, the question is whether a Florida court would consider Claimant to be NH's child for purposes of intestate succession. Since Claimant was born in resides in Louisiana, it is also necessary to determine whether a Florida court would use its own laws or the laws of Louisiana in making this determination.

Florida's Choice of Law to Determine Paternity for an Intestate Estate

As a general matter, Florida will apply the law of the state in which real or personal property is located when questions arise as to the transfer, alienation and descent of that property. See In re Estate of Nicole-Santos, 648 So. 2d 277, 280 (Fla. Dist. Ct. App. 1995). For instance, the validity of a will is to be determined in accordance with the laws of the state where the property in question is located. See In re Estate of Swanson, 397 So. 2d 465, 466 (Fla. Dist. Ct. App. 1981). NH was a resident of Florida for approximately eight years when he died and there is no reason to believe that he owned property in any other state.

Although we have located one case that suggests Florida might look to another state's law, we do not believe that it is applicable to the facts of the claim at hand. It is clear that Florida's intestacy laws apply to the inheritance of property located in Florida. See In re Estate of Salathe, 703 So. 2d 1167, 1169 (Fl. Dist. Ct. App. 1997). However, there was a question as to the status of the marriage between the decedent and her estranged husband, who was seeking a share of the intestate estate. Id. Although the property in question was located in Florida, the court determined that it was appropriate to apply German law to determine the status of the relationship between the decedent and her husband because both parties resided in Germany during the entire marriage, signed a separation agreement under German law, and the decedent continued to live there with the couple's minor child until her death. Id.

This case is different from Salathe because NH left Louisiana for Florida not long after Claimant's birth and was a resident of Florida at the time of his death. In addition, there have been no legal proceedings or written agreements involving NH in Louisiana. Although the husband in Salathe moved to Florida after executing a settlement agreement with the decedent, the decedent's connection to Germany weighed against the application of Florida law. See In re Estate of Salathe, 703 So. 2d at 1169. We recognize that Salathe could form the basis of an argument that a Florida court should apply Louisiana law to determine the legal relationship between Claimant and NH. However, given the factual differences between these two cases, we feel that it is more likely a Florida court would apply its own laws to determine whether Claimant could inherit from NH's intestate estate.

Florida Law Applied to this Claim

Florida law provides that "[a]ny part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs" who are "those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of the decedent." FLA. STAT. ANN. §§ 731.201(18), 732.101 (2006). Any part of an estate that does not pass to a surviving spouse passes to the lineal descendants of the decedent. See FLA. STAT. ANN. § 732.103 (2006).

Under Florida law, a person born out of wedlock may establish that she is the lineal descendant of a man for purposes of intestate succession if (a) the natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even if 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. See FLA. STAT. ANN. § 732.108(2) (2006). Claimant's mother and NH never participated in a marriage ceremony and NH never acknowledged paternity of Claimant in writing. However, under subsection (b) of this statute, Claimant may attempt to establish NH's paternity for the first time in a probate proceeding to determine intestate succession. See Fagan v. Cramer, 877 So. 2d 945, 946 (Fl. Dist. Ct. App. 2004). The putative heir must present evidence that is "clear, strong and unequivocal, that is, the person born out of wedlock should prove paternity by clear and convincing evidence." Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fl. Dist. Ct. App. 1991). If the putative heir is born in wedlock to a mother married to another man, the heir must also present "clear and satisfactory" evidence to overcome the presumption of legitimacy. In re Estate of Broxton v. Johnson, 425 So. 2d 23, 25 (Fl. Dist. Ct. App. 1982).

Florida presumes that a child who was conceived during but born after the termination of a marriage is legitimate and a product of that marriage. See GN 00306.455; Smith v. Wise, 234 So. 2d 145, 146 (Fl. Dist. Ct. App. 1970). However, this presumption is rebutable and there is no legal impediment to prevent a mother from testifying the child in question is the product of a man other than her husband. See Williams v. Estate of Long, 338 So. 2d 563, 566 (Fl. Dist. Ct. App. 1976). A mother may testify as to non-access by the man to whom she was married at the time of conception. See In re Estate of Jerrido, 339 So. 2d 237, 239 (Fl. Dist. Ct. App. 1976). In Jerrido, three children brought an action to establish decedent as their biological father despite the fact their mother was married to another man. Id. The court affirmed a decision by the trial court that allowed the mother to testify that her husband did not have access to her during the years that the children were conceived and born. Id. The court also affirmed the trial court's ultimate conclusion that the children were the offspring of the decedent and not the mother's husband. Id., at 239-240. Therefore, we believe that a Florida court will allow Claimant's mother to testify that she was separated from her husband and cohabitating with NH at the time of Claimant's conception and birth. SSA has obtained corroborating testimony from the relatives of both Claimant's mother and NH. Thus, the evidence appears sufficient to establish non-access of Mr. B~ so as to rebut the presumption of paternity.

The words "out of wedlock" in FLA. STAT. ANN. § 732.108(2) do not preclude the use of this statute by an individual born to a mother who was married at the point of conception or birth. See In re Estate of Robertson, 520 So. 2d 99, 101-102 (Fl. Dist. Ct. App. 1988). Under § 732.108(2)(b), the child must produce evidence that is "clear, strong and unequivocal." See Robertson, 520 So. 2d at 101. In Robertson, the court concluded that the putative heir met this burden by producing evidence that the decedent acknowledged paternity both orally and in writing on numerous occasions, resided with the child and the natural mother as a family unit prior to his death, contributed to their support and expressed a desire that his daughter inherit from him. See Robertson, 520 So. 2d at 100.

In this case, it is undisputed that Claimant's mother and Mr. B~ separated in 1988 and Claimant's mother was cohabitating with NH at the time of Claimant's conception and birth. NH appears to have acknowledged paternity orally to both of his parents. Claimant's mother and grandmother contend NH lived with them for another year and a half after Claimant's birth before leaving Louisiana and provided support during that time. This case is different from Robertson because there is no written acknowledgment of paternity from NH. However, given the presence of the other factors considered in Robertson, we believe a Florida court is more likely to find this evidence sufficient to establish Claimant as child of NH and entitled to inherit from his estate.

Although Claimant was not mentioned in the Judgment of Divorce, subsequent orders for child support in Louisiana presume that Mr. B~ was Claimant's father. Under Florida law, a child is not bound by a paternity determination in a divorce or child support proceeding because the child is not a party to that proceeding and may pursue an action for a share of the intestate estate of a man other than the one married to her mother at the time of conception or birth. See Robertson 520 So. 2d at 102. Similarly, SSA is not required to accept a paternity determination in such circumstances because it also was not a party to the state court action, especially when no opposing interests were presented in the case. See Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 322 (11th Cir. 1989). In Baker, the Eleventh Circuit concluded that an Administrative Law Judge was not bound by a finding from a Florida trial court that a third party was the biological father of a child born during the marriage of the mother to another man who admitted to paternity and consented to child support obligations. See Baker, 880 F.2d at 322 (holding that the ALJ was entitled to rely upon his own assessment of the evidence to determine whether a Florida court in a contested case would hold that the presumption of legitimacy had been sufficiently overcome). To the extent the Louisiana child support orders can be interpreted as an adjudication of paternity, neither Claimant nor SSA are bound by such a finding.

CONCLUSION

We believe that Florida would apply its own laws to determine whether Claimant could inherent from NH's intestate estate. Under Florida law, the evidence presented is sufficient to rebut the presumption that Mr. B~ is Claimant's father and establish that she is the child of NH. As such, you would be justified in concluding that Claimant could inherent from NH through intestacy under Florida law.

Mary A. S~
Regional Chief Counsel

By:
Christopher G. H~
Assistant Regional Counsel

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS — FLORIDA

The inheritance rights of an illegitimate child born in Kentucky, whose putative father died domiciled in the State of Florida is determined by the State of Florida. See opinion RE M~, James G., SSN ~, RAIV [J~], to Dir., Ins. Prog. Br., Atl., 4/21/83.

(C~, Steve - SSN ~ - RAIV [J~], to Dir., Ins. Prog. Br., Atl., 5/26/83)

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS — FLORIDA

Under Florida law pursuant to Section 732.108(2)(b), oral acknowledgment by the putative father is sufficient to establish paternity. The Florida courts have held that oral acknowledgment can be used to establish paternity but the evidence must be 'clear and convincing" evidence. In Re Estate of Odom, 397 So.2d 428, Fla. Dist. Ct. App.'-(1981); In Re Estate of Burris, 361 So.2d 152 (1978); and, See opinion M~, supra.

(C~ Steve - SSN ~ - RAIV [J~], to Dir., Ins. Prog. Br., Atl., 5/26/83)

In your memorandum of December 3, 1982, you asked whether Florida would apply its laws and standards of proof or those of Kentucky, the child's birthplace, in determining the rights of the child-claimant. If Florida law is applied, you wanted to know whether an oral acknowledgment by the father would be sufficient to establish paternity.

According to the information contained in the case file, the facts are as follows:

The decedent, Steve C~ died domiciled in Florida on July 2, 1982. Sandra M. P~ filed an application on September 2, 1982, for surviving child's benefits on behalf of her daughter, Sarah R. P~, on the record of the decedent.

The child-claimant was born in Kentucky on April 16, 1981. The birth certificate shows Sandra as the mother, but it does not show the identity of the father. The mother neither ceremonially married nor established a common-law marriage with the decedent. The decedent was never ordered by a court to contribute to the child's support nor was he determined by a court to be the father of the child. There is no evidence that the decedent acknowledged the child by a writing. However, there are statements in the file by Frances P~ relationship to (number holder) unknown, and by the decedent's mother and father, Patricia and Charles C~, which state that the decedent orally acknowledged the child to be his.

In response to your first question of whether Florida would apply its laws and standard of proof or those of Kentucky, the child's birthplace, we addressed these issues in an earlier opinion. In the recent opinion of M~ James G. - SSN ~ RAIV ~J~], to Dir., Ins. Prog. Br., Atl., April 21, 1983, our office stated the following:

Although Florida may recognize the status created by the foreign jurisdiction, Florida would not necessarily apply the foreign law regarding the rights and incidents flowing from such status. Florida follows the principle of law which states that the rights and incidents to a status fixed in one State do not necessarily follow into another State. Gadd v. Pearson, 351 F.Supp. 895 (1972). Moreover, Florida has an interest in the orderly descent and distribution of the property of its citizens within its limits. In Re, Estate of Burris, 361 So.2d 152 (1978).

Thus, Florida would apply its own law in determining the inheritance rights of the child since the father died domiciled in Florida.

You additionally wanted to know whether Florida would apply its own standards of proof or those of Kentucky. In the present case it does not matter which State's standard of proof is used since paternity can be established by oral acknowledgment in either State. See opinion Re oral acknowledgment of paternity under Kentucky law, RAIV [Adams], to Dir., IPB, 9/9/82. In Florida, the legislature and the Supreme Court have both determined that paternity can be established by an oral acknowledgment. Prior to January 1, 1976, Florida law required a written acknowledgment signed by the father in the presence of a competent witness. See, Section 731.29(1), Fla. Stat. Ann. (1973). However, the Florida legislature repealed Section 731.29(1) and replaced it with Section 732.108(2). This Section provides in pertinent part:

For the purposes of intestate succession in cases not covered by subsection (1), a person born out of wedlock ... is also the lineal descendant of his father and is one of the natural kindred of all members of his father's family, if ...

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

Section 732.108(2)(b) was construed in the case of In Re, State of Odom, 397 So.2d 420 Fla. Dist. Ct. App. (1981) by the Florida Court of Appeals. This court held that paternity could be established before or after the death of the father by written acknowledgment or "by any other admissible evidence." The court did not give a definition of what constituted "other evidence" but the court did state that the standard of proof for other evidence for adjudication after death should at least meet the standard for proving of a lost writing. That is, the evidence must be "clear and convincing."

The Florida Supreme Court has also determined that written acknowledgment is not necessary to establish paternity. In Re Estate of Burris, 361 So.2d 152 (1978)^[1] , a case decided before Section 731.29(1) was repealed, the court held that Section 731.29(1) was unconstitutional because it required paternity to be established by a written acknowledgment. The court found that the children were the natural children of the decedent and declared that they could inherit from the father in absence of a written acknowledgment.

Thus it is seen that a child can establish paternity by oral or any other evidence so long as the evidence presented is "clear and convincing."

The claims file is returned herewith.

LEGITIMACY — Presumption and Proofs — FLORIDA - TEXAS

In Florida, a child's status (whether legitimate or illegitimate) is determined by the law of the state in which the child was born.

10 Am Jur.2d Bastards, §9, p. 849 (1963).

In your memorandum of February 20, 1981, you asked whether the law of Florida or the law of Texas would be applied to determine the legitimacy of the subject child.

The wage earner married Barbara in E1 Paso, Texas on June 17, 1973. Four months later, Barbara gave birth to Jason on October 8, 1973 in E1 Paso, Texas. The birth certificate reflects the wage earner as Jason's father. There is nothing to indicate that Jason had other than a full period of gestation. The marriage between the wage earner and Barbara ended in a divorce granted by a Court in the State of Oregon on October 25, 1975. The court found that there was no issue of this marriage. In a written statement dated October 2, 1980, Barbara stated that Jason was not the natural child of the wage earner. The wage earner died on August 4, 1980 domiciled in the State of Florida. On September 12, 1980, Barbara filed an application seeking mother's benefits and child's benefits on the wage earner's earnings record. There is nothing in the file to support a finding that Jason was a stepchild of the wage earner, that the wage earner intended to adopt Jason or that the wage earner had acknowledged in writing that Jason was his son.

Since a child's relationship to a wage earner is to be determined by the laws of the state in which the wage earner was domiciled at his death, Florida's law will be applied to determine Jason's relationship to the wage earner. 20 C.F.R. 404.354. Although we were unable to find specific authority relative to Florida's choice of law under these circumstances, it is our opinion that Florida would apply the generally accepted rule. The general choice of law rule determining one's status as legitimate or illegitimate is the law of the place of birth. However, Florida is not bound to apply Texas law to determine Jason's status if to do so would contravene an established Florida policy or offend the morals of that state. 1O AM Jur. 2, Bastards, §9, p. 849 (1963).In the present case, Jason was born during wedlock but was conceived prior to marriage. Under both the law of Florida and the law of Texas, a child born during wedlock but conceived prior thereto creates a strong but rebuttable presumption that the child is the issue of the marriage partners. Hills v. Parks, 373 So. 2d 376 (1979); Knauer v. Barnett, 360 So. 2d 399 (I978); Neff v. Johnson, 39I S.W. 2d 700 (1965). Additionally, the statement by Jason's mother dated October 2, i980, can also be considered to rebut the presumption of paternity in both Florida and Texas since neither state currently follows the Lord Mansfield rule (L~ Emory, W.— ~ —RA IV (W~) to ARC, Atlanta 7/11/80); Wedgman v. Wedgman 541 SW 2d 522 (i976); Davis v. Davis, 52I SW 2d 603 (i975). Since neither Florida nor Texas apply the Lord Mansfield Rule and since both States presume the legitimacy of children born during wedlock the application of either State's law would yield the same result in this matter.

The evidence of record capable of rebutting the presumption of legitimacy is the divorce judgment of the Oregon court finding there was no issue of the marriage. Additionally, Jason's mother made a written statement dated October 2, I980, in which she specifically stated Jason was not the natural child of the wage earner. According to the divorce decree, Jason's mother was seeking the divorce. She did appear at the proceeding and was assisted by counsel. The wage earner did not appear in person but was aware of the proceedings and specifically consented to the matter going forward without his presence. Assuming a full and thorough inquiry by the Court and given the lack of the wage earner's presence, the Court specifically found there was no issue of the marriage. In the absence of any jurisdictional defect, this Oregon judgment is binding on Florida under the full faith and credit clause of the U.S. Constitution. Williams v. North Carolina, 325 U.S. 226, 65.S.Ct. 1092, reh denied (1945).

Although there is a strong but rebuttable presumption of Jason's legitimacy, it is the opinion of this office that given the Oregon divorce judgment and the mother's statement, you would be warranted in finding that Jason is not the natural son of the wage earner.