You have requested our assistance in determining whether Deanne S~ is entitled to
benefits as the child of David ~. We conclude, for the reasons discussed below, that
she is not.
The relevant facts may be briefly summarized: Deanne S~ was born to Marilyn S~ on
June 13, 1981 in Platteville, Wisconsin. David K~, who was present at the hospital
at the time of the birth, was killed in an automobile accident on the same day on
his way home from the hospital. David and Marilyn were engaged to be married in October,
1981. On July 25, 1981, Marilyn S~ filed an application for child's benefits on behalf
of Deanne. The evidence in the claims file indicates that David had acknowledged his
paternity to numerous individuals. There is, however, no evidence of a written acknowledgement
in any form. David's name, date of birth, and birth place appear on the hospital birth
certificate. [1] Marilyn S~ indicates that David K~ was neither living with her nor contributing to
her support at the time of his death. In response to an inquiry by a Social Security
claims representative, the Platteville hospital reported that it had nothing in writing
by David K~ acknowledging in any way either his paternity or his responsibility for
the payment of hospital bills.
Deanne's claim was initially denied on September 21, 1981. At the time of the wage
earner's death, Wis. Stat. Ann. §852.05 (West) provided that an illegitimate child
could inherit from his or her father if the father had acknowledged his paternity
either in writing or in open court or had been adjudicated to be the father in a paternity
proceeding under Wis. Stat. §§52.2l to 52.45. None of these criteria were met in the
instant case, so entitlement could not be based on Section 216(h)(2) of the Social
Security Act. In addition, none of the alternative "federal" criteria for entitlement
specified in Section 216(h)(3) of the Social Security Act had been met. No written
acknowledgement of paternity, court finding of paternity, or court order of support
had been made prior to the death of the wage earner. Moreover, while there was other
"evidence satisfactory to the Secretary "that the wage earner was Deanne's father,
he was neither living with nor contributing to the support of Deanne or Marilyn at
the time of his death.
On October 6, 1981, Marilyn brought a paternity action in Wisconsin state court seeking
to have David declared as Deanne's father. David's mother, as the personal representative
of his estate, was a joint petitioner. Although Deanne's interests were represented
by a guardian-ad-litem, the action does not appear to have been genuinely contested.
On November 20, l981 the Court, following a hearing, declared that David K~ was the
father of Deanne S~.
This action had been brought pursuant to the new paternity action provisions of Wis.
Stat. Ann. §§767.45 to 767.53 {West). Laws 1979, Chapter 352 had repealed the former
provisions set forth at §§52.21 to 52.45 for the determination of paternity and had
enacted the new provisions. Paternity actions under the former provisions could only
be brought by a district attorney and only during the lifetime of the putative father.
J.M.S.v. Benson, 297 N.W.2d 18 (Wis. 1980); Estate of Blumreich, 267 N.W.2d 870 (Wis. 1978), appeal dismissed for want of a substantial federal question
439 U.S. 1061 (1979). However, new §767.45 provides that a paternity action may be
brought by the child, the child's mother, the putative father, or by the personal
representative of one of these persons if that person has died. Laws 1979, Chapter
352 also amended Wis. Star. Ann. §852.05(West) to provide that an illegitimate child
could inherit from his father if the father has been adjudicated to be the father
in a paternity proceeding under §§767.45 to 767.53. Laws l979, Chapter 352 was enacted
on May 21, l980, and took effect on July l, l981. Laws 1979, Chapter 352, §40. Its
provisions were applicable to all paternity proceedings pending on or commenced after
its effective date. Laws 1979, Chapter 352, §41.
Marilyn S~, through her attorney, has filed a request for reconsideration, contending
that because the wage earner has been adjudicated to be the father of Deanne in a
paternity proceeding, Deanne is his heir under Wisconsin law. We do not agree. We
may accept the judgment in the paternity action as valid. [2] Nevertheless, the dispositive fact in the present case is that the wage earner died
on June 13, 1981, whereas the amendments revising the paternity action provisions
and correspondingly changing the statutory provision on inheritance by illegitimates
were not effective until July l, 1981. At the time of the wage earner's death, §882.05
provided that an illegitimate child could inherit from his father if the father had
acknowledged his paternity either in writing or in open court or had been adjudicated
to be such in a paternity proceeding under §§52.21 to 52.45. In Estate of Blumreich, 267 N.W.2d 870 (Wis. 1978), appeal dismissed for want of a substantial federal question
439 U.S. 1061 (1979), the Wisconsin Supreme Court held that under this provision an
illegitimate child could not inherit from his father based on a posthumous determination
of paternity. The court also upheld the constitutionality of this provision as so
interpreted. [3] The Supreme Court dismissed the appeal in Blumreich for want of a substantial federal
question on January 8, 1979, less than one month after it had upheld the validity
of a similar New York provision in Lalli v. Lalli, 43g U.S. 259 (1978).
In Wisconsin, the descent and distribution of the estate of an intestate is to be
determined by the law in effect at the date of the decedent's death. Estate of Nelson, 64 N.W.2d 406 (Wis. 1954). Furthermore, Wisconsin follows the settled rule of statutory
construction that, absent language to the contrary, statutes are to be given prospective
effect only. Feest v. Allis Chalmers Corporation, 229 N.W.2d 651 (Wis. 1975); Swanke v. Oneida County,, 60 N.W. 2d 756 (Wis. 1953). We have found no indication in either the statute or
any cases that the amendment to §852.05 may be applied retroactively to individuals
such as the wage earner dying prior to July l, 1981. [4] Because at the time of the age earner's death an illegitimate child could not inherit
from his or her father based on a posthumous determination of paternity, Deanne S~
could not be the heir of the wage earner under Wisconsin law. This is so regardless
of whether a posthumous action for the determination of paternity could be properly
brought after July l, 1981, or whether that determination is a valid one.
We recognize that the equities in this case may be viewed as favoring the claimant,
and that either a federal court on direct review or a Wisconsin court in a similar
case may reach a different result based on these equities. However, the decision here
may not be based on speculation as to what a court may possibly decide. The result
we have reached is fully consistent with and required by the pertinent statutory provisions
and relevant judicial decisions. Were we to reach a contrary result, that result would
be equally applicable to numerous cases of wage earners dying long before July l,
l981. This would be so because under the new paternity provisions, an action may be
brought by a child within 19 years of his or her birth, and by any other individual
authorized to do so within 6 years of the child's birth. We also note that under SSA
policy, changes in State laws on inheritance are generally applicable only in cases
of wage earners dying on or after the effective date of such changes. See generally POMS GN 00306.135.
We also believe that an alternative ground for entitlement may exist. Under Section
216(h){3}(c)(ii), a claimant may be entitled to benefits as the child of a deceased
wage earner if the wage earner is shown by satisfactory evidence to have been the
father of the claimant and the wage earner was living with or contributing to the
support of the claimant at the time the wage earner died. Although there is "satisfactory"
evidence of the wage earner's paternity, it was determined that the wage earner was
neither living with nor contributing to the support of either Marilyn or Deanne at
the time he died. This determination was based on a response by Marilyn on a Statement
Regarding Contributions that the wage earner did not contribute toward her support
before his death, and a statement by the hospital that the wage earner had not assumed
responsibility for the payment of the hospital bill. We believe that when a child
is born either posthumously or shortly prior to the death of a wage earner, the support
requirement should be applied flexibly. Although in the instant case the wage earner
had not assumed personal responsibility for payment of the hospital bill at the time
of his death, the wage earner may well have intended to share in the expenses following
the completion of Marilyn's hospitalization. Moreover, Marilyn may well have viewed
"support" in the broad sense of continuing payment for all living expenses in stating
that the wage earner did not contribute toward her support. We believe that if reliable
(though not necessarily written) evidence that the wage earner paid any of Marilyn's
medical bills incurred during her pregnancy, intended to pay all or part of her hospital
expenses, or significantly contributed in any way (considering his erratic employment)
to her living expenses can be ascertained to exist, entitlement may be appropriate.
Finally, you have asked whether the statutory changes require corresponding changes
in CM 2422 (now POMS GN 00306.135). The Wisconsin entry states that an illegitimate child may inherit if the parents
intermarry, or the father acknowledges his paternity in writing or in open court or
has been adjudged in a paternity proceeding to be the father. This entry is still
correct, although there is now the question of whether the paternity proceeding under
the new provisions may be posthumous. There is no clear answer to this question. Although
§767.45 does authorize a child, mother, father, or the personal representative of
any of these persons to bring a paternity action, and thus allows the personal representative
of the father to bring an action after the father's death (as happened in this case),
the statute does not expressly authorize any other individual to bring a paternity
action against the personal representative of the father. In Blumreich, the Wisconsin Supreme Court cited the reference in the old paternity provisions
to arrest of the father, blood tests on the father, and the father's right of cross-examination
as evidence that such actions were required to be brought during the lifetime of the
father. The Court also relied on policy considerations involving spurious or delayed
claims against an individual's estate.
Apart from the reference to the right of the personal representative of the father
to bring a paternity action, the new provisions at §§767.45 to 767.53 contain similar
references to arrest of the father (§767.465), blood tests (§767.456(3)), rights of
cross-examination (§767.475), and other references which necessarily presume that
the alleged father is still alive. Moreover, the policy considerations of spurious
or delayed claims against an individual's estate still apply. We briefly discussed
this matter with a member of the Wisconsin legislative council, who expressed the
tentative view that the new provisions do not contemplate the filing of a paternity
action against the estate of an individual alleged to be a child's father. In the
absence of a court decision to the contrary, we conclude that unless the action is
brought by the personal representative of the alleged father, a paternity action may
not be maintained in Wisconsin following the death of the alleged father. We suggest
that this question be resubmitted to us if a future case involves a posthumous paternity
action brought by other than the personal representative of the alleged father, assuming
that the wage earner died on or after July l, 1981.
The claims folder is returned herewith.