This responds to your request for our assistance in determining whether V~ T~ qualifies
for benefits as the child of A~D~ . We conclude, for the reasons discussed below,
that V~ T~ is entitled to benefits.
FACTS
The relevant facts may be briefly summarized: V~ T~ on April in Beloit, Wisconsin
to M~ T~. The wage earner, who was living in Beloit at the time the child , was never
married to M~ . The wage earner's name was not listed on the birth certificate. The
wage earner died domiciled in Illinois on June XX, 1974. The wage earner had been
living in Illinois since at least 1972, when he applied for and was awarded disability
benefits. The wage earner had also been living in Illinois at least from 1959 until
1965, when he separated from his wife, E~ (now E~ ). The wage earner's three children
from this marriage, which ended in divorce in 1969, first received benefits in 1972
based on their father's disability and later received survivors' benefits.
M~ T~ (who still lives in Beloit) abandoned her son V~ at some unspecified time prior
to the wage earner's death in 1974. V~ was then placed in the legal custody of the
Rock County (Wisconsin) Department of Social Services and continues to live with foster
parents in Rock County. The Rock County Department of Social Services filed an application
for child's benefits on behalf of V~ T~ on November XX, 1980, over six years after
the wage earner's death. The claim was initially denied on December XX, 1980, but
was subsequently reopened due to the Boatman order.
Following are summaries of statements by various parties contained in the claims folder:
1. M~ (V~ 's mother): The wage earner was V~ 's father. He was living in Beloit at
the time the child . She "thinks" the wage earner accepted responsibility for payment
of the hospital expenses (when contacted, the hospital replied that the wage earner
had not accepted responsibility for expenses). The wage earner was not living with
either V~ or her at the time of his death and never contributed to his support. The
wage earner told his brothers and sisters that he was V~'s father (as evidenced below,
the brothers and sisters confirm the wage earner's acknowledgement). The wage earner
also told two friends and co-workers that he was V~'s father (as evidenced below,
one of these friends confirms this acknowledgement while the other friend does not
"remember" the wage earner). She could not list, on the Child Relationship Statement,
any written evidence that the wage earner had acknowledged V~ as his son, except for
the possibility, discussed above, that the wage earner had accepted responsibility
for payment of hospital expenses and the possibility that he had listed V~ on an application
for employment in 1966. When contacted, the employer replied that it had no information
available for periods prior to 1975. M~ T~ also stated that she "thought" that a Rock
County Court had decreed the wage earner to be V~'s father (although the wage earner
had not been ordered to contribute to V~'s support). However, both court records and
welfare records indicate that no judicial proceedings ever took place in Rock County.
M~ later acknowledged that her assumption concerning paternity proceedings was based
solely on a single contact made by her with the Rock County District Attorney's Office;
she neither observed nor took part in any actual proceedings. She never received any
copy of a court order. Finally, M~ T~ stated that V~ no longer lives with her and
instead lives with "a friend."
2. M~ W~ (sister of the wage earner) - She submitted a photograph of two adults and
an infant she identified as being the wage earner, M~ T~ , and V~, purportedly taken
shortly after V~'s birth (the photograph is dated October, 1966). The wage earner
lived with her in Battle Creek, Michigan for a period prior to his death and spoke
often of V~ as his son. When he was dying, he wanted her to raise V~. She located
V~ after the wage earner's death, but V~ seemed happy with his foster parents. Other
members of her family are aware that the wage earner was V~'s father. She is greatly
concerned about V~'s welfare. V~'s mother is M~ T~. She has nothing 'in writing by
the wage earner, such as a letter, that would represent an acknowledgement. She contacted
the wage earner's employers, but the wage earner had not listed V~ as a dependent
at any of his jobs. Even before the Rock County Department of Social Services filed
an application (November 26, 1980), M~ W~ submitted a statement on July 29, 1980 that
she styled as a "protective filing" for benefits. She preferred to have V~'s foster
mother file the formal application. She also states that she believes the wage earner
acknowledged his paternity in open court in Rock County although she has no personal
knowledge that this occurred. As already discussed, there is no record of judicial
proceedings in Rock County.
3. J~ (sister of the wage earner). He visited her occasionally in Battle Creek, Michigan
from 1971 until his death. He often discussed his son, V~. He was upset that his ex-wife
was receiving benefits for her three children while V~ was not receiving benefits.
(The folder does not indicate whether an application on behalf of V~ for benefits
based on the wage earner's disability was ever filed).
4. J~ (sister of the wage earner) - The wage earner lived with her in Battle Creek,
Michigan for a period in 1969. He spoke of his son V~ because her own child was the
same age.
5. W~ W~ (sister of the wage earner) - She used to live in "Beloit, Illinois" and
would visit her brother and M~ T~, who were then living together. He acknowledged
his son V~, and acted as any father would, He frequently brought the child over to
her house so that she could babysit. She now lives in Battle Creek.
6. C~ (brother of the wage earner) - He first saw V~ as an infant. His brother told
him that V~ was his son. V~'s mother since abandoned him, and the child now lives
with foster parents. V~ Visits C~ 's home (in Battle Creek) on holidays and other
special occasions. C~ has "no doubt" that his brother was V~ 's father.
7. G~ (brother-in-law of the wage earner; separated from the wage earner's sister
W~; lives in Beloit) - The wage earner told him, in both Wisconsin and Illinois, that
he was V~'s father.
8. S~ (friend and co-worker; now lives in Indiana) - The wage earner lived in Wisconsin
with M~ when V~ . The wage earner acknowledged to him and several others in Beloit
(including G~ ) that he was V~'s father. "As far as I know, A~ supported the child
up until his death."
9. J~ (identified by M~ T~ as a friend and co-worker of the wage-earner) - He does
not "remember" an A~ .
As already noted, the wage earner applied for disability benefits in 1972. Benefits
were awarded on the basis of alcoholism and severe psychosis. Because the wage earner
was determined to be unable to manage his own affairs, the Cook County Department
of Public Aid acted as representative payee. In his application for disability benefits
filed on January 12, 1972, the wage earner listed only two of his children by E~ :
(born in 1960) and J~ (born in 1963). He did not mention his third child by E~ , O~
(born in April, 1965 probably subsequent to his separation from E~), and did not mention
V~ T~ . He told an examining physician in April, 1972 that he had two children who
lived with their mother. In a statement filed on May 25, 1972, he asserted that all
his relatives - two brothers and three sisters - lived in Battle Creek and said that
"I hear from them very seldom." The wage earner "acknowledged" O~ as his son in a
statement filed on August 8, 1972, [11] asserting that even though he had never seen O~, E~ had told him in late 1964 that
she was pregnant and "so O~ must be my son." O~'s birth certificate lists the wage
earner as his father.
Thus, the available evidence demonstrates no written acknowledgement of paternity
by the wage earner. He did not accept responsibility for payment of hospital expenses,
did not list V~ T~ on any employment applications (as far as can be known), and did
not list the child on a 1972 application for disability benefits. He was apparently
never decreed by a court to be V~'s father (contrary to M~ T~ 's and M~ 's assumptions
otherwise) or ordered by a court to contribute to V~'s support. He was not living
with V~ when he died and, according to M~ T~ , never contributed to his support (although
a friend who knew the wage earner and M~ T~ when they lived together in Beloit stated
that the wage earner supported the child up until his death). On the other hand, there
is extensive evidence that the wage earner acknowledged his paternity to his family
and his friends and that his family fully considers V~ to be the wage earner's son.
Although the available evidence does not indicate whether the wage earner continued
to see V~ after he and M~ T~ separated, the statements of those who observed the wage
earner, M~, and V~ together tend to show that the wage earner indeed acted as V~'s
father.
ANALYSIS
Under Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. 416(h)(2)(A), V~
T~ is entitled to benefits as the child of the wage earner if, under the intestacy
law of the state of domicile at the time of death (Illinois), he would be eligible
to inherit from the wage earner as the latter's child. Irrespective of state law,
V~ T~
may be entitled to benefits under Section 216(h)(3)(C) of the Act if the wage earner
had acknowledged his paternity in writing, been declared by a court to be V~'s father,
been ordered to contribute to V~'s support (all before the wage earner's death), or
been shown by "satisfactory" evidence to be V~'s father and had been living with him
or contributing to his support when he died.
V~ does not satisfy any of the "federal,' criteria of Section 216(h)(3). Therefore,
the issue here is whether V~ would be entitled to inherit from the wage earner under
"state law." We must first determine, however, whether Illinois would apply its own
law of legitimation and intestate succession or would look to the law of another state.
This is so because: (1) V~ T~ in Wisconsin and has continued to reside there, (2)
the wage earner was domiciled in Wisconsin at the time of V~'s birth, (3) the wage
earner died domiciled in Illinois, and (4) the wage earner orally acknowledged his
paternity in Illinois, Wisconsin, and Michigan (where he lived occasionally with relatives).
We conclude here that Illinois would apply its own law of legitimation and intestate
succession. We also conclude that the applicable Illinois law is that in effect at
the time of the application for benefits November 26, 1980 rather than that in effect
at the time of the wage earner's death June 28, 1974. Finally, we conclude that pursuant
to Illinois law as so applied, V~ T~ is, for social security benefit purposes, the
wage earner's heir.
1. Which State's Law Applies?
As a general proposition, whether a child must be born in wedlock in order to inherit
from his putative father is determined by the law of the state where the putative
father was domiciled at the time of his death. Restatement Second) Conflict of Laws
261; 10 Am. Jut. 2d Bastards 152. Where the law of the decedent's domicile does not
absolutely exclude inheritance by a child born out of wedlock, the status of the child
as legitimate for purposes of inheritance whether or child is born legitimate or subsequently
legitimated by force of law) is ordinarily governed by the personal law of the child
rather than the law of the decedent's domicile. Id.
In such a case, whether the child is legitimate is determined by the law of the state
that has the most significant relationship to the parent and the child. Restatement
(Second) Conflict of Laws, 287; 10 Am. Jur. 2d Bastards 152. This state will ordinarily
be the one that has the greatest interest in having its law applied at that particular
time with respect to that particular issue. Thus, the state of the child's domicile
has a substantial interest in its law providing for legitimacy whose purpose, among
others, is to give the child a right of support against the parent. On the other hand,
where the question of legitimacy bears on inheritance, the state of the putative father's
domicile at the time of his death has the dominant interest. Alternatively, if legitimacy
is claimed on the basis of the putative father's act of acknowledgement, the status
of the child will be determined by the law of the state either where the parent was
domiciled or the child was domiciled at the time of the act of acknowledgement. This
is so even if another state has a more dominant interest with respect to the issue
- i.e., the state of the father's domicile at death when inheritance is in question
- since the law favors legitimacy and seeks to-protect the father's expectations by
giving his act of acknowledgement its intended effect. Id. See also 87 A.L.R. 2d 1274.
In summary, so long as the law of the decedent's domicile at death does not exclude
from inheritance those born out of wedlock, the status of the child as legitimate
for purposes of inheritance is determined by the law of any state that achieves legitimation,
so long as the state has a reasonable connection with the facts. The child will usually
be held legitimate, and thus able to inherit in accordance with the intestate succession
law of the state where the father died domiciled, if this would be his status under
the law of the state where either the parent or child was domiciled when the parent
performed a legitimating act (such as acknowledgement). Federal courts have commonly
applied these rules in determining legitimacy issues in social security child's benefits
cases. See, e.g., Tyler v. Schweiker, 530 F. Supp. 1028 (D. Md. 1981); Montgomery v. Schweiker, 523 F. Supp. 1128 (D. Md. 1981).
Illinois courts have taken a somewhat stricter view of the effect of a foreign state's
legitimation law on-inheritance from Illinois domiciliaries, holding that Illinois
will not recognize such a status contrary to its own laws or public policy. In Hall v. Gabbert, 72 N.E. 806 (Ill. 1904), the Illinois Supreme Court held that for purposes of determining
intestate succession to real property of an Illinois domiciliary, the legitimacy of
a purported heir is determined by Illinois law and not by the law of state where the
decedent was domiciled when he performed alleged legitimating acts (in this case,
Illinois law conferred legitimate status on the child). In McNamara v. McNamara, 135 N.E. 410 (Ill. 1922), the Illinois Supreme Court accepted, for purposes of inheritance
under Illinois law, the legitimate status of a child previously declared by California
courts in accordance with California's legitimation statute. The Court remarked that
while Illinois law controlled inheritance, the status of the child as legitimate was
controlled by the domicile of the father and the child at the time the alleged legitimating
acts were performed. In Pierce v. Pierce, 39 N.E. 2d 990 (Ill. 1942), the Court recognized the legitimacy of the child as
conferred under Nevada law, based upon the parents' subsequent marriage and the father's
acknowledgement while the parties were domiciled in Nevada.
However, in Fuhrhop v. Austin, 52 N.E. 2d 267 (Ill. 1943), the Illinois Supreme Court refused to recognize the
status of legitimacy as conferred by an Arkansas statute that provided that the issue
of a marriage null in law are deemed legitimate. The parents had been domiciled in
Arkansas at the time of their void marriage. The Court distinguished McNamara by pointing out that the issue of legitimacy had been adjudicated by the California
courts in litigation involving the same parties. The Court distinguished Pierce by pointing out that the method recognized by Nevada law for legitimizing children
born out of wedlock (intermarriage and subsequent acknowledgement by the father) was
similar to that method recognized by Illinois law, while the Arkansas statute was
in direct conflict with Illinois law which then followed the common law principle
that issue of a void marriage are deemed illegitimate). The most recent case in this-area
is Estate of Stewart, 268 N.E. 2d 187 (Ill. App. 1971. There, the Illinois' Appellate Court, relying on
Fuhrhop, held that where Illinois law provided that the issue of a void marriage are legitimate,
a void Tennessee marriage conferred the status of legitimacy upon a child seeking
to inherit personal property from an Illinois domiciliary, notwithstanding the fact
that under Tennessee law (where the parties were domiciled at the time of the marriage),
the marriage was insufficient to confer legitimacy status.
The Illinois Supreme Court has not ruled on the issue since Fuhrhop, and it is entirely possible that should it decide the issue today the Court would
adopt the more modern approach taken by the second Restatement. Until then, however,
it appears that the Illinois courts would not recognize, for purposes of inheritance
of either real or personal property, a status of legitimacy conferred by the law of
another state, unless that status had been formally adjudicated in a judicial proceeding
(as in McNamara) or the foreign law was compatible with Illinois law as in Pierce). Wisconsin (where the claimant and still resides and where the wage earner was domiciled
at the time of the claimant's birth) confers legitimacy status upon a child born out
of wedlock if the parents subsequently marry, regardless of acknowledgement by the
father. Wis. Stat. Ann. 767.60 formerly 245.25). As applicable at the time of the
wage earner's death, Michigan law conferred legitimacy status upon a child born out
of wedlock if the parents subsequently married or the parents executed a recorded
acknowledgement. Mich. Comp. Laws Ann. 702.83 West 1978). [12] Both Wisconsin law and Michigan law in this regard are incompatible with Illinois
law which conferred at the time of the wage earner's death, and still confers today,
legitimacy status upon the parents' subsequent marriage and acknowledgement by the
father). In any event, the claimant would not have the status of a legitimate child
under either Wisconsin law or Michigan law, since his parents neither married nor
executed a recorded acknowledgement. Therefore, Illinois would not look to the law
of either Wisconsin or Michigan in determining whether claimant is legitimate for
purposes of inheritance.
To be distinguished from those statutes that legitimate a child born out of wedlock
and thus accord to him the right of inheritance of a legitimate child in addition
to other rights) are those statutes that enable the illegitimate child to inherit
as such regardless of whether he has been legitimated. Since the latter statutes are
ones merely of descent that govern solely the inheritance of the property, rather
than laws conferring status, they have no extraterritorial effect so as to control
the descent of property of the domiciliary of another state. 10 Am. Jur. 2d Bastards
152; Restatement (Second) Conflict of Laws, 261 comment (f), 287 comment (d). In other
words, foreign law that enables a child to inherit as illegitimate, as distinguished
from that law that legitimates the child and thus grants him the right to inherit
as legitimate, does not control intestate succession to property of a decedent who
died domiciled in another state. We have concluded above that Illinois would not look
to the law of either Wisconsin or Michigan in determining whether the claimant is
legitimate. As just discussed, whether claimant may inherit as an illegitimate child
is governed solely by Illinois law, [13] We now consider this issue.
2. Application of Illinois Law
Prior to September 1978, Illinois law provided for inheritance by a child born out
of wedlock who had been subsequently legitimated by the marriage of his parents and
acknowledgement by his father. Ill. Rev. Star. ch. 110 1/2, 2-2 (S~-H~ 1977). As a
result of Public Act 80-1429, a child so legitimated may still inherit; however, a
child not. legitimated in this matter may still inherit as an illegitimate child if
the father acknowledges paternity, is adjudged to be the child's father during his
lifetime or after his death, or is otherwise shown by "clear and convincing evidence"
to be the father of the child. Ill. Rev. Star. ch. llO 1/2, 2-2 (S~-H~ 1979); POMS
GN T00306.135. The "clear and convincing evidence" standard itself applies to the requirement of
acknowledgement. Here, since the claimant's parents never married, he was not legitimated
pursuant to Illinois law. However, the alternative provisions of P.A. 80-1429 relating
to inheritance by illegitimates may still be applicable. Although the wage earner
died in 1974, P.A. 80-1429 has been held to be retroactive for the purpose of determining
eligibility for child's social security benefits. Cooper v. Harris, 499 F. Supp. 266, 267 (N.D. Ill. 1980).
In a series of recent opinions, we have examined the scope of the "clear and convincing
evidence" standard for establishing paternity. "Effect of Illinois Law P.A. 80-1429
on Requirements for Entitlement of Illegitimate Children," RA V (P~) to ARC-Programs,
5/19/80; A1 S~ ,~ , RA V D~ to ARC Programs 7/28/80; J.T. T~ , ~ , RA V (P~) to ARC-Programs,
12/13/80; O~ R~ ,
~ , RA V (K~) to ARC-Programs, 5/19/82; F~ , ~
~ , RA V (M~) to ARC-Programs, 6/1/83. We have emphasized that this evidentiary standard
places "a very high burden of proof on the claimant," requires "a broad range of convincing
evidence which reveals no significant-internal contradiction," and excludes "credible
evidence (that) contradicts other evidence of paternity." "Effect of Illinois Law,
etc." We have also emphasized that the "clear and convincing evidence" standard requires
more than simply proof "by a preponderance of the evidence;" it is therefore insufficient
that the available evidence demonstrates that paternity is "more likely true than
not." F~, supra.
However, we have never suggested that the "clear and convincing evidence" standard
requires a "perfect" or "air-tight" case or that it excludes every possible question
or doubt of paternity arising from the record In Estate of Raven, 398 N.E 2d 198, 203 (Ill. App. 1~79), the leading case to date on P.A. 80-1429,
the court stated that "although (often) stated in terms of reasonable doubt, clear
and convincing evidence is considered to be more than a preponderance while not quite
approaching the degree of proof necessary to convict a person of a criminal offense."'
The court also stated:
The spectrum of increasing degrees of proof, from preponderance of the evidence, to
clear and convincing evidence, to beyond a reasonable doubt, is widely recognized,
and it has been suggested that the standard of proof required would be clearer if
the degrees of proof were defined, respectively, as probably true, highly probably
true, and almost certainly true. 398 N.E. 2d 198.
Given the nature of the cases such as the one presented here, with all the inevitable
gaps and inconsistencies in whatever evidence can be gathered, the paternity of the
wage earner will often be apparent in spite of certain evidence or lack thereof that
cannot be easily explained. "Clear and convincing evidence" of paternity may exist
even though reasonable doubts and questions are apparent from the record. As Reagen
suggests, the standard, while exacting, does not require that the existence of paternity
be "almost certainly true;" it is sufficient that the fact of paternity be "highly
probably true."
The present case is one in which, although the record indicates several questions
and doubts, we are nevertheless left with the firm and definite conviction that the
wage earner's paternity is "highly probably true." In other words, although there
is some evidence in the record that cannot be easily explained as consistent with
an allegation of paternity, other evidence cannot be explained at all other than by
concluding that the wage earner must have been the claimant's father.
Thus, it is true that the wage earner never acknowledged his paternity in writing,
never contributed to the claimant's support, did not accept responsibility for payment
of hospital expenses, did not list the claimant on employment applications (as far
as can be known), and, most important, did not list the claimant on a 1972 application
for disability benefits. Apparently no paternity proceeding was brought against the
claimant. Moreover, no application on behalf of the claimant was filed until six years
after his death. Some of these "inconsistencies" may or may not be explained. The
wage earner apparently worked sporadically and may not have been able to contribute
to the wage claimant's support. Whether or not the wage earner listed the claimant
on employment applications cannot be conclusively established due to the lack of available
records. Although the wage earner did not list the claimant on his 1972 application
for disability benefits, at that time he was suffering from alcoholism and severe
psychosis and did not list one of his other children (by E~ D~ ). With respect to
the absence of any paternity action, it must be noted that M~ T~ who later abandoned
the claimant, was not a responsible parent and may not have desired to actively pursue
a paternity action. Even assuming, as she stated, that she contacted the District
Attorney, the latter may have determined that insufficient evidence existed to warrant
a paternity action. As for the failure to file an application for social security
benefits until six years after the wage earner's death, it must again be noted that
M~ T~ abandoned the claimant prior to the wage earner's death; the Rock County Department
of Social Services, as the claimant's legal custodian, may not have been aware of
either the wage earner's paternity or the fact that he had died.
On the other hand, relatives and friends of the wage earner have consistently stated
that he acknowledged his paternity; those who observed him together with the claimant
also state that he acted as the claimant's father. Many of these relatives clearly
consider the claimant to be a member of their family and appear sincerely and genuinely
interested in his welfare. Their statements are not contradicted by other parties.
None of these. relatives have any apparent interest in making false statements concerning
the wage earner's acts and words of acknowledgement. Despite the questions and doubts
discussed above, the evidence of acknowledgement is credible and convincing, and cannot
be explained other than to. conclude that the wage earner indeed acknowledged his
paternity. Indeed, P.A. 80-1429 establishes "acknowledgement" as a separate criteria
enabling an illegitimate child to inherit from his father. Thus, so long as the evidence
of acknowledgment itself is "clear and convincing," it is irrelevant that other actions
of the purported father may be inconsistent with a finding of paternity.
Thus, the claimant may inherit from the wage earner under Illinois law. We conclude,
therefore, that V~ is entitled to benefits as the child of the deceased wage earner,
A~D~