B-180215, APR 15, 1975, 54 COMP GEN 858

B-180215: Apr 15, 1975

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WHO WERE NOT FORMALLY ACKNOWLEDGED IN ACCORDANCE WITH NEW YORK (STATE OF DOMICILE) INHERITANCE LAWS. STATE STANDARD OF PROOF WHICH ENCOURAGES SUCH DISTINCTIONS WILL NOT BE FOLLOWED. PRIOR COMPTROLLER GENERAL DECISIONS CONTRA WILL NO LONGER BE FOLLOWED. IF THERE IS NO DESIGNATED BENEFICIARY. THE MEMBER DID NOT DESIGNATE A BENEFICIARY AND WAS UNMARRIED AT HIS DEATH. THE CLAIMANTS HAVE CHARACTERIZED THEMSELVES AS "ILLEGITIMATE" CHILDREN OF THE DECEDENT. THE CLAIM OF THE CHILDREN WAS INITIALLY DENIED ON THE BASIS THAT THE MEANING OF "CHILD OR CHILDREN" AS USED IN THE STATUTE REQUIRED A DETERMINATION AS TO WHETHER THE CLAIMANTS WERE ELIGIBLE TO INHERIT FROM THE DECEDENT UNDER THE INTESTATE SUCCESSION STATUTES OF NEW YORK.

B-180215, APR 15, 1975, 54 COMP GEN 858

DECEDENTS' ESTATES - COMPENSATION - CHILDREN - PATERNITY STATUS CLAIM BY DECEASED FEDERAL EMPLOYEE'S CHILDREN, WHO WERE NOT FORMALLY ACKNOWLEDGED IN ACCORDANCE WITH NEW YORK (STATE OF DOMICILE) INHERITANCE LAWS, MAY NEVERTHELESS BE ALLOWED. RECORD ESTABLISHES FACT OF PATERNITY AND OTHER NEW YORK LAWS CONFERRING ANALOGOUS GOVERNMENTAL BENEFITS DO NOT REQUIRE FORMAL JUDICIAL ORDER OF PATERNITY. DECEDENTS' ESTATES - COMPENSATION - CHILDREN - ILLEGITIMATE - EFFECT OF COURT DECISIONS RECENT SUPREME COURT AND LOWER FEDERAL COURT DECISIONS, PARTICULARLY THOSE APPLYING THE FEDERAL LIFE INSURANCE STATUTE, INDICATE THAT DISTINCTIONS BETWEEN "LEGITIMATE" AND "ILLEGITIMATE" CHILDREN FOR PURPOSES OF RECEIPT OF BENEFITS SHOULD BE ABROGATED. THEREFORE, STATE STANDARD OF PROOF WHICH ENCOURAGES SUCH DISTINCTIONS WILL NOT BE FOLLOWED. PRIOR COMPTROLLER GENERAL DECISIONS CONTRA WILL NO LONGER BE FOLLOWED.

IN THE MATTER OF SURVIVORS' CLAIM FOR UNPAID COMPENSATION DUE DECEASED FEDERAL EMPLOYEE, APRIL 15, 1975:

THIS MATTER CONCERNS AN APPEAL FROM SETTLEMENT ACTION BY OUR TRANSPORTATION AND CLAIMS DIVISION ON OCTOBER 4, 1974, WHICH DENIED THE CLAIM OF CHILDREN FOR UNPAID COMPENSATION PAYABLE TO THEIR NATURAL FATHER, DECEASED, WHO HAD BEEN AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY IN WATERVLIET, NEW YORK.

THE CONTROLLING STATUTE, 5 U.S.C. SEC. 5582(B) (1970), PROVIDES THAT MONEY DUE AN EMPLOYEE AT THE TIME OF DEATH SHALL BE PAID IN THE FOLLOWING ORDER OF PRECEDENCE:

FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE EMPLOYEE IN A WRITING RECEIVED IN THE EMPLOYING AGENCY BEFORE HIS DEATH.

SECOND, IF THERE IS NO DESIGNATED BENEFICIARY, TO THE WIDOW OR WIDOWER OF THE EMPLOYEE.

THIRD, IF NONE OF THE ABOVE, TO THE CHILD OR CHILDREN OF THE EMPLOYEE AND DESCENDANTS OF DECEASED CHILDREN BY REPRESENTATION.

FOURTH, IF NONE OF THE ABOVE, TO THE PARENTS OF THE EMPLOYEE OR THE SURVIVOR OF THEM.

FIFTH, IF NONE OF THE ABOVE, TO THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE EMPLOYEE.

SIXTH, IF NONE OF THE ABOVE, TO THE PERSON OR PERSONS ENTITLED UNDER THE LAWS OF THE DOMICILE OF THE EMPLOYEE AT THE TIME OF HIS DEATH.

THE MEMBER DID NOT DESIGNATE A BENEFICIARY AND WAS UNMARRIED AT HIS DEATH. FOR THE LIMITED PURPOSE OF ASSERTING THIS CLAIM, THE CLAIMANTS HAVE CHARACTERIZED THEMSELVES AS "ILLEGITIMATE" CHILDREN OF THE DECEDENT, WHO HAD NO OTHER KNOWN CHILDREN.

FOLLOWING MANY PRIOR DECISIONS OF THIS OFFICE, THE CLAIM OF THE CHILDREN WAS INITIALLY DENIED ON THE BASIS THAT THE MEANING OF "CHILD OR CHILDREN" AS USED IN THE STATUTE REQUIRED A DETERMINATION AS TO WHETHER THE CLAIMANTS WERE ELIGIBLE TO INHERIT FROM THE DECEDENT UNDER THE INTESTATE SUCCESSION STATUTES OF NEW YORK, THE STATE WHERE THE MEMBER WAS DOMICILED AT HIS DEATH. APPLYING NEW YORK LAW TO THE FACTS OF THE CASE RESULTED IN A FINDING THAT THE CLAIMANTS COULD NOT TAKE BECAUSE AT THE TIME OF THEIR BIRTH, THEIR MOTHER WAS THE LAWFUL WIFE OF ANOTHER MAN; AND AN ORDER OF FILIATION TO ESTABLISH THE LEGAL PATERNITY OF THE DECEDENT WAS NEVER ISSUED UNDER NEW YORK LAW, EPTL SEC. 4 1.2(A)(2) (MCKINNEY 1965). THE CITED PROVISION ALLOWS AN ILLEGITIMATE CHILD TO INHERIT FROM THE FATHER ONLY IF AN APPROPRIATE STATE COURT ISSUES AN ORDER OF FILIATION DECLARING PATERNITY IN A PROCEEDING INSTITUTED DURING THE PREGNANCY OF THE MOTHER OR WITHIN 2 YEARS AFTER BIRTH OF THE CHILD.

THE RECORD CONVINCINGLY ESTABLISHES THAT CLAIMANTS ARE, IN FACT, THE NATURAL CHILDREN OF DECEDENT. MOREOVER, BOTH THE CIVIL SERVICE COMMISSION AND THE OFFICE OF FEDERAL EMPLOYEES' GROUP LIFE INSURANCE, RELYING ON ESSENTIALLY THE SAME EVIDENCE BEFORE US, DETERMINED THAT CLAIMANTS ARE CHILDREN OF DECEDENT AND HAVE PAID SUMS IN EXCESS OF $20,000 TO THEM. THE UNPAID COMPENSATION HERE IN QUESTION EQUALS APPROXIMATELY $2,194.

ACCORDINGLY, THE ISSUE FOR DETERMINATION IS WHETHER THE PHRASE "CHILD OR CHILDREN," AS USED IN 5 U.S.C. SEC. 5582(B) (1970), INCLUDES CHILDREN OF A DECEASED FEDERAL EMPLOYEE WHO CANNOT INHERIT FROM THEIR NATURAL FATHER UNDER NEW YORK LAW BECAUSE HIS PATERNITY HAS NOT BEEN JUDICIALLY DETERMINED IN A FILIATION PROCEEDING.

SINCE IT IS GENERALLY RECOGNIZED THAT THERE IS NO BODY OF FEDERAL DOMESTIC RELATIONS LAW, ISSUES OF PERSONAL STATUS ARISING UNDER THE CITED STATUTE ARE RESOLVED WITH REFERENCE TO RELEVANT STATE LAW. CONSEQUENTLY, IN PRIOR DECISIONS REQUIRING OUR DETERMINATION AS TO THE DEFINITION OF A DECEDENT'S "WIDOW OR WIDOWER," OR WHETHER ADOPTED CHILDREN AND STEP- CHILDREN ARE ENTITLED TO CONSIDERATION AS "CHILDREN," WE HAVE RELIED ON STATE LAW. ALTHOUGH THERE ARE A NUMBER OF STATE LAWS WHICH DEAL WITH SUCH QUESTIONS, WE HAVE IN THE PAST LOOKED ONLY TO STATE LAWS OF INTESTATE SUCCESSION TO DECIDE WHETHER "ILLEGITIMATE" CHILDREN SHOULD TAKE UNDER THE THIRD ORDER OF PRECEDENCE.

MOST OF OUR DECISIONS ON THE ILLEGITIMACY QUESTION WERE RENDERED BEFORE LEVY V. LOUISIANA, 391 U.S. 68 (1968), IN WHICH THE SUPREME COURT FIRST RECOGNIZED THE GENERAL RIGHT OF ILLEGITIMATE CHILDREN TO SHARE EQUALLY WITH LEGITIMATE CHILDREN IN GOVERNMENTALLY CONFERRED BENEFITS. THE COURT HELD THAT THE LOUISIANA WRONGFUL DEATH STATUTE MADE AN INVIDIOUS DISCRIMINATION IN VIOLATION OF THE CONSTITUTION WHEN IT CREATED A DISTINCTION BETWEEN LEGITIMATE AND ILLEGITIMATE CHILDREN, BARRING THE LATTER FROM RECOVERING FOR THE DEATH OF A PARENT.

IN 1971 THE SUPREME COURT DECLINED TO EXTEND LEVY TO A STATE STATUTE OF INTESTATE SUCCESSION WHICH ALLOWED ACKNOWLEDGED ILLEGITIMATE CHILDREN TO INHERIT FROM THEIR FATHER ONLY IF HE WAS NOT SURVIVED BY LEGITIMATE CHILDREN, A WIFE, OR OTHER MORE REMOTE RELATIVES. SEE LABINE V. VINCENT, 401 U.S. 532 (1971). HOWEVER, IN WEBER V. AETNA CASUALTY AND SURETY CO., 406 U.S. 164 (1972), THE COURT DISTINGUISHED LABINE, AND MADE IT CLEAR THAT LEVY REMAINED VIABLE BY HOLDING THAT A STATE'S DENIAL OF EQUAL RECOVERY RIGHTS TO UNACKNOWLEDGED ILLEGITIMATES, UNDER ITS WORKMEN'S COMPENSATION LAWS, VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. THE COURT EXPLICITLY STRUCK DOWN THE DISCRIMINATORY CLASSIFICATION SINCE THE DECEDENT COULD NOT ACKNOWLEDGE THE CHILDREN IN THE MANNER PRESCRIBED BY STATE LAW BECAUSE HE WAS LAWFULLY MARRIED TO ANOTHER.

IN A SOMEWHAT RELATED CASE HOLDING THAT A STATE MUST ACCORD AN "ILLEGITIMATE" CHILD EQUAL RIGHTS TO NEEDED SUPPORT FROM THE FATHER AS IT GRANTED A "LEGITIMATE" CHILD, THE SUPREME COURT RECOGNIZED -

*** THE LURKING PROBLEMS WITH RESPECT TO PROOF OF PATERNITY. THOSE PROBLEMS ARE NOT TO BE LIGHTLY BRUSHED ASIDE, BUT NEITHER CAN THEY BE MADE INTO AN IMPENETRABLE BARRIER THAT WORKS TO SHIELD OTHERWISE INVIDIOUS DISCRIMINATION. GOMEZ V. PEREZ, 409 U.S. 535, 538 (1973).

IN THE ONLY SUPREME COURT CASE AFTER LEVY CONCERNING THE ELIGIBILITY OF ILLEGITIMATE CHILDREN FOR FEDERAL BENEFITS, A PORTION OF THE SOCIAL SECURITY ACT, 42 U.S.C. SEC. 416(H)(3)(B) (1970), WHICH DISQUALIFIED SOME CATEGORIES OF ILLEGITIMATE CHILDREN FROM ELIGIBILITY FOR DISABILITY BENEFITS, WAS INVALIDATED AS A DENIAL OF "THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE DUE PROCESS PROVISION OF THE FIFTH AMENDMENT." JIMENEZ V. WEINBERGER, 417 U.S. 628, 637 (1974).

WITHOUT SIGNIFICANT EXCEPTION, NUMEROUS LOWER FEDERAL COURT DECISIONS IN THE LAST 10 YEARS CONSTRUING THE TERMS "CHILD" AND "CHILDREN" IN FEDERAL STATUTES HAVE HELD THAT CHILDREN CANNOT BE EXCLUDED FROM ELIGIBILITY FOR FEDERAL BENEFITS ON THE BASIS OF THEIR STATUS AS "ILLEGITIMATE" UNDER STATE LAW, EVEN WHERE THE EXCLUSION IS NOT AN ABSOLUTE BAR. RECOGNIZING THAT ISSUES OF PERSONAL STATUS MUST BE DETERMINED WITH REFERENCE TO STATE LAWS, THESE CASES HAVE DECIDED IN FAVOR OF "ILLEGITIMATES," NOTWITHSTANDING STATE STATUTES OF INTERSTATE SUCCESSION WHICH, BY IMPOSING ONEROUS FORMAL PROCEDURES FOR ESTABLISHING PATERNITY, OPERATED TO DISQUALIFY THEM AS HEIRS. SEE IN RE INDUSTRIAL TRANSPORTATION CORP., 344 F.SUPP. 1311 (E.D. N.Y. 1972); SEE ALSO MILLER V. LAIRD, 349 F.SUPP. 1034 (D. D.C. 1972); AND CASES CITED THEREIN.

ALTHOUGH THERE ARE NO REPORTED COURT DECISIONS CONSTRUING THE TERMS "CHILD OR CHILDREN" AS USED IN 5 U.S.C. SEC. 5582 (1970), WE BELIEVE THE LINE OF DECISIONS RENDERED IN THE FEDERAL EMPLOYEES' GROUP LIFE INSURANCE CASES IS CLOSELY ANALOGOUS SINCE THE STATUTORY DISTRIBUTION PROVISIONS, 5 U.S.C. SEC. 8705 (1970), ARE VIRTUALLY IDENTICAL AND WERE PATTERNED AFTER 5 U.S.C. SEC. 5582 (1970). ALL SUCH CASES OF WHICH WE ARE AWARE HAVE HELD THAT "ILLEGITIMATE" CHILDREN ARE INCLUDED IN THE STATUTORY CATEGORY OF "CHILD OR CHILDREN," AND ALSO THAT THE NATURAL PARENT OF SUCH A CHILD (NOT ADOPTED BY ANOTHER) MAY TAKE UNDER THE STATUTORY CATEGORY OF "PARENTS." THESE DECISIONS HAVE CONSISTENTLY HELD FOR "ILLEGITIMATE" CHILDREN EVEN WHERE IT WAS CLEAR UNDER RELEVANT STATE LAWS OF INTESTATE SUCCESSION THAT SUCH CHILDREN COULD NOT TAKE AS HEIRS AT LAW. THE LEADING INSURANCE DECISION IS METROPOLITAN LIFE INSURANCE COMPANY V. THOMPSON, 368 F.2D 791 (3D CIR. 1966), CERT. DENIED, 388 U.S. 914 (1967), REH. DENIED, 389 U.S. 891 (1967), WHICH CONCERNED THE STATUS OF A CHILD UNDER THE LAWS OF NEW YORK AND ALLOWED THE CHILD TO RECOVER THE LIFE INSURANCE PROCEEDS, EVEN THOUGH HE WAS "ILLEGITIMATE" AND COULD NOT HAVE INHERITED FROM HIS NATURAL PARENT UNDER NEW YORK LAW. THE THOMPSON CASE HAS APPARENTLY SETTLED ALL UNCERTAINTY ON THIS ISSUE FOR PURPOSES OF THE FEDERAL LIFE INSURANCE PROGRAM. SEE METROPOLITAN LIFE INSURANCE COMPANY V. BUCKLEY, 278 F.SUPP. 334 (S.D. MISS. 1967).

THE CITED SUPREME COURT CASES DO NOT APPEAR TO NULLIFY ALL STATES STATUTES THAT PRESCRIBED VARIOUS METHODS OF FORMALLY ESTABLISHING A PARENTAL RELATION WHERE THAT RELATIONSHIP IS RELEVANT; HOWEVER, THEY DO SIGNIFY THE ONGOING EVOLUTION, REFLECTING CHANGES IN SOCIAL AND POLITICAL ATTITUDES, OF A JUDICIAL DISPOSITION TO MITIGATE THE LEGAL INCAPACITIES AND ONEROUS BURDENS THAT STILL FLOW FROM "ILLEGITIMACY." THE TREND OF THE DECISIONS PROMPTS US TO MODIFY OUR PAST APPROACH TO THE FOLLOWING EXTENT. IN THIS, AND FUTURE CASES UNDER 5 U.S.C. SEC. 5582(B) (1970), IF THE RELEVANT STATE'S STATUTE OF INTESTATE SUCCESSION INCORPORATES RIGID PROCEDURAL REQUIREMENTS (SUCH AS THE NEW YORK FILIATION PROCEEDING) FOR ESTABLISHING PATERNITY BEFORE "ILLEGITIMATE" CHILDREN CAN INHERIT, WE WILL NOT CONSIDER OURSELVES PRECLUDED FROM CONSIDERING OTHER STATUTES IN THE SAME STATE WHICH DEAL WITH RECEIPT OF GOVERNMENTAL BENEFITS - E.G., STATE WRONGFUL DEATH OR WORKMEN'S COMPENSATION STATUTES - IN DETERMINING WHAT EVIDENCE OF PATERNITY MAY BE ACCEPTED.

APPLYING THE FOREGOING POLICY IN THIS CASE WE NOTE THAT AN APPELLATE COURT IN NEW YORK HAS HELD THAT THE REQUIREMENT FOR AN ORDER OF FILIATION IS UNCONSTITUTIONAL WHEN APPLIED TO BAR THE FATHER OF AN "ILLEGITIMATE" CHILD FROM MAINTAINING AN ACTION FOR THE CHILD'S WRONGFUL DEATH UNDER THE NEW YORK WRONGFUL DEATH STATUTE. HOLDEN V. ALEXANDER, 39 A.D. 2D 476, 336 N.Y.S. 2D 649 (SUP. CT., APP. DIV. 1972). FURTHERMORE, UNDER SECTION 2-11 OF THE NEW YORK WORKMEN'S COMPENSATION LAW (MCKINNEY 1965) THE TERM "CHILD" IS DEFINED TO INCLUDE AN "ACKNOWLEDGED ILLEGITIMATE CHILD DEPENDENT UPON THE DECEASED." AN ORDER OF FILIATION IS NOT REQUIRED TO PROVE PATERNITY; THE CLAIMANT NEED ONLY PRODUCE EVIDENCE TO SATISFY THE WORKMEN'S COMPENSATION BOARD THAT THE DECEASED ACKNOWLEDGED THE CLAIMANT AS HIS CHILD.

IN VIEW OF NEW YORK LAW PERTAINING TO THE ELIGIBILITY OF "ILLEGITIMATE" CHILDREN FOR WRONGFUL DEATH AND WORKMEN'S COMPENSATION BENEFITS NOTWITHSTANDING THE ABSENCE OF A FORMAL FILIATION PROCEEDING, WE ARE REVERSING OUR PREVIOUS DETERMINATION THAT SUCH A FILIATION PROCEEDING WAS NECESSARY AND WILL CONSIDER OTHER PROBATIVE EVIDENCE ON THE ISSUE OF PATERNITY. IN THIS CASE THE UNCONTROVERTED EVIDENCE SHOWS THAT THE CLAIMANTS ARE THE NATURAL CHILDREN OF DECEDENT; THEREFORE, PAYMENT TO THEM IN THE PROPER AMOUNT IS AUTHORIZED AND WILL BE MADE ACCORDINGLY.