TN 35 (05-11)

Applicable Law

Louisiana law does not explicitly answer the question of whether an act that grants inheritance rights operates prospectively from the date of the act or retroactively to the date of birth. But agency regulations provide that a claimant may receive child’s insurance benefits from the first month that he or she satisfies all requirements of entitlement. Similarly, agency policy provides that actions that give inheritance rights operate only from the date of their occurrence. See Social Security Ruling 85-17. Since Louisiana law is silent on the inheritance rights effective date, we therefore follow agency policy and determine that an action that gives inheritance rights operates prospectively from the date of the occurrence. If the date when the child meets all the requirements of entitlement or the date the action that gives inheritance rights is uncertain, submit a request for a legal opinion to the RCC in accordance with GN 01010.815.

Louisiana Intestacy Law For Claims Adjudicated After June 28, 2005:

INTESTATE SUCCESSION

I.   Louisiana law provides that in the absence of transferring of property by a valid testament or will, the undisposed property of the deceased is passed to his descendants (e.g., children and grandchildren), ascendants (e.g., parent or grandparent), and collaterals (e.g., aunt or uncle), by blood or by adoption, and to his spouse, when the spouse is not separated through a court proceeding.

1. Descendants succeed to the property of their ascendants.

2. Children are those persons born of the marriage, adopted, or whose filiation to the parent has been established in the manner provided by law. Filiation is the established relationship of a child to a parent. Filiation gives a person the right to inherit intestate property, which is property owned by a person who died without a valid will.

PARENT-CHILD RELATIONSHIP

The following Parent-Child Relationship section shows the different methods by which a person can establish the parent-child relationship (filiation), giving the child inheritance rights under Louisiana law.

II.  Under Louisiana law, a child has the right to inherit property owned by a parent who died without a valid will after the child or the parent has established the parent-child relationship under any of the following methods:

1. (I) Maternity (when child not conceived by artificial means).

   Maternity may be established at any time by a preponderance of the evidence. To meet the preponderance of evidence standard of proof, the evidence must show that maternity is more probable than not.

2. (I) Presumption of Paternity.

   1. The husband of the mother is presumed to be the father of a child born during the marriage.

   2. The husband of the mother is presumed to be the father of a child born within three hundred days from the date of termination of the marriage.

      1. If a child is born within three hundred days from the day of termination of the marriage and the mother has married again before the child is born, the first husband is presumed to be the father.

      2. The first husband may deny paternity through a court action by presenting clear and convincing evidence to the court that supports he is not the father of the child. To meet the clear and convincing evidence standard of proof, the evidence, taken as a whole, must show that the facts sought to be proven are highly probable.

      3. If the first husband obtains a court judgment finding that he is not the father of the child, the second husband is presumed to be the father.

   3. A man who marries the mother of a child not filiated to another man is presumed to be the father of the child if, with the mother’s agreement, he acknowledges the child by executing a writing before a notary public or other officer authorized to perform that function, in the presence of two witnesses, or by signing the child’s birth certificate. The mother’s agreement requires a voluntary action intended to have legal consequences, such as signing an affidavit. Filiation is the established relationship of a child to a parent.

   4. In the absence of a marriage, a man that acknowledges a child not filiated to another man is presumed to be the father of that child if he acknowledges the child by executing a writing before a notary public or other officer authorized to perform that function, in the presence of two witnesses, or by signing the child’s birth certificate. Filiation is the established relationship of a child to a parent.

3. (I) Establishment of Paternity.

   1. The mother of a child may initiate a court action to establish both that her former husband is not the father of the child and that her present husband is the father.

      1. The burden of proof is by clear and convincing evidence. To meet the clear and convincing evidence standard of proof, the evidence, taken as a whole, must show that the facts sought to be proven are highly probable.

      2. A judgment by the court decreeing that the former husband is not the father of the child must also decree that the present husband is the father of the child.

   2. A man may at any time initiate a court action to establish his paternity of a child.

   3. A child may initiate a court action to establish paternity even though he is presumed to be the child of another man.

      1. Louisiana recognizes a child’s filiation to more than one father. Filiation is the established relationship of a child to a parent.

      2. If the court action is initiated when the alleged father is alive, a child shall prove paternity by a preponderance of evidence. To meet the preponderance of evidence standard of proof, the evidence must show that maternity/paternity is more probable than not.

      3. If the court action is initiated after the death of the alleged father, a child shall prove paternity by clear and convincing evidence. To meet the clear and convincing evidence standard of proof, the evidence, taken as a whole, must show that the facts sought to be proven are highly probable.

      4. A child may present all relevant evidence to prove paternity, such as blood tests, an informal acknowledgment of paternity, and cohabitation of the mother and father at the time of conception.

         i. Although alone insufficient to prove paternity, scientific testing provides persuasive and objective evidence that can help establish paternity by a preponderance of evidence. To meet the preponderance of evidence standard of proof, the evidence must show that maternity/paternity is more probable than not.

         ii. A certified report of blood or tissue sampling which indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity.

4. (I) Child Conceived by Artificial Means.

   Submit a request for a legal opinion to RCC per GN 01010.800 if Louisiana law is involved, and the matter concerns fertilization by artificial means or other exceptional circumstances.

5. (I) Adoption.

   1. An adopted person is considered for all purposes to be the legitimate child and heir of the adoptive parent. An adopted child has the right to inherit from the adoptive parent.

   2. Refer to GN 00306.160 to determine the effective date of adoption.

Louisiana Intestacy Law For Claims Adjudicated On Or Before June 28, 2005:

NOTE: The provisions in section A. below were legitimating provisions that operated prospectively only, from the date of the legitimating act. For any provisions effective 01/01/75 or later, submit to the RCC per GN 01010.815 ff. for a determination on whether the applicable intestacy law provision operates prospectively from the date of the act giving inheritance rights, or retroactively to the date of the NH’s death (or the child’s birth, in a case involving benefits on the record of a living NH).

Child acquires status of child and parent acquires status of parent if:

1. for claims adjudicated before 09/03/80:

   1. parents who could have married at the time the child was conceived later intermarry and formally or informally acknowledge the child, either before or after the marriage; or

   2. effective 09/07/79, parents intermarry and formally or informally acknowledge the child, either before or after the marriage; or

   3. effective 09/12/75, an act is passed before a notary and two witnesses declaring that it is the intention of the father or mother making the declaration to legitimate the child, provided there exists at the time of the child’s conception no legal impediment to the marriage of the father and mother; or

   4. an act is passed before a notary and two witnesses declaring that it is the intention of the father or mother making the declaration to legitimate the child, provided there exists at the time of the child’s conception or, at the time of the child’s legitimation, no legal impediment to the marriage of the father and mother, and the legitimating parent has at the time of the legitimation no legitimate descendants (or prior to 07/26/72, no legitimate ascendants); or

2. for claims adjudicated on or after 09/03/80:

   1. effective 01/01/75, the parents intermarry and formally (see item C. below) or informally (see item F. below) acknowledge the child, either before or after the marriage; or

   2. effective 01/01/75, an act is passed before a notary and two witnesses declaring that it is the intention of the father or mother to legitimate the child; or

3. effective 01/01/82, clear and convincing evidence shows that the child was formally acknowledged by its deceased alleged father, which must be accomplished by either (1) a declaration executed before a notary public in the presence of two witnesses, or (2) in the registering of the birth or baptism of the child; or

4. effective 01/01/82, the father was (or may be) declared to be the father of the child in a civil action brought within one year of the death of the alleged father or nineteen years of the child’s birth, whichever comes first (for claims filed on or after 11/27/98, or pending on that date, a civil action is no longer required; SSA may make the determination of paternity with no time limit using a preponderance of the evidence standard of proof if the alleged father is living, and a clear and convincing standard of proof if the alleged father is deceased). In determining whether a preponderance of the evidence standard is met, if the father is living, one may consider evidence that the father open and notoriously treated the child as his own and did not refuse to support the child; or

5. effective 01/01/82, it is shown by clear and convincing evidence that a deceased alleged father, during his life, openly and notoriously treated the child as his own and did not refuse to support the child; or

6. effective 09/10/82, by establishing paternity of a living alleged father by a preponderance of the evidence, or of a deceased alleged father by clear and convincing evidence. Such evidence may include, but is not limited to, scientific evidence and evidence of informal acknowledgment, which consists of statements and actions of a continuous, habitual, and unequivocal nature and of sufficient frequency that there can be little doubt that the father truly believed himself to be the child’s father. This may include:

   1. acknowledgment in formal writings;

   2. acknowledgment in public or private conversations;

   3. causing the education of the child as his own;

   4. living in concubinage with the mother at the time of the child’s conception;

   5. rearing the child in his home;

   6. naming the child in his will;

   7. giving the child the father’s surname; and

   8. holding out the child in the community as his own.

   If the child’s status is sought through informal acknowledgment, the child must have applied for benefits within one year of the alleged parent’s death or nineteen years of the child’s birth, whichever occurs first; however, for claims filed on or after 11/27/98, or pending on that date, this time limit no longer applies.

   NOTE: Effective 08/15/95, a certified report of blood or tissue samples (including DNA tests) indicating a 99.9% or higher probability of paternity creates a rebuttable presumption of paternity if the alleged father is alive. When the alleged father is deceased, Louisiana courts have held that a scientific test, by itself does not constitute clear and convincing evidence of paternity; the courts require corroboration of DNA test results with “other credible evidence” such as informal acknowledgment by the alleged father prior to death; testimony from the surviving parent; or testimony from unrelated credible witnesses. In the absence of a precedent opinion, submit the case to the RCC for an opinion on whether clear and convincing evidence exists.

7. effective 07/23/80 through 09/10/82, by establishing paternity of a living or deceased alleged father by a preponderance of the evidence, which may include, but is not limited to, scientific evidence and evidence of informal acknowledgment (see item F. above; and note that for the period of time from 7/23/80 through 9/11/81, evidence that the mother and the alleged father were living in a state of concubinage at the time the child was conceived creates a presumption of paternity); or

8. prior to 07/23/80, by establishing paternity of a living or deceased alleged father in one of three ways:

   1. by private writings of the father which acknowledge the child;

   2. by public or private acknowledgment, or by causing the education of the child; or.

   3. by showing that the mother was living in a state of concubinage with the father at the time the child was conceived.

   NOTE: A child can have simultaneous inheritance rights from both a legal father (mother’s husband) and a biological father. Therefore, if a child has inheritance rights through acknowledgment from his/her biological father, that child may be considered to have the status of child with regard to the biological father, even though he/she is presumed to be the legitimate child of the legal father. See GN 00306.021.

9. Child Conceived by Artificial Means after NH’s Death.

   Effective 06/21/01 through 06/19/03, by showing the following:

   1. the child was conceived after the death of the father;

   2. the father specifically authorized in writing his surviving spouse to use his gametes;

   3. the child was born to the surviving spouse, using the gametes of the deceased father; and

   4. the child was born within two years of the death of the father.

NOTE: Any heir or legatee of the deceased father whose interest in the succession of the deceased father will be reduced by the birth of a child conceived as provided in section I. above shall have one year from the birth of such child within which to bring an action to disavow paternity.

Effective 06/20/03, by showing the following:

1. the child was conceived after the death of a parent;

2. the parent specifically authorized in writing his or her surviving spouse to use his or her gametes;

3. the child was born to the surviving spouse, using the gametes of the deceased parent; and

4. the child was born within three years of the death of the parent.

NOTE: Any heir or legatee of the deceased parent whose interest in the succession of the deceased parent will be reduced by the birth of a child conceived as provided in section J. above shall have one year from the birth of such child within which to bring an action to disavow paternity.

Therefore, in addition to showing the child was born to the surviving spouse, you should develop (before submittal to the RCC):

• evidence of the genetic relationship between the child and the NH; this should include any relevant evidence such as fertility clinic records or doctor’s statements related to the collection of the deceased’s gametes and the transfer procedures used to impregnate the surviving spouse; and

• evidence that the NH authorized in writing his surviving spouse to use his gametes; gather documents such as the deceased NH’s will, affidavit, letters, or signed fertility clinic records in which the NH specifically addresses the use of his gametes.

Also obtain the claimant’s birth record and the NH’s death certificate to determine whether the claimant was born within three years of the NH’s death.

CAUTION: Per GN 00306.001C.1.c. do not issue a determination on any claim for child’s benefits involving posthumous reproduction until you get an RCC opinion.