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

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.

upport 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,

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.

y 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,

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:

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.

erally 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).

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.