QUESTION PRESENTED AND ANSWER
By referral dated August 30, 1983, you have asked whether Danielle R. C~ (HC1) is
entitled to child's benefits on the account of Scott L. S~ from June 6, 1982, the
date of a circuit court order of paternity and support, or whether a prior date of
entitlement is appropriate. You refer to POMS GN T00306.100 and a 1948 legal opinion from this office which suggest that such court orders only
operate to confer inheritance rights prospectively in Wisconsin. See Bonnie J. M, C-6336, A/N ~, RA-V (R~) to Area Office (B~), 9/16/48. For the reasons which follow,
in our opinion March 5, 1982 is the appropriate date on which to base entitlement
in this case. On that date the account holder admitted paternity in open court.
BACKGROUND FACTS
Danielle R. C~ was born on June 30, 1980. Her mother, Cheryl L. C~, was unmarried.
On September 4, 1980, paternity proceedings against Scott L. S~, the account holder,
were commenced in the State of Wisconsin Circuit Court for Manitowoc County. Shortly
thereafter, Mr. S~ denied paternity in court. In December 1980, Mr. S~ agreed to admit
paternity if blood tests established him to be the child's father. The results of
the blood tests were received on November 24, 1981, and stated, "The odds in favor
of paternity are 582 to 1,'or 99.83%. Paternity is practically proved." At a pretrial
conference held on March 5, 1982, Mr. S~ admitted paternity and agreed to assume support
obligations for Danielle. The court entered the paternity and support order on June
8, 1982. In addition to ordering prospective support payments of $10.00 per week commencing
June 4 1982, the court also ordered past support in the amount of $1900.00. Jeff W~,
Branch Manager, Manitowoc, Wisconsin Branch Office, SSA, has advised us that based
on his conversations with Kenneth R. N~, Wisconsin Child Support Coordinator, the
support order was retroactive to the child's date of birth. The court also ordered
that fees be paid for filing of a corrected birth record pursuant to Wis. Stat. Ann.
69-24(1)(e) (West).
Cheryl C~ filed the application for child's benefits on behalf of Danielle on May
26, 1982. Scott L. S~ has been entitled to disability benefits since February 22,
1980, prior to Danielle's birth.
DISCUSSION
Under Section 21'6{h){2)(A) of the Social Security Act, 42 U.S.C. 416(h){2)(A), entitlement
to child's benefits reflects the State law of intestate succession. Wis. Stat. Ann.
852.05 (West) provides that an illegitimate child is entitled to inherit from his
or her father if the father has acknowledged his paternity either in writing or in
open court or has been adjudicated to be the father in a paternity proceeding under
Wis. Stat. Ann. Ch. 767 {West). In this case, we have a court order of paternity dated
June 8, 1982, We also have an earlier acknowledgment of paternity in open court on
March 5, 1982. [1] In our opinion, the March 5, 1982 oral acknowledgment of paternity in open court,
without more, satisfied the statutory requirement. See R~, A/N ~ OGC (P~) to SSA, 7/21/65. In the R~ case, OGC advised that the child-claimant
had potential inheritance rights in Wisconsin law from September 11, 1964, the date
on which the account holder entered a plea admitting paternity, rather than from the
later date of October 23, 1964, when the court order of-paternity was entered. [2] Moreover, the oral acknowledgment of paternity in open court need only be clear and
unequivocal when made to satisfy the Wisconsin statutory requirement. In re T~ Estate, supra, the court stated,
Thus it is possible that an illegitimate child could inherit from a father who in
one courtroom had denied paternity but in another had admitted paternity .... If at
some other time the father makes a clear and unequivocal admission of paternity in
open court, this may support a finding in favor of the illegitimate's being an heir.
118 N.W.2d at 935. Thus Danielle first satisfied the requirements of Wis. Stat. Ann.
852.05 (West) for intestate inheritance from the account holder by the March 5, 1982
oral acknowledgment of paternity by Scott S~ in open court.
This office has previously advised that the provisions of Wis. Stat. Ann. 237.06,
which has been slightly modified and renumbered as Wis. Star. Ann. 852.05 effective
April l, 1971, operate prospectively and do not confer potential rights of inheritance
on the illegitimate child before the acknowledgment or court order of paternity. M~
C-6336, A/N ~, RA-V (R~) to Area Office (B~), 9/16/48; R~, A/N ~, OGC (P~) NCIF to
SSA, 7/21/65. In its present section of Wis. Star. Ann. 852-05(1) (West) reads:
(1) A child who is not legitimate or the child's issue is entitled to take in the
same manner as a legitimate child by intestate succession from and through his or
her mother, and from or through his or her father if the father has either been adjudicated
to be the father in a paternity proceeding under ch. 767, or has admitted in open
court that he is the father, or has acknowledged himself to be the father in writing
signed by him.
Notwithstanding amendments to the statute since 1965 [3] , in our opinion the conclusions reached in our prior memoranda remain correct. [4] As we explained in the 1948 M~ opinion, supra, courts have consistently distinguished
between statutes which legitimate children and those which merely confer inheritance
rights. While acts of legitimation tend to be given effect retroactive to the birth
of the child, acts which confer inheritance rights without legitimating the child
operate prospectively only. One frequently given rationale for the difference is that
since inheritance statutes operate only upon somebody's intestate death, no purpose
is generally served in ascribing retroactive effect to such statutes. The section
of the Wisconsin statute involved herein in not a statute that confers legitimacy;
rather it only confers inheritance rights. Therefore, because there is no case law
or legislative history to the contrary, we conclude that actions which confer inheritance
rights operate only from the date of their occurrence.
We recognize that in this case the paternity order appears to have included some retroactive
elements. Past support and a corrected birth certificate were ordered. However, we
find no basis in Wisconsin law for concluding that retroactive actions ordered under
the paternity statute, Wis. Stat. Ann. Ch. 767 {West}, serve to legitimate the child
or otherwise affect the operation of Wisconsin's separate intestate inheritance statute,
Wis. Stat. Ann. 825.05(1) (West). [5]
Moreover, the retroactive support payments ordered by the court cannot serve to establish
an earlier date of entitlement to benefits under Section 216(h)(3)(B), 42 U.S.C. 416(h)(3)(B),
in this case. Under that section, the date on which support contributions began may
provide an alternative basis for determining entitlement of an illegitimate child
to benefits on the account of a disabled parent. However, that section operates only
where the support contributions predate the onset of the parent's disability. Because
the child in this case was born after the father's period of disability began, any
retroactive support payments ordered by the court cannot possibly predate the account
holder's onset of disability.
CONCLUSION
March 5, 1982, the date on which the account holder first admitted paternity of the
claimant in open court, is the appropriate date on which to base entitlement to benefits
As OGC advised in R~,NCIF A/N ~ OGC (P~) to SSA, 7/21/65', the first date on which
the requirements of Wisconsin's intestate inheritance statute were met controls, notwithstanding
the later court order of paternity on June 6, 1982 which also satisfied the requirements
of the intestate inheritance statute. In addition, for the reasons outlined above,
any earlier dates cannot be justified in this case (e.g., the date of the positive
blood test results or the date from which support payments were retroactively ordered).