SSR 68-73: SECTION 216(h)(2)(A). -- RELATIONSHIP -- CHILD BORN OUTSIDE OF MARRIAGE -- RIGHTS OF INHERITANCE FROM FATHER

20 CFR 404.1101 and 404.1109

SSR 68-73

The child-claimant was born out of wedlock in Arizona, then the domicile of his natural father. After the natural father died domiciled in Colorado, the child's mother filed an application on his behalf for child's insurance benefits based on the natural father's earnings record. Held. (1) under Arizona law the child was at birth the legitimate child of his natural father. (2) The courts of Colorado, for purposes of applying its laws of distribution of intestate personalty, would recognize the child's legitimate status as created under Arizona law since it appears such recognition would not contravene the public policy of Colorado. Accordingly, the child has the requisite status under section 216(h)(2)(A) of the Social Security Act for entitlement to child's insurance benefits.

In 1957, G began living with the worker, R, in Colorado. Early in 1958 the couple moved to Arizona where they continued their cohabitation and in July 1958, a child, C, was born to them. C's birth certificate listed R as the father, R, domiciled in Arizona at the time of C's birth, lived with and supported C and G in Arizona until he left the household in November 1958, thereafter making no further contributions. C and G then returned to Colorado. Following R's death in Colorado in February 1967, then his domicile, G filed an application on behalf of C for child's insurance benefits on R's earnings record.

Section 216(h)(2)(A) of the Social Security Act provides, in pertinent part, that in determining whether an applicant is the child of a deceased insured individual, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. An applicant having the status of "child" for such purpose has the status of "child" under section 216(h)(2)(A) of the Act. Accordingly, the issue is whether the applicant, C, would be considered by the courts of colorado (the State in which R died domiciled) to be the "child" of R for purposes of distribution of intestate personalty.

Under the law of Arizona (the State in which R was domiciled at the time of C's birth) C had from birth the personal status of legitimate child of his father. Under that law, every person born after March 17, 1921, is the legitimate child of his natural parents. Section 14-206, Arizona Revised Statutes Annotated.

Further, the general choice-of-laws rule re personal status for purposes of inheritance, as set out in 87 A.L.R. 2d 1274, 1280 (1963), is that:

* * * the courts in an overwhelming majority of jurisdictions take the position that the question of whether a particular child has acquired the requisite status of legitimacy to bring him within the class of persons who are permitted to inherit by the law of the situs is a question, not of descent or distribution, but of personal status, and as such is governed by the personal law of the child, and the existence or acquisition of a legitimate status by the child's personal law will be given effect under the inheritance law of the situs (so long as such recognition does not violate the public policy of the forum or situs), as will the denial of such status.

* * * it is the policy of the law to hold legitimate everywhere a child once legitimated, 5 R.C.L. 920. In re Forney's Estate, 43 Nev. 227, 239, 186 P 678, 679 (1920).

Although there are no Colorado decisions directly in point, it is reasonable to assume that the courts of Colorado would follow the above-stated general rule, and recognize C's legitimate status under Arizona law with respect to R, his father, for purposes of distribution of intestate personalty in colorado.

It seems unlikely that the application of the Arizona law would be rejected as contrary to the public policy of colorado in a view of the statutory provision permitting illegitimates to inherit from their father merely:

* * * if the said father, during his lifetime, shall in writing, by his conduct, or otherwise have acknowledged said children to be his and shall have regularly contributed to their support and maintenance for a reasonable period prior to his death * * *. Section 153-2-8, Colorado Revised Statutes 1963.

Furthermore, the statutory and decisional laws of Colorado strongly favor legitimacy, as indicated by the following citations from the Colorado Revised Statutes 1963:

Section 46-1-1(2) -- A divorce shall not in anywise affect the legitimacy of any child of a marriage, nor its right to inherit the property of its father or mother.

Section 46-3-5 -- Any child born as issue of a void or voidable marriage shall be the legitimate child of each of said parents.

"* * * All presumptions favor legitimacy, In Re Seddon's Estate, 110 Colo. 528, 136 P.2d 285 (Colo.)." Lanford v. Lanford, 377 P.2d 115, 116 (Colo. 1962).

Accordingly, it is held that since C was legitimate under Arizona law, Colorado would recognize the legitimate status of C and accord C rights of inheritance from R under the Colorado laws concerning distribution of intestate personalty. Therefore C has the requisite status for purposes of entitlement to child's insurance benefits.

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