TN 114 (12-23)

GN 00306.065 Evidentiary Standards Under State Intestacy Laws

A. Policy - Acknowledgment

1. Informal Acknowledgment or Recognition

Some State intestacy laws confer inheritance rights when there has been an informal (e.g., oral) acknowledgment or recognition of paternity. If the digest of State laws in GN 00306.400 - GN 00306.680 does not show this clearly, submit the case to the Office of the General Counsel (OGC) under GN 01010.815 ff. in the absence of a precedent opinion.

2. Written Acknowledgment

Under some State laws, a child may be legitimated, or acknowledged for inheritance purposes, by a statement in writing signed in the presence of a witness. If there is no requirement that the writing be in a certain form, a great variety of written statements may suffice.

If it is not clear that a writing acknowledging paternity was signed by the father in the presence of a witness, submit the claim to OGC under GN 01010.815 ff. unless the child qualifies as a 216(h)(3) child based on the written acknowledgment (GN 00306.100) and retroactivity is not at issue.

B. Policy - Standards of Proof

The standard of proof for establishing paternity under State intestacy laws is a matter of State law. Generally, “clear and convincing” proof or evidence is an intermediate standard, requiring more certainty on the part of the fact finder than a “preponderance of the evidence” standard, but less certainty than the “beyond a reasonable doubt” standard.

Standards of proof under each State's law are described in GN 00306.400 - GN 00306.680. If you have a question as to what standard of proof a specific State law requires, or whether the evidence in a particular case meets the State law standard, submit it to OGC under GN 01010.815 ff. in the absence of a precedent opinion.

C. Procedure - Cases Involving Blood/Genetic Test Results

1. General

Submit cases involving blood or genetic test results to OGC per GN 01010.815 ff. in the absence of a precedent opinion, if there is a question about whether State intestacy law requirements are met; e.g., results were based on testing of relatives of the NH in death cases, or the State law digest entry is silent on the accreditation requirements for testing laboratories. Also, submit to OGC cases involving the issue of whether blood/genetic test results rebut a presumption of legitimacy/paternity under State law, in the absence of a legal precedent opinion.

NOTE: See GN 00201.005B.6. for procedures concerning taking a new application when a child submits blood/genetic test results that may constitute new and material evidence for reopening a prior disallowance within four years.

2. Blood/Genetic Test Results of NH’s Relatives

When evaluating blood/genetic test results of relatives of the NH, do not routinely develop to determine if a male relative of the NH may have fathered the child claimant unless:

  • The facts of the case, e.g., other evidence, statements, raise the issue; or

  • OGC specifically directs such development in a precedent opinion or the intestacy entry itself.

Where OGC directs such development, follow the OGC's guidelines. Where the facts of the case direct such development, obtain statements from the NH's family about the possibility/allegation that a male relative of the NH may have fathered the child claimant and the basis for the responder's belief that this is or is not true. Obtain a statement from the mother, which should focus on access by the NH.

Absent a precedent opinion on evaluating test results from relatives, submit the results of your development that someone other than the NH may have fathered the child, along with the test results of the relatives, to OGC for an opinion, unless the development clearly shows that the NH is not the child's father. If you have a precedent on evaluating test results from relatives, determine whether, based on OGC's advice and any development generated as a result of GN 00306.065C.1. or GN 00306.065C.2., the evidence as a whole supports the paternity claim.

D. Procedure - Statements Concerning Paternity

If you obtain statements from individuals (e.g., the NH's relatives or friends) that are being considered as evidence of paternity for purposes of State intestacy law, make sure that the statements show:

  • The relationship of the individual to the NH; and

  • How the individual knows that the child was the NH's, e.g., the specific words used by the NH in orally acknowledging the child.

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GN 00306.065 - Evidentiary Standards Under State Intestacy Laws - 12/11/2023
Batch run: 12/11/2023