In the
United States Court of Appeals
For the Seventh Circuit

No. 95-1918

CHRISTI HAAS, as parent and natural guardian
   of SCOTT M. GLENN, II,

Plaintiff-Appellant,

v.

SHIRLEY S. CHATER, Commissioner of Social Security,

Defendant-Appellee.


Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 94 C 238--Roger B. Cosbey, Magistrate Judge.


ARGUED NOVEMBER 27, 1995--DECIDED MARCH 6, 1996



   Before POSNER, Chief Judge, and BAUER and
DIANE P. WOOD, Circuit Judges.

   POSNER, Chief Judge. A dependent child of a wage
earner is entitled to "child's insurance benefits" under the
Social Security Act if the wage earner is insured under
the Act and dies, becomes disabled, or reaches the age
of 65. 42 U.S.C. sec. 402(d). Problems of determining entitle-
ment sometimes arise when the wage earner dies and was
not married to the child's mother. The Act contains an
exhaustive list of methods of establishing entitlement to
child insurance benefits in such a case: proof that the
wage earner would have been married to the child's mother
but for a technical deficiency in the marriage; a written
acknowledgment of paternity by the wage earner; a
judicial decree that the wage earner was the child's
father, provided the decree was issued before the wage
earner died; a court order that the wage earner contribute
to the support of the child because the wage earner was
the child's parent; a determination by the Social Secur-
ity Administration that the wage earner was the parent
of the child and was living with or contributing to the
support of the child when the wage earner died; or proof
that the child was entitled to inherit from the wage earner
under the law of intestate succession of the wage earner's
state of domicile. 42 U.S.C. secs. 416(h)(1)(B), (2), (3). Only
the last-mentioned of these methods (sec. 416(h)(2)(A)) was
available to Scott M. Glenn, II, the applicant in our case, born
November 6, 1992, eight months after the death in an automobile
accident of Scott M. Glenn, the wage earner. The child's
mother, Christi Haas, had not been married to the wage
earner or living with him; no paternity decree or support
order had been issued; and he had provided no support
directly or indirectly to the unborn child.

   One month after Scott's birth, his mother filed a petition in
an Indiana state court to establish the wage earner's
paternity. The wage earner's mother, who was the per-
sonal representative of his estate, testified in support of
paternity, and the court entered a declaration that the
wage earner was indeed the child's father. The estate
later filed a suit for wrongful death based on the acci-
dent in which the wage earner had been killed. The court
in which that suit was filed determined that the child,
as the only dependent next of kin of a decedent who had
left no widow, was entitled to the proceeds of the suit
(which was eventually settled). Ind. Code sec. 34-1-1-2.

   The administrative law judge acknowledged that there
was satisfactory evidence of the wage earner's paternity
but nevertheless denied the application for benefits. Young
Glenn's eligibility for benefits depended on his eligibility
to inherit under Indiana's intestate succession law, and
Ind. Code sec. 29-1-2-7(b) provides that, "for inheritance,"
a child born out of wedlock will be treated as if his parents
were married only if

(1)   The paternity of the child has been established
by law in a cause of action that is filed:

(A)   During the father's lifetime; or

(B)   Within five (5) months after the father's
death; or

(2)   The putative father marries the mother of the
child and acknowledges the child to be his own. [Em-
phasis added]

The suit to establish the wage earner's paternity "for in-
heritance" had been brought one month after the child's
birth and therefore nine months after the wage earner's
death: too late.

   The appellant argues that the five-month statutory dead-
line is merely a statute of limitations and hence is waived
by not being pleaded. It was not pleaded in the paternity
suit. In fact that suit was uncontested. The most common
type of paternity suit is one brought against a man who
denies paternity, or at least doesn't want the financial
burdens of fatherhood. Here the man was dead, and ap-
parently left no assets other than a claim for wrongful
death. Since the personal representative of his estate be-
lieved herself to be the child's grandmother, and since un-
less she herself had been dependent on the decedent, of
which there is no hint in the record, she would have had
no personal stake in the wrongful-death action, she had
no financial incentive to resist the paternity suit and she
did not resist it. She had nothing to lose and money for
the child whom she believed to be her grandson to gain.

   Although the facts are unusual and doubts about the
wage earner's paternity slight, the danger of collusive
paternity suits is not slight. Whenever the putative father
dies, a child or children can sue to establish paternity,
knowing that the father's estate, if it has no assets or
at least no assets other than what a child might claim,
may not bother to contest the suit. In such a case a
spurious allegation of paternity might provide the basis
for awards of child insurance benefits, for certain life in-
surance or employee death benefits, for the inheritance
of an intestate estate that might otherwise escheat to the
state because the decedent had no known relatives, or for
the proceeds of a legal judgment. The first and last in-
centives for a collusive paternity suit were present here
and the suit was not contested, although, as we said, the
probability seems slight that the allegation of paternity
was spurious. We do not know, of course. We have pointed
out that the grandmother had no stake in the wrongful-
death suit and therefore no reason to resist the claim of
paternity; nor did anyone else. But we do not rest our
decision on any doubts that Glenn senior is the claimant's
father.

   Whether Indiana's five-month statute of limitations was
motivated by a concern with preventing collusive pater-
nity suits, or whether, as suggested in S.V. v. Estate of
Bellamy, 579 N.E.2d 144, 148 (Ind. App. 1991), the only
concern was with the prompt winding up of estates (for
remember that the five-month limitation is applicable only
when the purpose of the paternity suit is to establish a
right of inheritance), the policy behind the deadline would
be impaired were the deadline deemed waived simply by
not being pleaded. This makes it unlikely that the Indiana
legislature intended the deadline to be an ordinary statute
of limitations, which like other affirmative defenses is
waived if the defendant fails to plead it. Its location in
the statute is another clue that it is an element of the
plaintiff's claim rather than an affirmative defense. Bocek
v. Inter-Insurance Exchange, 369 N.E.2d 1093, 1097 (Ind.
App. 1977); General Motors Corp. v. Arnett, 418 N.E.2d
546, 548 (Ind. App. 1981). The distinction between the two
types of limitation is a familiar one in the law, Boggs v.
Adams, 45 F.3d 1056, 1060 and n. 8 (7th Cir. 1995), though
it has been criticized as archaic. Tregenza v. Great Ameri-
can Communications Co., 12 F.3d 717, 719 (7th Cir. 1993).

   It is true that Indiana courts have sometimes construed
deadlines for bringing paternity suits as mere statutes of
limitations. In re Paternity of T.C.S., 576 N.E.2d 633 (Ind.
App. 1991); D.E.F. v. E.M., 363 N.E.2d 1030, 1032 (Ind.
App. 1977). But these were not cases in which the objec-
tive of the suit was to establish entitlement to inherit.
Such a suit is governed by the five-month limitation,
which if waivable would expose the settlement of dece-
dents' estates to debilitating uncertainty. A new heir
might appear, claiming a share of the estate, after the
assets of the estate had been distributed to the known
heirs, and the defendant in the paternity suit might fail,
deliberately or inadvertently, to plead the statute of
limitations. That is not an issue here, but we are considering
whether the deadline would be waivable in suits brought
under the Indiana statute, that is, suits to establish pater-
nity for the purpose of inheritance. Bocek holds that time
limits on the bringing of suits based on statutory rights
are elements of the claim, and neither T.C.S. nor D.E.F.
alludes to this principle; maybe it was not argued in those
cases. Bocek does not stand alone. Two other Indiana
cases hold that the identical five-month deadline for bring-
ing suit against a decedent's estate is an element of the
claim and not merely a statute of limitations. McEwen
v. McEwen, 529 N.E.2d 355, 358-59 (Ind. App. 1988); Ris-
ing Sun State Bank v. Fessler, 400 N.E.2d 1164, 1166
(Ind. App. 1980). The statutory language at issue in those
cases was more emphatic than the statutory language at
issue here--it was that suits not brought within five months
"shall be forever barred." Ind. Code sec. 29-1-14-1(a). But
given the identity of the deadlines and the fact that both
statutes are concerned with inheritance (and so presum-
ably reflect the same desire for a swift resolution of
decedents' estates), we would be surprised to find the
deadline treated as an element of the claim in one and
as a mere statute of limitations in the other. An argu-
ment could be made that the deadline should be tolled
until the child was born, but Haas does not make the
argument, perhaps because it was considered and rejected
in S.V. v. Estate of Bellamy, supra, 579 N.E.2d at 145.

   We add for completeness that even if the five-month
deadline is waivable, the Social Security Administration
might not be bound by a determination of paternity made
in an uncontested proceeding. George v. Sullivan, 909 F.2d
857 (6th Cir. 1990); Gray v. Richardson, 474 F.2d 1370,
1373 (6th Cir. 1973). But the Social Security Administra-
tion did not base its denial of benefits on the lack of con-
test, so neither may we. We are convinced that the five-
month deadline is nonwaivable.
   This short, unwaivable deadline is a crude device for
discouraging fraudulent or collusive paternity claims de-
signed to establish a right of inheritance; but it is not
completely arbitrary. When the unmarried father of a
child dies, and there has been no determination of pater-
nity, almost the mother's first concern will be the estab-
lishment of paternity and she can be expected therefore
to move immediately. If she does not, this may be an in-
dication that she does not believe, or at least lacks con-
fidence, that the "father" really is her child's father.
Granted, it is a weak indication. It might not occur even
to a person relatively knowledgeable about law that a
paternity suit could be, let alone that it must be, brought
before the birth of the child whose paternity was to be
determined. Given this point and the high probability that
the wage earner in this case really is the child's father,
the application of the statute produces a harsh result and
thus sets the stage for the appellant's challenge to the
statute's constitutionality, or more precisely to the con-
stitutionality of the statute's incorporation into the Social
Security Act.

   The two issues are not identical, and the first is a non-
starter. A child seeking to inherit property from his natural
father under Indiana intestacy law might challenge the
five-month deadline, arguing that it makes the statute dis-
criminate impermissibly against children born out of wed-
lock, in violation of the equal protection clause. But it is
pretty certain that the argument, and the suit based upon
it, would fail. The interest in protecting decedents' estates
against phony claims and in winding up these estates
promptly and definitively has been held to justify even
tighter limitations. Lalli v. Lalli, 439 U.S. 259 (1978), held
constitutional a state statute that required a court order
of filiation before the putative father's death. S.V. v.
Estate of Bellamy, supra, 579 N.E.2d at 148-49, upheld
Indiana's five-month limitation against the challenge just
sketched, in reliance on Lalli. See also Trammell on behalf
of Trammell v. Bowen, 819 F.2d 167, 170 (7th Cir. 1987).

   Applied to this case, the statute upheld in Lalli would
have required the impossible: a court order of filiation
within one month of conception. We cannot be certain that
Lalli, which involved an adult child seeking to inherit,
would have come out the same way had the facts been
as in the present case. Several courts have held since
Lalli that if state law makes it impossible in the cir-
cumstances to establish paternity, the law is unconstitu-
tional if applied in those circumstances. Handley by and
through Herron v. Schweiker, 697 F.2d 999, 1004 (11th
Cir. 1983); Cox v. Schweiker, 684 F.2d 310, 323 (5th Cir.
1982). The Fourth Circuit disagrees. Jones v. Schweiker,
668 F.2d 755 (4th Cir. 1981), vacated because of a change
in state law as Jones v. Heckler, 460 U.S. 1077 (1983);
Parsons for Bryant v. Health & Human Services, 762
F.2d 1188, 1190 (4th Cir. 1985). So does an Eleventh Cir-
cuit decision subsequent to Handley, though it involves
a different section of the Social Security Act: Orsini on
behalf of Orsini v. Sullivan, 903 F.2d 1393 (11th Cir.
1990). In any event, there is no impossibility here; Christi
Haas knew that she was pregnant, and she had five
months to sue. She must also have known that since she
neither had been married to the father nor lived with him,
his paternity might be questioned. All she had to do was
file the paternity suit within five months of Scott Glenn's
death; the statute does not require that the determination of
paternity be made within that (or any other) period.
The filing would not be burdensome, and it would pro-
vide notice to the estate.

   Young Glenn is not seeking a share of his putative
father's estate. He is seeking child insurance benefits
that are no part of the estate. So the policy of protect-
ing estates is not in play. Another policy is, however.
The purpose of federal child insurance benefits, a purpose
shared by some but of course not all bequests, is to re-
place the support that the child would have received from
his father had the father not died. Trammell v. Bowen,
supra, 819 F.2d at 169. Consistent with this purpose, the
sections of the Social Security Act that define the entitle-
ments of children born out of wedlock, 42 U.S.C. secs. 416(h)(2)
and (3), have been crafted not to determine paternity
alone but paternity plus likelihood of support. Every father
whose parental rights have not been terminated (as by
the lawful adoption of the child by another person) has
a legal duty to support his child, Ind. Code sec. 35-46-1-5;
1 Homer H. Clark, Jr., The Law of Domestic Relations
in the United States sec. 5.4, p. 317 (2d ed. 1987), but the
reality is of course different and many fathers, especial-
ly of children born out of wedlock, do not support their
children. The fact that Scott M. Glenn, II, is probably the
child of the wage earner is not by itself proof or even
strong evidence that if Glenn senior had lived he would
have supported the child. The Social Security Act estab-
lishes criteria designed to identify the likely supporters.
The criteria constitute a coarse filter, but not so coarse
a one that we are moved to declare the relevant provi-
sions unconstitutional, especially since the appellant's
lawyer has no suggestions for an alternative method of
screening out the applications of children whose fathers
would not have been likely, had they lived, to support
them. It is true that Scott's "dependency" was deter-
mined in the wrongful-death action, but that determina-
tion has no standing under the Social Security Act, and
for all we know may have been based simply on the judg-
ment in the paternity suit.

   Although the equal protection clause of the Constitu-
tion has been interpreted to forbid unreasonable discrim-
ination against children born out of wedlock, e.g., Weber
v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972); see
Bennemon on behalf of Williams v. Sullivan, 914 F.2d
987, 988-89 (7th Cir. 1990), some difference in treatment
is inevitable. The institution of marriage is not purely ar-
bitrary or conventional. One of its advantages--historically
one of its most important functions--is to establish a clear
framework for the support of children. When the frame-
work is missing, the child is at a disadvantage in estab-
lishing a range of entitlements, and one of them is to child
insurance benefits under the Social Security Act. With
Glenn senior dead, the question what if any support he
would have provided to the child of a woman to whom
he was not married and with whom he had not been liv-
ing became inherently uncertain. The fact that he died
eight months before the child was born aggravated the
uncertainty.

   It is true that one of the grounds in the Social Secur-
ity Act for the award of child insurance benefits is a
determination by the Social Security Administration that
the wage earner was contributing to the support of the
applicant when he died. Financial contributions made by
the wage earner to the mother during pregnancy have
been construed as support for the as yet unborn child.
E.g., Adams v. Weinberger, 521 F.2d 656, 660 (2d Cir.
1975); Parsons for Bryant v. Health & Human Services,
supra, 762 F.2d at 1191; Doran v. Schweiker, 681 F.2d
605, 609 (9th Cir. 1982). How regular and substantial the
contributions must be to satisfy the statute remains un-
settled, Bennemon on behalf of Williams v. Sullivan,
supra, 914 F.2d at 990, but the issue is academic here
because Glenn senior contributed nothing to the support
of the child's mother. We have been given no reason to
suppose that he intended to marry or live with her, to
contribute to her support or that of the child, or even
to acknowledge paternity.

   Congress has decided that, all other routes to demon-
strating the likelihood of support being closed, if the
child's state was willing to allow the child to take by in-
testacy from the putative father this is enough evidence
that the putative father would have supported the child
to entitle the child to benefits in lieu of that support taken
away by death. Congress may not have been required to
go that far. Mathews v. Lucas, 427 U.S. 495, 514-15 (1976),
holds that Congress was not required to go further. Mathews
upheld section 416(h)(2), the section on which the Social
Security Administration relies in this case, against a chal-
lenge that it is too crude a predictor that the deceased
father, had he lived, would have supported the child. See
also Imani on behalf of Hayes v. Heckler, 797 F.2d 508,
513 (7th Cir. 1986); Trammell v. Bowen, supra. We are
mindful that Daniels on behalf of Daniels v. Sullivan, 979
F.2d 1516, 1521 (11th Cir. 1992), holds that the equal pro-
tection clause forbids Congress to use a short state-law
deadline for establishing paternity for inheritance to block
a claim for child insurance benefits, since support and in-
heritance involve a different balance of interests. The
court in Daniels did not explain how its result could be
reconciled with Mathews v. Lucas, and its conclusion is
in conflict not only with the Fourth Circuit's decisions in
Jones and Parsons but also with the Eleventh Circuit's
own decision in Orsini, as well as with the spirit of our
decision in Imani.

   Even if section 416(h)(2) is invulnerable to constitutional
challenge, we are sure, as the Social Security Administration
conceded in Lawrence on behalf of Lawrence v. Chater,
116 S. Ct. 604 (1996) (per curiam), that Congress did not
intend the incorporation of unconstitutional state intestacy
statutes. If the five-month deadline in the Indiana statute
could not constitutionally be applied in a suit by a child
to inherit property, then it could not be used as the basis
for denying claims under the Social Security Act. Cox v.
Schweiker, supra, 684 F.2d at 317-18. But this route, it
seems, is blocked by Lalli. The Indiana statute is con-
stitutional. 

   With Lalli having upheld a limitations period for deter-
mining heirship that is even shorter than Indiana's, and
Mathews v. Lucas having upheld the incorporation of such
limitations into the federal statute, the application for bene-
fits in the present cases is doomed unless the Supreme
Court is minded to reexamine either decision or unless
the present case can somehow be distinguished from Lalli.
Mills v. Harbluetzel, 456 U.S. 91, 100 (1982), decided after
Lalli, held that 12 months after the child's birth was an
unconstitutionally short deadline for a child born out of
wedlock to bring a suit for support against his putative
father, and here suit was brought only one month after
the child's birth. See also Pickett v. Brown, 462 U.S. 1,
18 (1983); Clark v. Jeter, 486 U.S. 456, 464 (1988). Yet
none of the opinions in these cases questions the continued
validity of Lalli. See, e.g., Mills v. Harbluetzel, supra,
456 U.S. at 99. The cases did not involve claims against
an estate, so the policy of winding up estates swiftly was
not in the pan on the state's side of the balance. Of course
the present case does not involve a claim against an estate
either. But Congress's policy, expressly upheld in Mathews
v. Lucas, is, as we have seen, to tie entitlement to child
insurance benefits to entitlement to intestacy benefits, or
in other words to make the child's claim against the Social
Security Administration depend upon the outcome of a
hypothetical claim against the estate. If the latter would
fail, the former fails. The element of arbitrariness has
been deemed tolerable.
   Lalli is different from this case because, as we pointed
out earlier, the claimant there was an adult and had had
many years to establish paternity. Similarly, the claimant
in Trammel had a number of alternative routes to establish-
ing entitlement to the benefits he sought. Our claimant was
in a bind, having not yet been born when his putative father
died. Nevertheless, as there is no question of its having been
impossible for the mother to have instituted a paternity
suit within five months of the wage earner's death, we
cannot find any adequately clear, minimally predictable
basis for carving out an exception to Lalli. We could hold,
as urged by the plaintiff, that a five-month deadline for
the bringing of paternity suits on behalf of posthumous-
ly born children is unconstitutionally short, even when the
object of the suit is to establish a right of inheritance.
But then what would be the minimum deadline? Five
months after birth? This would give the mother 14 months
to sue if the decedent had died immediately after con-
ception, significantly delaying the winding up of estates.
The harm from such delay would have to be balanced
against the harm to the children. Lalli implies that the
balance is for the state to strike within limits not here
exceeded.

   The combined effect of Lalli and Mathews is to place
claimants in the position of young Scott in a box. Lalli
makes clear that the Indiana statute is constitutional as
applied to inheritance, Mathews that the Social Security
Act is constitutional in incorporating the (constitutional)
Indiana statute. Only the Supreme Court possesses the
key that will open the box. We cannot be certain that
it will turn the key. Courts are inclined to leave arbitrary
line-drawing to legislatures. The creation of the exception
sought by the plaintiff would entail a degree of statutory
fine-tuning that may or may not exceed the Supreme
Court's current conception of what the judiciary may
properly and feasibly accomplish in the name of the Con-
stitution. That is for the Court, not us, to say.

AFFIRMED.




   DIANE P. WOOD, Circuit Judge, dissenting. On the
strength of the Supreme Court's decision in Lalli v. Lalli,
439 U.S. 259 (1978), in which the Court upheld a New
York statute that precluded an adult illegitimate from
proving paternity in a probate proceeding, the majority
decides today that a child who was a one-month fetus at
the time his father died is barred from showing that he
was entitled to inherit from his father because the State
of Indiana requires such claims to be brought within five
months of the father's death. Ind. Code sec. 29-1-2-7(b)(1)(B).
Because I believe that this result extends Lalli far beyond
its legitimate reach, and that this ruling conflicts both
with the Supreme Court's decisions in Mills v. Habluetzel,
456 U.S. 91 (1982), Pickett v. Brown, 462 U.S. 1 (1983),
and Clark v. Jeter, 486 U.S. 456 (1988), and with the deci-
sions of the Court of Appeals for the Eleventh Circuit
in Daniels v. Sullivan, 979 F.2d 1516 (11th Cir. 1992), and
Handley v. Schweiker, 697 F.2d 999 (11th Cir. 1983), I
respectfully dissent.


I.

   This case, like the one recently before the Supreme
Court in Lawrence v. Chater, 116 S.Ct. 604 (1996), raises
the question whether the Commissioner of Social Secur-
ity must determine the constitutionality of a state statute
before relying upon that law in a benefits determination
relying upon 42 U.S.C. sec. 416(h)(2)(A), and further, if that
state statute is unconstitutional, whether benefits are due.
As the majority notes, Scott Glenn II's eligibility for bene-
fits under 42 U.S.C. sec. 402(d) turns on his ability to show
that he is a "dependent child of a wage earner." Of the
several ways offered in sec. 416(h) to prove this relationship,
the only one available to young Scottie, is proof that he
was eligible to inherit under Indiana's intestate succes-
sion law, Ind. Code sec. 29-1-2-7(b). This is so largely because
his father, Scott M. Glenn ("Scott Sr."), was tragically
killed in an automobile accident only one month after
Scottie's conception; thus, the parents did not have time
to regularize their relationship by marriage, to obtain a
court decree of paternity, to execute a written acknowl-
edgment of paternity, or to take advantage of any of the
other avenues provided in the federal statute.

   The Indiana intestacy statute allows a child born out
of wedlock to inherit only if

(1)   The paternity of the child has been established
by law in a cause of action that is filed:

(A)   During the father's lifetime; or

(B)   Within five (5) months after the father's
death; or

(2)   The putative father marries the mother of the
child and acknowledges the child as his own.

Ind. Code sec. 29-1-2-7(b). In this case, the fact that Scott
Sr. was Scottie's father was established by the decree
of the Allen Superior Court in Indiana, Cause No.
02D07-9212-JP-753, February 9, 1993. In addition, the Allen
Superior Court issued an order establishing that Scott Glenn
II is the "dependent child" of Scott M. Glenn for pur-
poses of asserting a claim under Indiana's Wrongful Death
Statute, Ind. Code sec. 34-1-1-2, Cause No. 02D01-9402-CT-17,
September 9, 1994. Nevertheless, in spite of the fact that
every time the Indiana court responsible for the case has
confirmed the fact that Scott Sr. was Scottie's father, the
Commissioner here has interpreted the Indiana intestacy
statute as an absolute bar to his ability to inherit from
his father, and therefore to his ability to qualify as a
dependent child of the wage earner for purposes of the
Social Security Act.

   Scottie's mother, Christie Haas, filed the paternity action
on Scottie's behalf approximately one month after his
birth. However, that was indisputably neither within the
father's lifetime nor within five months of his death. The
Social Security Administration therefore concluded that
Scottie could not qualify under Indiana's intestate succes-
sion law, and thus that he did not qualify for benefits.
On Scottie's behalf, Haas argues here that the Commissioner's
negative determination was wrong on two grounds.
First, she contends that the five month limitation in the
Indiana statute is merely a statute of limitations, and
hence is waivable (and was waived here by the estate).
On that theory, Scottie is entitled to inherit under the
Indiana intestacy scheme, and he thus is qualified for the
Social Security benefits in question. Second, she argues
that if the Commissioner correctly read the Indiana law,
that law unconstitutionally discriminates against a distinct
class of illegitimate children. She further asserts that in
the absence of this unconstitutional discrimination, Scottie
has proven both his ability to inherit under the intestacy
statute and his dependence for purposes of the Social
Security Act.

   Haas' first argument is appealing for its simplicity, but
I agree here with the majority that Indiana law indicates
the five-month period is an element of the claim, not an
ordinary, waivable, statute of limitations. The administra-
tion of estates is an enterprise that typically involves
multiple parties, some easily ascertainable and others less
so. Thus, unlike the ordinary bilateral lawsuit with specific
parties (or their legal representatives, as in class actions)
on both sides, it would be harder to know in a probate
case from whom waivers would need to be secured for
limitation periods like the one in Indiana's statute. The
state therefore reasonably can take the position that
potential heirs take the necessary steps to establish their
relationship to the deceased within a reasonable period
of time, so that they are then in a position to join the
probate proceeding. Whether, in the ordinary case, it is
sufficiently generous to allow illegitimates to obtain a
judicial decree of paternity during their father's lifetime
or within five months of his death is not the question be-
fore us. Instead, the question is whether Indiana expects
five-month fetuses or their representatives to bring pater-
nity actions, whether Indiana would construe the five-
month limitation period to begin running from the date
of a live birth, or if Indiana would take some other ap-
proach for posthumously born illegitimate children.

   In my opinion, it is not at all clear that Indiana would
not toll its five-month substantive limitation period dur-
ing the time a child is in utero, and to have it run
thereafter. This is the approach that courts take in similar
situations, such as a tort action for injuries suffered prior
to birth or a wrongful death action where the parent dies
before birth. See generally Prosser & Keeton, The Law
of Torts sec. 55, at 368 (5th ed. 1984). The fetus does not
have a tort cause of action of any kind unless and until
that fetus becomes a child, at the moment of live birth.
See Cowe v. Forum Group, Inc., 575 N.E.2d 630 (Ind.
1991). If the Supreme Court of Indiana disagreed with
the appellate ruling in S.V. v. Estate of Bellamy, 579
N.E.2d 144 (Ind. App. 1991), and construed its law to re-
quire tolling, then Scottie wins easily. His mother filed
suit within a month of his birth, well within any five-
month limitation period that might have applied. For what
it is worth, every indication we have from the Indiana
courts involved in Scottie's case supports this approach.

   Nevertheless, on the assumption that the majority ac-
curately predicts Indiana's interpretation of its intestate
succession statute, it is necessary to reach the constitu-
tional issue. Before turning to the particulars of this case,
it is helpful to review the considerable jurisprudence the
Supreme Court has developed that relates to classifica-
tions based upon legitimacy. In brief, this review demon-
strates that the Court applies an intermediate level of
scrutiny to this kind of classification, that it will strike
down state laws that erect insurmountable barriers to the
child's assertion of rights, and that the Court has regular-
ly invalidated state laws that impose unreasonably short
periods of time for asserting the rights in question.

   In Mathews v. Lucas, 427 U.S. 495 (1976), the Court
upheld the provisions of the Social Security Act that gen-
erally condition eligibility for surviving child's benefits for
illegitimate children upon a showing that the deceased
wage earner was the claimant's parent and, at the time
of death, was living with the child or contributing to his
or her support. The application of the provisions of the
Social Security Act permitting proof of eligibility by refer-
ence to state intestacy laws was not before the Court in
Lucas. See id. at 501. Instead, the Court rejected the
blanket claim that a denial of benefits to illegitimate children
whose paternity was "clear" violated the Fifth Amend-
ment of the Constitution when legitimate children would
certainly have received the benefits. The state courts in
Lucas had never issued a declaration of paternity, and
the challenge was brought by children who were approx-
imately eight and fifteen years old at the time of their
father's death. The Court repeatedly noted, in reaching
this result, that it was not applying "strict scrutiny" to
the classification at issue, but it did not indicate with pre-
cision what lesser level of scrutiny was actually being used.

   The next key case, on which the majority relies extensively,
was Lalli v. Lalli, 439 U.S. 259 (1978). In Lalli, the
Court considered the constitutionality of a New York statute
that required illegitimate children seeking to inherit from
their father by intestate succession to demonstrate that
a court of competent jurisdiction had made an order of
filiation during the lifetime of the father, in a proceeding
instituted during the pregnancy of the mother or within
two years from the birth of the child. Five members of
the Court voted to uphold the law. Justice Powell wrote
a plurality opinion for himself, Chief Justice Burger, and
Justice Stewart; Justice Blackmun wrote a separate state-
ment concurring in the judgment; and Justice Rehnquist
wrote his own brief statement concurring in the judgment.
The other four members of the Court dissented.

   The facts of Lalli were significantly different from those
presented to us here, and even the majority concedes that
it cannot be certain that Lalli "would have come out the
same way had the facts been as in the present case." Ante
at 7. The appellant Lalli, who was an adult at the time
his putative father died, conceded that he had not ob-
tained the required order of filiation. He claimed, how-
ever, that his inability to prove his relationship with the
deceased through other means violated the Equal Protec-
tion Clause. The judgment of the Court rejected this argu-
ment and upheld the New York statute.

   In reaching this conclusion, Justice Powell's plurality
opinion analyzed the question whether the procedural re-
quirements of the New York law bore "an evident and
substantial relation to the particular state interests this
statute is designed to serve." Id. at 268. Emphasizing the
State's interest in the just and orderly disposition of prop-
erty at death, the "peculiar problems of proof" for pater-
nal inheritance, and the need to avoid spurious claims,
the plurality was persuaded that the New York statute
drew constitutionally acceptable lines. It distinguished
Trimble v. Gordon, 430 U.S. 762 (1977), which had struck
down an Illinois inheritance law that discriminated against
illegitimates, as a case where the state law "effected a
total statutory disinheritance of children born out of wed-
lock who were not legitimated by the subsequent marriage
of their parents." 439 U.S. at 273.

   In every case dealing with illegitimacy since Lalli, the
Supreme Court has struck down state statutes that impose
unrealistic burdens on children attempting to establish
paternity for support purposes. In Mills v. Habluetzel, 456
U.S. 91 (1982), the Court faced an Equal Protection chal-
lenge to a Texas statute that required an illegitimate child
to bring a paternity action before his or her first birth-
day. Like the Indiana statute here, the Texas limitation
period was considered as part of the substantive right,
not simply as a procedural limitation on that right. Justice
Rehnquist, writing for the Court, began by observing that
a State that grants an opportunity for legitimate children
to obtain support must also grant that opportunity to il-
legitimate children, and that opportunity must be more
than illusory. He continued:

The period for asserting the right to support must
be sufficiently long to permit those who normally
have an interest in such children to bring an action
on their behalf despite the difficult personal, family,
and financial circumstances that often surround the
birth of a child outside of wedlock.

Id. at 97. Although the states may impose greater restric-
tions on illegitimate children than on legitimate children,
because of the risk of stale or fraudulent claims, those
restrictions themselves must pass equal protection scrutiny.

   Mills established two related requirements for the
necessary equal protection analysis. First, the period for
obtaining support granted to illegitimate children must be
sufficiently long in duration to present a "reasonable op-
portunity for those with an interest in such children to
assert claims on their behalf." Id. at 99. Second, any time
limitation placed on that opportunity must be substantially
related to the State's interest in avoiding the litigation
of stale or fraudulent claims. Id. at 99-100. The Court
noted in passing that Lalli and Trimble involved the right
of illegitimate children to inherit, while Lucas involved
the right of illegitimate children to receive social secur-
ity benefits. But, it said, "[t]here is no reason to think
that the factual differences between those cases and the
present case call for a variation of the general principle
which those cases have laid down." Id. at 99 n.5. Applying those
two requirements to the case before it, the Court
concluded that the Texas requirement was an unrealistical-
ly short period of time, which "so restrict[ed] those rights
as effectively to extinguish them," id. at 101, and it struck
down the Texas statute.

   Pickett v. Brown, 462 U.S. 1 (1983), came to the same con-
clusion about a Tennessee statute that required a child
to file a petition for a determination of paternity and sup-
port within two years of his or her birth. The Court saw
no meaningful distinction between the one-year rule in-
validated in Mills and the two-year rule before it. The
hardships on the child's representatives were likely to be
the same, and the time limitation was not substantially
related to the State's interest in avoiding stale or fraud-
ulent claims. Repeating language from Mills, the Court
said "[w]e can conceive of no evidence essential to pater-
nity suits that will be lost in only [two years], nor is it
evident that the passage of [24] months will appreciably
increase the likelihood of fraudulent claims." Id. at 13-14
(internal quotations omitted). The Court also noted that
scientific advances in blood testing have alleviated the
problems of proof in paternity actions, which further
undermined the relationship between the period of limita-
tions and the State's interests.

   Clark v. Jeter, 486 U.S. 456 (1988), is yet another case to
the same effect. In Clark, the Court invalidated a Penn-
sylvania statute that required an illegitimate child to bring
a suit to establish paternity within six years of her birth.
In so doing, the Court stated openly what had been im-
plicit in its prior decisions: these kinds of statutes must
pass intermediate scrutiny, which means that the statu-
tory classification must be substantially related to an im-
portant governmental objective. Id. at 461.

   The Eleventh Circuit has had two occasions to decide
cases almost identical to the one before us now. In Hand-
ley v. Schweiker, 697 F.2d 999 (11th Cir. 1983), the Secre-
tary of Health and Human Services denied an application
for child's insurance benefits under 42 U.S.C. sec. 402(d)(1)
on the ground that the child had not shown she was en-
titled to inherit under the Alabama intestacy statute. That
statute required a judicial determination of paternity with-
in the father's lifetime. The father in question, however,
had been fatally injured in an automobile accident and had
fallen into a coma some four months before her birth. He
remained in the coma until four months after her birth,
when he died.

   Guided by Mills, the court of appeals found that the
Alabama scheme presented an insurmountable barrier for
a subclass of illegitimate children. It noted that the prob-
lems for the child and her family recognized in Mills were,
if anything, even worse when accompanied by the emotion-
al and economic turmoil caused by the father's death. It
distinguished Lalli on grounds equally pertinent here:
Lalli was a private dispute over estate distribution
brought by an adult son who had had plenty of time to
obtain an order of filiation, and the statutory scheme was
"a minor procedural nuisance" rather than a "total statu-
tory disinheritance" (citing language in Lalli that distin-
guished Lalli from Trimble)." 697 F.2d at 1004. In Hand-
ley, as a practical matter there was no time when both
parent and child were simultaneously alive; "[t]he erst-
while procedural hurdle became an unconstitutional com-
plete and impenetrable barrier." Id. See also Daniels v.
Sullivan, 979 F.2d 1516 (11th Cir. 1992) (invalidating for
Social Security Act purposes a Georgia statute that re-
quired an illegitimate child to establish paternity during
the lifetime of the father, when child was two years, five
months old at the time of father's death).

   Although the Fourth Circuit arguably came to a dif-
ferent result in Parsons v. Health and Human Services,
762 F.2d 1188 (4th Cir. 1985), it is more accurate to say
that the Fourth Circuit had a different approach to this
kind of case. Following its earlier conclusion in Jones v.
Schweiker, 668 F.2d 755 (4th Cir. 1981), vacated sub nom.
Jones v. Heckler, 460 U.S. 1077 (1983), the Fourth Cir-
cuit concluded in Parsons that even if a state intestacy
statute is unconstitutional, the illegitimate child is not en-
titled to Social Security benefits under sec. 416(h)(2)(A). In
fact, this was once the position of the Social Security Ad-
ministration, but that has changed. In his response to the
petition for certiorari in Lawrence v. Chater, supra, the
Solicitor General announced that the Social Security Ad-
ministration now interprets the Social Security Act as re-
quiring "a determination, at least in some circumstances,
of whether the state intestacy statute is constitutional."
116 S.Ct. at 605. The Court granted the Lawrence peti-
tion, vacated the decision of the Fourth Circuit denying
benefits, and remanded for reconsideration in light of the
Administration's change of position.

   Even if the Social Security Administration had not
changed its view, I would have taken the position that
the Commissioner is not entitled to make an unconstitu-
tional state statute part of the Social Security system,
and thus to adopt an unconstitutional distinction between
legitimate and illegitimate children. Constitutional limita-
tions would be meaningless if the Commissioner could ef-
fectively incorporate into federal law state statutes that
discriminated on the basis of race, that imposed prior re-
straints on speech, or that denied free exercise of religion.
I can only assume that the agency also came to this real-
ization, when it took a closer look at the implications of
its former view.

   Thus, the first step in our analysis here is to decide
whether the Indiana statute, as applied to the class of
illegitimate children to which Scottie belongs (posthumous-
ly born more than five months after the father's death),
violates the Equal Protection clause. If so, it would also
violate the Constitution for the Commissioner to use that
statute to deny Scottie's benefits. Since the Indiana courts
have already issued an order of paternity, nothing would
remain here but to reverse the denial of benefits and re-
mand to the agency for a determination of how much is
due.

   Mills, Pickett, and Clark, not Lalli, provide the analy-
tical approach for our constitutional analysis. The first
question is whether the period for obtaining the patern-
ity decree for purposes of the intestacy statute is suffi-
ciently long in duration to present a reasonable opportun-
ity to assert the claim; the second question is whether
the time limitations in question are substantially related
to an important governmental objective.

   For the subclass of illegitimate children who are in
utero at the time of their father's death, and who are not
yet born within five months of his death, it is beyond im-
agination how anyone can claim that the period of time
is sufficiently long in duration to present a reasonable op-
portunity to assert the claim. They are even worse off
than the child in Handley: there is not a moment when
these children are alive either during their father's life-
time or in the five-month extension provided by the statute.
If one year after birth was not enough for the paternity
action in Mills, if two years after birth were not enough
for the paternity action in Pickett, if six years after birth
were not enough for the paternity action in Clark, it is
hard to see how this time period could possibly qualify.
This statute gives children in Scottie's position no time
at all after their birth to bring the paternity action that
is the predicate for intestate succession. For this class,
the statutory scheme is not one that is fair ex ante, but
which results in the occasional unjust outcome from an
ex post perspective. By its very nature, as the Indiana
appellate court observed in Bellamy, it always excludes
the class of posthumously born illegitimate children at
issue here.

   The Indiana statute fares no better when we turn to
the second part of the test: substantial relationship to im-
portant state interests. Intestacy proceedings share many
of the concerns that the Supreme Court identified for sup-
port actions. The state will want to avoid stale or fraud-
ulent claims, and it will want to assure that the probate
proceeding is concluded within a reasonable period of time.
I disagree with the majority's conclusion that the five-
month rule bears the necessary relationship to those in-
terests here.

   First, with respect to stale or fraudulent claims, I con-
sider Mills, Pickett, and Clark to be practically disposi-
tive. Indeed, requiring pregnant women in Christi Haas'
position to rush off to the courthouse and file a patern-
ity action the moment they learn of the death of the father
of their child could wind up wasting time for the probate
court. Suppose the court acted with dispatch, and ren-
dered an order of paternity by the time the pregnancy
was four months along. Suppose further that the woman
miscarried at month eight. Would the fetus be entitled
to an estate? Would the estate inherit from the father?
As the heir of the child, would the mother thus be en-
titled to take from the father? The answers to these ques-
tions are all no, under the laws of every state of the
United States. The court would be required to dismiss
all potential claims on behalf of the child, having wasted
its time on contingencies that were never fulfilled.

   Accuracy of paternity determinations is also impeded,
not helped, by requiring filings during pregnancy. Unless
the State of Indiana is willing to risk the health of fetuses
by subjecting them to dangerous in utero invasive pro-
cedures, blood tests are out of the question until the child
is born. Thus, the only way to prove paternity at such
an early stage would be through less reliable anecdotal
evidence. True, the State could require the mothers to
file "place holder" lawsuits that would become activated
only after the birth of a child. But the difference between
this and Haas' actual course of conduct is vanishingly small.
She filed within a month of giving birth, at a time when
every mother is still feeling physically worn out from the
birth process and from the midnight feedings. I cannot
find that the State had an "important interest" in hav-
ing some paper sit in the probate court for six months
before the paternity action could really proceed.

   Next, I consider the State's interest in speedy disposi-
tion of estates, on which the majority relies heavily. For
the subclass to which Scottie belongs, that doesn't work
either. Unless the need to wait for a child en ventre sa
mere to be born has the effect of holding up any signifi-
cant number of probate proceedings, this too fails inter-
mediate scrutiny. Although it is somewhat difficult to find
reliable statistics from probate courts, the typical time for
resolving a simple estate appears to be anywhere from
a year and a half to two years. Turner, Revocable Trusts,
sec. 1.07 (3d ed. 1995). Obviously, an unborn child will not
enter the picture any later than nine months after the
father's death. Assume for the sake of argument that (1)
the five month period began to run as soon as there was
a live birth, (2) the child was conceived on the same day
as the father's death, and (3) the estate was opened at
the very moment of the father's death. Even on those
extreme facts, the need to wait for the birth of the child
would still take us only to month fourteen, well below
this typical time span. Plainly, the normal case would in-
volve significantly shorter periods of "delay," during
which the probate court would probably be conducting its
other business in the case.


   Finally, I believe that the majority erroneously second-
guesses Indiana's decision to declare that Scott Sr. was
Scottie's father. It argues that this was not a true adver-
sarial proceeding, like some (though surely not all) pater-
nity cases, because it was unconstested and the family
had nothing to lose. Without any basis in the record, it
implies that the Indiana decree might have been tainted
by fraud. It states, as if it were an established fact, that
the grandmother had "no stake" in the paternity suit. I
disagree. The death of a father like Scott Sr. does not
mean that his family loses all incentive to oppose a fraud-
ulent paternity action. A positive declaration of paternity
will have far-reaching implications for the family beyond
these Social Security benefits. For example, the declara-
tion of paternity makes it clear under Indiana law that
Scottie is the grandchild of Scott Sr.'s mother. This status
may be important under her will, for support obligations,
under insurance policies designating "children" as bene-
ficiaries, for employee survivor benefits, or for a host of
ancillary legal obligations wholly apart from the intestacy
laws. What if something happens to Christie Haas, so that
she becomes unable to care for Scottie? In the vast major-
ity of states, the family courts frequently look to the
child's grandparents as the best substitute guardians.
Second, unless we think that potential defendants have
infinitely deep pockets, the addition of more plaintiffs to
the wrongful death action risks dividing the pie further.
Third, the majority seems to assume that the Indiana
court was not conscientious in making its determination
on paternity, in spite of Christi Haas' prompt action and
the consequent ease with which the facts could be ascertained.
Finally, support of a child is a financial and emotion-
al burden for the extended family just as it would be for
the father. This family, like any other, would have every
reason to send a woman packing if she appeared on the
doorstep and falsely insinuated that she had the child of
a recently deceased son.

II.

   It is unlikely in the extreme that the Indiana legislators
who wrote Ind. Code sec. 29-1-2-7(b) were thinking about its
effect on one-month gestation fetuses when they inserted
the five-month limitation on claims. But whether or not
they were, the application of that rule to the class of il-
legitimate children who are not born in time to bring the
necessary paternity action for intestate succession violates
the Equal Protection Clause of the Constitution. Because
the Commissioner of Social Security cannot incorporate
an unconstitutional state statute in her test for benefits
under sec. 402(d), and because Scottie has otherwise fully
proven that he would be entitled to inherit for purposes
of sec. 416(h)(2)(A) through his prompt securing of the decree
of paternity, I would reverse and remand this case to the
Commissioner for a determination of the benefits to which
he is entitled.