SSR 85-17: SECTION 216(h)(2)(A) (42 U.S.C. 416(h)(2)(A)) CHILD'S INSURANCE BENEFITS -- PROSPECTIVE EFFECT OF INHERITANCE STATUTE -- WISCONSIN
20 CFR 404.354(b) and 404.355(a)
SSR 85-17
- The worker had been entitled to disability insurance benefits since February 22, 1980. In May 1982, the claimant's mother applied for child's insurance benefits on the claimant's behalf on the worker's earnings record. The claimant was born out of wedlock on June 30, 1980. On September 4, 1980, paternity proceedings against the worker were commenced in a Wisconsin court. The worker admitted in open court on March 5, 1982, that the claimant was his daughter, and the court entered a paternity order on June 8, 1982. Under Wisconsin's intestate inheritance statute, an illegitimate child can inherit from his or her father if the father has acknowledged his paternity in open court or has been adjudicated to be the father in a paternity proceeding. Held, although the court did not enter a paternity order until June 8, 1982, the requirements of Wisconsin's intestate inheritance statute were met as of March 5, 1982, the date the worker first admitted paternity of the claimant in open court. Therefore, the claimant was the worker's child under section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. 416(h)(2)(A), as of March 5, 1982.
A question was raised as to whether the claimant was entitled to child's insurance benefits on the worker's earnings record as of June 8, 1982, the date a Wisconsin court had entered an order of paternity and support, or whether an earlier entitlement date could be established.
The claimant was born out of wedlock on June 30, 1980. On September 4, 1980, paternity proceedings against the worker were commenced in a Wisconsin court. Shortly thereafter, the worker denied paternity of the claimant in court. In December 1980, the worker agreed to admit paternity if blood tests established him to be the claimant's father. The results of the blood tests wee 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, the worker admitted paternity and agreed to assume support obligations for the claimant. The court entered the paternity and support order on June 8, 1982. In addition to ordering prospective support payments of $10 per week commencing June 4, 1982, the court also ordered past support in the amount of $1,900. The Wisconsin Child Support Coordinator advised that 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).
The worker had been entitled to disability insurance benefits since February 22, 1980. On May 26, 1982, the claimant's mother filed an application for child's insurance benefits on behalf of the claimant.
Section 216(h)(2)(A) of the Social Security Act (the Act), 42 U.S.C. 416(h)(2)(A), provides that a claimant is a worker's child if the claimant has the right, under appropriate State law, to inherit the worker's intestate personal property. 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 adjudged to be the father in a paternity proceeding under Wis. Stat. Ann. Ch. 767 (West). In this case, there was a court order of paternity dated June 8, 1982. There was also an earlier acknowledgment of paternity in open court on March 5, 1982.[1] It is concluded that the March 5, 1982, oral acknowledgment of paternity in open court, without more, satisfied the statutory requirement. An oral acknowledgment of paternity in open court need only be clear and unequivocal when made to satisfy the Wisconsin statutory requirement. In In re Traver's 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, the claimant first satisfied the requirements of Wis. Stat. Ann. 852.05 (West) for intestate inheritance from the worker by the March 5, 1982, oral acknowledgment of paternity by the worker in open court.
Wis. Stat. Ann. 237.06, which has been slightly modified and renumbered as Wis. Stat. Ann. 852.05 effective April 1, 1971, operates prospectively and does not confer potential rights of inheritance on an illegitimate child before an acknowledgment or court order of paternity. In its present form, the relevant section of Wis. Stat. 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.
The 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 here is not a statute that confers legitimacy; rather it confers only inheritance rights. Therefore, because there is no case law or legislative history to the contrary, it is concluded that actions which confer inheritance rights operate only from the date of their occurrence.
In this case, the paternity order appeared to have included some retroactive elements. Past support and a corrected birth certificate were ordered. There is, however, 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).[2]
In summation, although the court did not enter a paternity order until June 8, 1982, the requirements of Wisconsin's intestate inheritance statute were met as of March 5, 1982, the date the worker first admitted paternity of the claimant in open court. Therefore, the claimant was the worker's child under section 216(h)(2)(A) of the Act as of March 5, 1982. For the reasons outlined above, the establishment of an earlier date could not be justified (e.g., the date of the positive blood test results or the date from which support payments were retroactively ordered).
[1] The mother of the claimant believed that there was also an acknowledgment of paternity in open court in December 1980. At that time, the worker agreed to admit paternity based on the results of blood tests which were returned on November 24, 1981. Any contingent admission of paternity in December 1980, however, was not sufficiently clear and unequivocal to satisfy the statutory requirement. See In re Traver's Estate, 18 Wis. 2d 416, 118 N.W.2d 932 (1963), interpreting Wis. Stat. Ann. 237.06, an essentially similar predecessor of the present Wisconsin statute. Moreover, the results of the blood test on November 24, 1981, without more, did not satisfy the statutory requirement.
[2] Under Wis. Stat. Ann. 52.37(1) (West), court orders of paternity included an order to make support payments retroactive to the date of the child's birth. That section governs paternity actions commenced before July 1, 1981, when the statute was renumbered as Wis. Stat. Ann. 767.51(4) (West) and amended to limit past support to the period following commencement of the paternity lawsuit. L.1979, c. 352, §§ 9-11, 25, effective July 1, 1981. Both the prior and present statutes also permit issuance of a new birth certificate which names the father.