TN 64 (11-23)

GN 00306.670 West Virginia Intestacy Laws

Effective 06/09/99, for deaths occurring or applications filed on or after 01/01/81, a child can establish paternity:

1. 1. 

   when the putative father (insured) is still living:

   1. a. 

      by acknowledgment by the putative father that he is the child's father; or

   2. b. 

      by order of a court of West Virginia or of another competent jurisdiction; or

   3. c. 

      “clear and convincing” evidence (see DEFINITION in this section); or

2. 2. 

   when the putative father (insured) is deceased, by “clear and convincing” evidence (see DEFINITION).

DEFINITION:

“Clear and convincing evidence” is that degree of proof which will produce in the mind of the adjudicator a firm belief or conviction of paternity. No particular amount, type, or combination of evidence is sufficient to meet the standard—the evidence must be evaluated on a case-by-case basis.

As a guideline, the following factors taken together have been found sufficient to meet the clear and convincing evidence standard when the putative father was deceased:

the mother's sworn affidavit or testimony that she had not had sexual relations with men other than the putative father at the time of the child's conception;

the sworn affidavit or testimony of the mother and grandmother that the putative father acknowledged paternity by a letter which was subsequently destroyed by fire;

affidavits from other individuals stating that the putative father said he was the child's father, that the putative father visited the mother in the hospital at the time of the child's birth, that the putative father visited the child three to four times per month, that the putative father gave the child gifts on birthday and Christmas, and that the child was the “spitting image” of the putative father; and

blood test evidence of the putative father's brother showing by overwhelming odds that he was the child's uncle.

NOTE: This list of evidence is intended as an example and is not an exhaustive list. Less evidence or evidence of a different character could meet the standard. For example, undisputed genetic blood or tissue test results which show a statistical probability of paternity of 98% or greater shall constitute clear and convincing evidence of paternity. Test results of less than 98% probability are not conclusive of paternity and shall be considered along with other evidence on determining whether the standard has been met.

Under the following circumstances, refer the matter to the Office of the General Counsel (OGC) per GN 01010.815. for a determination of whether paternity has been established:

• •

  if the putative father is living and the child seeks to establish paternity other than by the father's acknowledgment or by court order and it is uncertain whether the child has produced clear and convincing evidence;

• •

  if the putative father is deceased and it is uncertain whether the child has produced clear and convincing evidence; or

• •

  if the insured died before 1981 and the clear and convincing evidence standard has not been met.