The NH was domiciled in New York State at the time of his death, therefore we look the intestacy laws of New York to determine if the claimant is entitled to benefits on the NH’s record. The New York intestacy law allows for a non-marital child to be considered the legitimate child of a father such that the child may inherit from the father, provided one of three sets of conditions is satisfied. A child may inherit if “a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity or the mother and father of the child have executed an acknowledgment of paternity, or if the father of the child has signed an instrument acknowledging paternity. In this case, there was no order of filiation “during the lifetime of the father,” and the NH provided no formal acknowledgement of paternity.

However, a child may also inherit under a third prong of the law if paternity has been established by clear and convincing evidence of either the results of a genetic marker test administered to the father or close relative at any time or open and notorious acknowledgment. In this case, the claimant’s mother provided the DNA test that establishes a 99.9% probability that the claimant is the grandchild of NH’s parents. There is also additional evidence that favors a finding of paternity, such as the claimant’s mother’s sworn attestation that her assertions in the Paternity Petition are true and the signed and notarized statement from NH’s mother stating that she is the grandmother of the claimant through her deceased son.

Under the intestacy laws of the state of New York, the claimant could inherit property from the NH as his non-marital child. Thus, if the claimant meets other eligibility requirements, he would be entitled to survivor’s benefits as the child of the NH.

QUESTION PRESENTED

Whether J~ (the claimant) is entitled to survivor’s benefits as the child of Number Holder (NH) L~. 

OPINION

It is our opinion that under the intestacy laws of the state of New York, the claimant could inherit property from the NH as his non-marital child. Thus, if the claimant meets other eligibility requirements, he would be entitled to survivor’s benefits as the child of the NH.

BACKGROUND

The claimant was born in New York, NY, at Metropolitan Hospital Center in April 2004. The Certificate of Birth, as issued at the time of the claimant’s birth, did not record a father’s name. ^[1] The claimant’s alleged father, the NH, died in New York, NY on May 11, 2011, as the result of a stab wound to his chest. The NH’s death certificate listed his address as Bronx, New York.  New York was usual state of residence. The death certificate also listed L2~ as the NH’s mother and J2~ as his father. C~, the claimant’s mother, was at no time married to the NH.

On May 24, 2011, C~, on behalf of the claimant, filed for surviving child’s benefits on the record of L~. This application was denied. C~ filed a new application for surviving child’s benefits for the claimant on September 5, 2013 submitting the claimant’s birth certificate and a notarized statement from the NH’s mother, L2~, where she acknowledged the claimant as her grandson from her deceased son, the NH. This application was denied on September 6, 2013 because not enough evidence was submitted to establish relationship. 

On September 19, 2013, C~ filed a Paternity Petition with the Family Court of the State of New York, Bronx County. Therein, C~ asserted that she and the NH had engaged in sexual intercourse during a period of time beginning on or about May 2004 and ending on or about August 2010, and as a result thereof, C~ became pregnant with the claimant. She further asserted that the NH was the father of the claimant and that he had provided support to the claimant. C~ asked that the court enter a declaration of paternity finding the NH the father of the claimant. On the same day, the Family Court of the State of New York, Bronx County, issued a summons to the NH and L2~, asking them to show cause why the Court should not enter a declaration of paternity.

On October 21, 2013, the Support Magistrate for the Family Court of the State of New York, Bronx County, issued an Order of Filiation by Default, adjudging and declaring that the NH is the father of the claimant.

C~ filed a Reconsideration with the agency on October 22, 2013. Along with this reconsideration, she submitted the October 21, 2013 Order of Filiation by Default.

On November 14, 2013, a DNA test report authored by DNA Diagnostics Center (DDC), found a 99.9% probability that L2~ and J2~ are the claimant’s grandparents. The DNA samples were collected at the offices of Dr. M~. The sample collector certified that he had properly identified the parties and that he had collected, packaged and sealed the specimens and had witnessed the signatures of the parties from whom he collected the specimens.  He further affirmed that no tampering with the specimens occurred while under his control. DDC verified that it received the specimens and found no evidence that the specimens had been tampered with or that the package had been opened prior to DDC receipt. DDC then tested the DNA samples and prepared a report.

On November 19, 2013, the City of New York issued an amended birth certificate for the claimant, identifying the NH as the father of the claimant.

C~ subsequently submitted both the DNA test report and the amended birth certificate to the agency as additional evidence in support of her request for reconsideration.

ANALYSIS

The Social Security Act (the Act) requires that a person be the dependent “child” of an insured individual to qualify for benefits as a surviving child. See section 202(d)(1) of the Act; 42 U.S.C. § 402(d)(1). Section 216(h) of the Act provides the analytical framework that the agency must follow to determine whether an individual is the “child” of an insured individual. Under section 216(h), a child may be entitled to survivor’s benefits on the earnings record of a deceased insured individual if the child could inherit the insured individual’s personal property as his natural child under the intestacy laws of the state in which the insured individual was domiciled at the time of his death. See section 216(h)(2)(A) of the Act; 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). A child who meets the standard that Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). As the NH was domiciled in New York State at the time of his death, the intestacy laws of New York are controlling in this matter.

New York intestacy law allows for a non-marital child such as the claimant to be considered the legitimate child of a father such that the child may inherit from the father, provided one of three sets of conditions is satisfied. N.Y. Est. Powers & Trusts § 4-1.2 (McKinney 2010). A child may inherit (A) if “a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity or the mother and father of the child have executed an acknowledgment of paternity,” or (B) if “the father of the child has signed an instrument acknowledging paternity.” N.Y. Est. Powers & Trusts § 4-1.2(a)(2)(A)-(B). In this case, there was no order of filiation “during the lifetime of the father,” and the NH provided no formal acknowledgement of paternity. However, a child may also inherit under a third prong of the law if “paternity has been established by clear and convincing evidence, which may include, but is not limited to (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own….” N.Y. Estate Powers & Trusts § 4-1.2(a)(2)(C). ^[2] This is a disjunctive test: a claimant may establish paternity with clear and convincing evidence of either (1) the results of a genetic marker test administered to the father (or close relative at any time); or (2) open and notorious acknowledgment. See Memorandum in Support of Legislation, New York State Assembly (Assemb. B. A7899, 233rd Leg. (N.Y. 2010)) (hereinafter Memo to A7899). ^[3] As the first two subsections of the law are inapplicable, the third subsection (i.e. § 4-1.2(a)(2)(C)) must be satisfied if the claimant is to establish his entitlement to survivor’s benefits.  

This case involves a comparison between the child’s DNA and that of the claimant’s alleged grandparents. Relevant New York case law has upheld the use of the decedent’s collateral living relatives, including grandparents, to establish familial relationships. In re Nasert, 748 N.Y.S.2d 654, 655 (N.Y. Surr. Ct. 2002) (holding that results of DNA testing of decedent’s identical twin could meet the requirements of former EPTL 4-1.2(a)(2)(C) and (D)); Estate of Wilkins, 707 N.Y.S.2d 774, 778 (N.Y. Surr. Ct. 2000) (finding that results of DNA testing of decedent’s parents could meet the second prong of paternity test of former EPTL 4-1.2(a)(2)(D)); Estate of Sandler, 612 N.Y.S.2d 756, 757-59 (N.Y. Surr. Ct. 1994) (finding that results of DNA testing of decedent’s parents could constitute clear and convincing evidence under former EPTL 4-1.2.(a)(2)(C)). Further, the legislative history accompanying the latest amendments to N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) indicates that results of genetic marker tests will in most cases be dispositive, and makes clear that such tests include tests administered to a close relative. See Memo to A7899.

Here, the DNA test establishes a 99.9% probability that the claimant is the grandchild of L2~ and J2~. L2~ also stated that the NH was her son. In addition, the NH’s death certificate lists L2~ and J2~ as the NH’s parents. It is undisputed that they are the NH’s parents. The DNA chain of custody and test results also appear to be reliable. See In re Santos, 768 N.Y.S. 2d 272, 275 (N.Y. Surr. Ct. 2003) (holding that the blood should be drawn under strictly controlled laboratory conditions and the chain of custody meticulously documented). Thus, in light of the above cases and the legislative history of the amendments to N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C), the DNA evidence could be used to meet the clear and convincing standard imposed by this section.  

This case also involves additional evidence that favors a finding of paternity, such as C~’s sworn attestation that her assertions in the September 19, 2013 Paternity Petition are true. Additionally, there is a signed and notarized statement from L2~, stating that she is the grandmother of the claimant through her deceased son, the NH. Additionally, a New York Court held that the NH is the claimant’s father, after expressly considering C~’s allegations in the Petition for Paternity. Under New York law, the Family Court decision is not dispositive in this matter. However, courts have held that a posthumous filiation order might constitute additional evidence in establishing paternity. Margaret Valentine Turano, Practice Commentaries to N.Y. Est. Powers & Trusts Law § 4-1.2 (McKinney) (citing Grivas v. Port Authority, 641 N.Y.S.2d 646 (N.Y. App. Div. 1st Dep't 1996) (in wrongful death action, holding that under section 4-1.2(a) of the N.Y. Est. Powers & Trusts Law a posthumous order of filiation is insufficient, by itself, to establish child’s status as a qualified distribute entitled to have a wrongful death action brought on her behalf, but accepting order of filiation as proof of paternity sufficient at least to defeat motion for summary judgment)); Lancaster v. 46 N.Y.L. Partners, 651 N.Y.S.2d 440 (N.Y. App. Div.1st Dep't 1996) (in wrongful death case, holding that two posthumous judgments, of filiation, along with other factors, are sufficient to create issues of fact as to paternity). ^[4] Thus, for the reasons enumerated above, the claimant could inherit the NH’s personal property as his natural child under the intestacy laws of New York, the state in which the NH was domiciled at the time of his death.

CONCLUSION

Under the intestacy laws of the state of New York, the claimant could inherit property from the NH as his non-marital child. Thus, if the claimant meets other eligibility requirements, he would be entitled to survivor’s benefits as the child of the NH.

To determine whether either claimant is the NH’s “child,” we must consider whether, under the intestacy laws of the state the NH was domiciled in at death, each would inherit the NH’s personal property as his natural child. The NH was domiciled in New York, and that State’s laws apply here. Under New York intestacy law, a non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if any of the following are true. First, a court has made an order of filiation declaring paternity or the mother and father of the child have executed a legally sufficient acknowledgment of paternity. Second, the father of the child has signed a legally sufficient instrument acknowledging paternity. Third, paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own.

Neither child satisfies the first two alternatives for establishing child status in accordance with New York intestacy law. However, both children have presented clear and convincing evidence that they are the children of the NH. Claimant M. provided DNA testing proving 99.9 percent probability that he is the NH's child along with other corroborating evidence. Claimant W. presented clear and convincing evidence that the NH openly and notoriously acknowledged the child as his own. Under New York intestacy law, the evidence is sufficient to establish that Claimant W. and Claimant M the children of number holder and they are the NH’s children for the purposes of entitlement to child survivor’s benefits.

QUESTION PRESENTED

For the purposes of entitlement to child survivor’s benefits, is the evidence sufficient under New York intestacy law to establish that W~ and M~ are the children of deceased number holder W~?

OPINION

Under New York intestacy law, the evidence is sufficient to establish that W~ Jr. and M~ are the children of number holder W~ Sr. As such, they are the NH’s children for the purposes of entitlement to child survivor’s benefits.

BACKGROUND

All facts are based upon evidence provided by the New York Center for Programs Support.  To avoid confusion in discussing the numerous parties sharing the same surname, this opinion refers to the parties by their first names and W~ Sr. as the NH.

1. a. 

   The Number Holder

   The number holder W~ Sr. (NH) was born on July. The NH’s birth certificate indicates he was born in Brooklyn to R~ (R~).

   The NH died in Brooklyn on March 28, 2013. The NH’s death certificate lists K~ (K~) as his sister, New York as his usual residence state, Kings as his usual residence county, and Brooklyn as his usual residence city or town.

   The NH’s funeral was held on April 3, 2013. The NH’s obituary indicated that he was survived by his son W~ Jr., his mother R~, and his sister K~.

2. b. 

   W~ Jr.

   W~ Jr. (W~ Jr.) was born July. W~ Jr.’s birth certificate indicates that he was born in Brooklyn to T~ (T~), but does not list a father.

   The NH’s obituary stated that the NH’s “favorite role was being a father to his son W~ Jr., ‘Boom Boom,’” and that the NH “took great pride in working to provide for his son.”

   On September 19, 2013, T~ filed an application for surviving child’s benefits on behalf of her son W~ Jr., claiming that the NH was W~ Jr.’s father.

   In a notarized letter to the agency dated September 24, 2013, R~ wrote that her son, the NH, acknowledged that W~ Jr. was his son. R~ pointed out that the child shared his name. R~ explained that the NH was not available to sign the birth certificate when the child was born.

   On September 26, 2013, T~ completed an SSA “Child Relationship Statement.” T~ indicated that the NH made and was making regular and substantial contributions to W~ Jr.’s support at the time that he died. T~ indicated there was written evidence that would show that W~ Jr. was the NH’s child, including his obituary and R~’s statement. T~ also indicated that the NH admitted orally to his mother that W~ Jr. was his child. However, T~ denied other indicators of a relationship, including any court order, court decrees, or signed statements acknowledging parentage.

   On November 6, 2013, T~ completed a Statement of Claimant or Other Person. T~ stated that, when she was six months pregnant with W~ Jr., in April 2006, the NH went to prison. In May 2010, the NH was released. As soon as he was released, the NH began visiting W~ Jr. daily and would take the child every other weekend. Sometimes the NH took W~ Jr. for weeks at a time. Within months of his release from prison, the NH also began giving T~ money, usually $100 to $200 every other week, but sometimes more. Just before the NH died, he gave T~ $300 to shop for the child, whom he referred to as their son.

3. c. 

   M~

   M~ (M~) was born on July. M~’s birth certificate indicates that he was born in Brooklyn to E~ (E~), but does not list a father.

   On July 8, 2013, K~, E~, and M~ provided specimens for a DNA test.

   In a notarized report dated July 11, 2013, DNA Diagnostics Center Laboratory Director Dr. D~ verified the results of the DNA analysis. The report indicated a 99.9 percent probability that K~ (described as an alleged paternal aunt) and M~ were genetically related.

   In a notarized letter dated September 5, 2013, K~ wrote that she was the NH’s maternal sister. K~ stated that the NH’s surviving family members acknowledged that the NH had a romantic relationship with E~. K~ also stated that a DNA test indicated that she was genetically related to M~.

   On September 6, 2013, E~ filed an application for surviving child’s benefits on behalf of her son M~, claiming that the NH was M~’s father.

   In a notarized letter to the agency dated September 22, 2013, R~ wrote that her son, the NH, had been aware that M~ was his child prior to his death. R~ also noted that her daughter, K~, had undergone DNA testing, which indicated that she was genetically related to M~.

   On November 30, 2013, E~ completed an SSA “Child Relationship Statement.” E~ indicated that the NH admitted orally to his mother that M~ was his child. However, E~ denied other indicators of a relationship, including any court orders, court decrees, or signed statements acknowledging parentage.

ANALYSIS

To be entitled to benefits as surviving children on the NH’s record, M~ and W~ Jr. must show that they are the NH’s dependent children. See Section 202(d)(1) of the Act; 42 U.S.C. § 402(d)(1).  To determine whether either claimant is the NH’s “child,” we must consider whether, under the intestacy laws of the state the NH was domiciled in at death, each would inherit the NH’s personal property as his natural child. See section 216(h)(2)(A) of the Act; 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). A child who meets the standard that Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent, as required by the Act. See Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976).

SSA defines a person’s “domicile” as the place where a person has his true, fixed, and permanent home to which he intends to return whenever away. Program Operations Manual System (POMS) GN 00305.001. Only New York can meet this standard for the NH. The NH’s birth and death certificates indicate that he was born in Brooklyn. The NH’s death certificate listed a Brooklyn address. The death certificate also indicated that his usual state of residence was New York, his usual county of residence was Kings, and his usual city or town of residence was Brooklyn. He also reportedly had regular contact with one of his alleged children, W~ Jr., whose mother provided a mailing address in Brooklyn. In addition, the NH’s funeral was held in Brooklyn. There is no indication that he ever lived outside of New York or intended to leave. Thus, the NH was domiciled in New York, and that State’s laws apply here.

Under New York intestacy law, a non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if any of the following are true. N.Y. Est. Powers & Trusts § 4-1.2; see POMS GN 00306.575(b)(7). First, a court has made an order of filiation declaring paternity or the mother and father of the child have executed a legally sufficient acknowledgment of paternity. Id. at (A)(2)(a). Second, the father of the child has signed a legally sufficient instrument acknowledging paternity. Id. at (A)(2)(b). Third, paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own. Id. at (A)(2)(c). N.Y. Est. Powers & Trusts § 4-1.2 was significantly altered effective April 28, 2010. A previous version of this statute had been interpreted to require clear and convincing evidence of open and notorious acknowledgement before admitting DNA evidence and also limited the use of posthumous DNA evidence. See Matter of P~, 50 A.D.3d 117 (N.Y. 2008) (reviewing case law). The legislature amended the statute to “facilitate” and clarify the use of DNA evidence to establish paternity. Memorandum in Support of Legislation, New York State Assembly, (Assemb. B. A7899, 233rd Leg. (N.Y. 2010)) (Memo to A7889), available at http://assembly.state.ny.us/leg/?default_fld=&bn=A07899&term=2009&Memo=Yphrase “clear and convincing evidence” has been defined as, “evidence which is entirely satisfactory and creates a genuine belief that the [alleged father] is the father of the child.” Matter of Anne R. v. Estate of Francis C., 234 A.D. 2d 375 (N.Y. App. Div. 1996) (quoting Matter of Comm’r of Soc. Services [Patricia A.] v. Philip De G., 59 N.Y. 2d 137, 141-142 (N.Y. 1983)).

Neither child satisfies the first two alternatives for establishing child status in accordance with New York intestacy law. See N.Y. Est. Powers & Trusts § 4-1.2 (A)(2)(a),(b). T~ and E~ indicated that no court had ever issued any kind of order or decree with respect to these children and that the NH never signed a written statement regarding paternity.

Nissiah, however, has presented clear and convincing evidence, including evidence derived from a genetic marker test. Id. at (A)(2)(c)(i). DNA testing indicated a 99.9 percent probability that the child was genetically related to K~. The NH’s death certificate, the obituary, K~, and R~ all indicated that K~ is the NH’s sister.  The test results were certified by a professional and notarized. Posthumous testing of a decedent’s close relative is sufficient to establish paternity. Memo to A7899 (“Thus, proof may be in the form of a genetic marker test administered to the father (or close relative at any time…”); see also In re N~, 748 N.Y.S. 2d 654 (N.Y. Surr. Ct. Sept. 16, 2002) (citing Matter of S~, 612 N.Y.S.2d 756 (N.Y. Surr. Ct. April 26, 1994)) (DNA testing could be done on an identical twin brother of testator to establish paternity of testator where mother of testator’s alleged illegitimate daughter had a sexual relationship exclusively with testator and not his twin during the critical period of conception). Probabilities much lower than 99.9 percent can be clear and convincing. In re S~, 768 N.Y.S. 2d 272, 274 (N.Y. Surr. Ct. July 03, 2003) (“99-100 percent scientifically acceptable certainty” of paternity “clearly meet[s] a ‘clear and convincing’ standard”); Reidy on Behalf of Charlotte P v. Jeffrey K, 125 A.D.2d 825(N.Y. App. Div. 1986) (upholding a finding of paternity based upon DNA testing reflecting an 85.4% probability); King v. Tanner, 545 N.Y.S. 2d 649, 651 (N.Y. Sup. 1989) (“nowhere is there a requirement that blood testing [be] 100% accurate” to establish paternity); see also Palmer v. Carter, 543 N.Y.S. 2d 625, 625-626 (N.Y. Fam. Ct. 1989) (“Although paternity must be supported by more than a mere preponderance, the evidence need not be sufficient to overcome any reasonable doubt”) (citing Hanley v. Wilcox, 57 A.D. 2d 697 (N.Y. App. Div.1977)). Legislative history accompanying the latest amendments to N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) also indicates that results of genetic marker tests will in most cases be dispositive. See Memo to A7899. We recognize that the test results provide little information regarding the “chain of custody” of the parties’ specimens. However, the lack of such evidence is not dispositive where, as here, other evidence provides a “reasonable assurance” that the specimens are genuine. T~ v. A~, 674 F.Supp.2d 507, 513 (S.D.N.Y. Dec. 9, 2009). The certified and notarized test report indicated that K~, E~, and N~ provided the specimens. In notarized statements, K~ and R~ also confirmed that K~ underwent the DNA testing that indicated a relation to M~. There is no indication that any of the specimens were those of an imposter. As the court recognized in T~, it would be difficult for an alleged child or a laboratory to skew a DNA test to be positive because “imposters would have to be chosen brillI~tly (by the [lab] technicI~s or by [the claimants], or maybe both) to engineer the three-pronged family footprint shown in the test result.” Id. In contrast, an alleged father could easily skew a DNA test to be negative by obtaining a specimen from a random, unrelated male. Id. Other evidence also indicated that M~ was the NH’s child. E~ stated that M~ was the NH’s child. R~ stated that the NH acknowledged that M~ was his child. K~ also stated that she, and the rest of her family, acknowledged that the NH had been romantically involved with E~.

W~ Jr. also presented clear and convincing evidence that the NH openly and notoriously acknowledged the child as his own. N.Y. Est. Powers & Trusts § 4-1.2(A)(2)(c)(ii). T~ indicated that the NH referred to W~ Jr. as his son. R~ also indicated that her son acknowledged the child. The NH’s obituary indicated that he was a proud father to the child. The NH also demonstrated that he acknowledged the child through his actions. T~ indicated that, after leaving prison, the NH visited with the child regularly and supported him financially. The NH’s obituary similarly referred to him supporting his son. Paternity has been attributed to fathers for doing little more than telling family members or others in the community about their children. See, e.g. Tumminia v. Savattere, 654 N.Y.S. 2d 676 (N.Y. 2d Dept. 1997) (disclosure to friends and relatives); Matter of Anne R. v. Estate of Francis C., 651 N.Y.S.2d 539 (N.Y. 2d Dept. 1996) (acknowledgment of paternity in the community in which the child lives); Matter of W~, 691 N.Y.S.2d 878 (Sur. Ct., N.Y. County 1999) (disclosure to family). The NH’s words and actions more than met this standard.

CONCLUSION

W~ Jr. and M~ are the NH’s children for the purposes of inheritance under New York intestacy law. As such, they are the NH’s children for the purposes of entitlement to child survivor’s benefits.

Based on the facts in this case there is a child relationship between the children and the Number Holder (NH) Jeffrey. The children were adopted by their natural mother after she divorced the NH, who is the father of the children. The children are entitled to inherit personal property from the NH’s estate under New York intestacy laws. Further, the NH was contributing to the children’s support at the time the children filed their applications. Thus, the children qualify as the NH’s children for purposes of entitlement to auxiliary benefits on the NH’s account.

QUESTION PRESENTED

 You asked whether claimants S~ (formerly S~) (S~), and C~ (formerly C~) (C~ W~), who were adopted by their birth mother, M~ (M~), after she and the NH had divorced, qualify as the NH’s children for purposes of entitlement to auxiliary benefits on the NH’s record.

OPINION

We conclude that S~ and C~ are entitled to inherit personal property from the NH’s estate under New York intestacy laws. Further, the NH was contributing to the children’s support at the time the children filed their applications. Thus, S~ and C~ qualify as the NH’s children for purposes of entitlement to auxiliary benefits on the NH’s account.

BACKGROUND

Your office provided the following documents:

• •

  M~’s statement on the remarks screen of the applications for S~ and C~.

• •

  Judgment of Divorce between M~ and Jeffrey, issued on January 8, 2004.

• •

  Order of Adoption by M~ of S~, dated May 24, 2010.

• •

  Amended Birth Certificate for S~, dated June 3, 2010.

• •

  Order of Adoption by M~ of C~ , dated May 24, 2010.

• •

  Amended Birth Certificate for C~, dated June 16, 2010.

• •

  New York State Order of Income Withholding for Support of S~ and C~, dated December 2, 2011 and addressed to SSA.

• •

  New York State Order of Income Withholding for Support of S~ and C~, dated January 13, 2012 and addressed to SSA.

• •

  NH’s application for disability insurance benefits, dated December 13, 2011.

• •

  M~’s statement that she and the NH were married on August 2, 1997 in Portville, NY.

On May, M~ gave birth to S~ in Olean, NY. The NH and M~ married on August 2, 1997, in Portville, New York. On August, M~ gave birth to C~ in Fort Campbell, TN. M~ did not provide copies of the children’s original birth certificates. The couple divorced on January 8, 2004, in Olean, New York. The Judgment of Divorce stated that S~ and C~ are the infant issues of the marriage, and the Judgment ordered that the NH pay child support.

On May 24, 2010, the Surrogate’s Court of the State of New York, County of Cattaraugus, granted M~’s petitions for adoption of S~ and C~. The Orders of Adoption stated that the NH, who is the birth father, had abandoned the children. The Orders of Adoption changed S~ and C~’s last name to B~. M~ then obtained amended birth certificates for the children. The father’s name is not listed on the amended certificates.

On November 11, 2011, the NH applied for Social Security Disability benefits alleging an onset date of April 2, 2011. The NH was found eligible for benefits as of October 2011. In his application, he listed two children from his second marriage, but did not list S~ and C~. The NH’s second wife informed SSA that the NH also had two other children (S~ and C~) from his first marriage. She identified S~’s and C~’s mother as M~.

SSA contacted M~, and on May 29, 2012, she filed for auxiliary benefits for S~ and C~ on the NH’s record. When she filed for those benefits, M~ told SSA that S~ and C~ had not had any contact with their father, and that she had petitioned for their adoption in May 2010 because S~ and C~ wanted to have their last name changed to B~. She said she had pursued adoption on the advice of an attorney who told her it would be a less expensive way to change the children’s last name. M~ told the agency that she alone participated in the adoption and that the NH did not sign away his rights as the children’s father.

When M~ filed for child’s benefits on S~’s and C~’s behalf, she told SSA that the NH had not been paying child support as ordered in the Judgment of Divorce. However, pursuant to New York State Notices of Income Withholding for support of S~ and C~ dated December 6, 2011 and January 13, 2012, SSA began garnishing the NH’s benefits on January 17, 2012. ^[5] The notices reflect child support arrears of $36,807.14.

DISCUSSION

Federal Law

In order to receive children’s benefits under the Act, a child must be the dependent “child” of the wage earner in accordance with the Act’s criteria. 42 U.S.C. § 402(d)(1). The Act includes both a definition of “child,” and instructions on how the Commissioner should determine whether an applicant is a “child.” Section 416(e) defines a “child” to mean “(1) the child or legally adopted child of an individual . . . .” 42 U.S.C. § 416(e). Section 416(h)(2)(A) of the Act, captioned “Determination of Family Status,” contains Congress’s instructions for the primary method utilized by the Commissioner in determining parent-child relationships:

In determining whether an applicant is the child . . . of a fully or currently insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property . . . . by the courts of the State in which [such insured individual] was domiciled at the time such applicant files an application. . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). A child who meets the standard that Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976); 20 C.F.R. § 404.361(a).

POMS contemplates that where a child is adopted by someone other than the NH, the child is the NH’s child for benefit purposes if:

1. (1) 

   The adoption did not cut off the child’s inheritance rights in the NH’s estate under applicable State law; and

2. (2) 

   The NH was living with or contributing to the child’s support at certain specified times, including at the time the child’s application is filed.

POMS GN 00306.165A and GN 00306.007A.1.

If the NH is living, the agency applies the law of the state where the insured has his permanent home when the application is filed. 20 C.F.R. § 404.355(b)(3). You have advised us that the NH resides in New York State. Therefore, New York State law applies.

New York State Law

In New York, the right of intestate succession is a statutory creation and there is no common-law right of inheritance. Irving Trust Co. v. Day, 314 U.S. 556, 562 (1946) (citations omitted); In Re W~’s Estate, 101 N.E. 793, 794 (N.Y. 1913). New York’s intestacy law specifies that the “issue” of a decedent are eligible to inherit a decedent’s property. N.Y. Est. Powers & Trusts Law § 4-1.1 (McKinney 2013). The law defines “issue” as “descendants in any degree from a common ancestor,” which would include a decedent’s children. N.Y. Est. Powers & Trusts § 1-2.10 Law (McKinney 2013). Prior to the adoption, the children are the issue of the NH and would be able to inherit personal property from him under New York’s intestacy laws. N.Y. Est. Powers & Trusts Law § 4-1.1 (McKinney 2013). ^[6] The question is whether the adoption of the children by M~, after she and the NH had divorced, extinguished the children’s inheritance rights from the NH.

New York intestacy law provides that the right of an adopted child to take a distributive share continue as provided in the domestic relations law. N.Y. Est. Powers & Trusts Law § 4-1.1(d) (McKinney 2013). Under the domestic relations law, the general rule is that an order of adoption has the effect of severing all legal ties previously existing between the adoptive child and her birth parents. N.Y. Dom. Rel. Law § 117(1)(a) (McKinney 2013). For purposes of intestate descent and distribution of realty and personalty, the rights of the adopted child to inherit from and through her birth parents also generally terminate upon the making of the order of adoption. N.Y. Dom. Rel. Law § 117(1)(b) (McKinney 2013).

However, New York law provides an exception to this general rule. Specifically, if:

(1) the decedent is the adoptive child's birth grandparent or is a descendant of such grandparent, and

(2) an adoptive parent (i) is married to the child's birth parent, (ii) is the child's birth grandparent, or (iii) is descended from such grandparent,

the rights of an adoptive child to inheritance and succession from and through either birth parent shall not terminate upon the making of the order of adoption. N.Y. Dom. Rel. Law § 117(1)(e) (McKinney 2013). A New York court has interpreted this provision to mean that the statute preserves the right of a child to inherit from either birth parent so long as her adoptive parent was a descendant of any of the child’s birth grandparents. In re Estate of J~, 850 N.Y.S.2d 855 (N.Y. Surr. 2008).

Here, the NH is a descendant of the children’s birth grandparent and the children’s adoptive parent, M~, is also a descendant of the children’s birth grandparent. Thus, under New York law, the children’s rights to inheritance and succession from and through either birth parent did not terminate upon the making of the order of the adoption. N.Y. Dom. Rel. Law § 117(1)(e). Accordingly, S~ and C~ can inherit personal property under intestacy from the NH and the adoption did not cut off the child’s inheritance rights in the NH’s estate under applicable State law. POMS GN 00306.165A.

Additionally, the NH was living with or contributing to the child’s support at the time the child’s application is filed. POMS GN 00306.165A and GN 00306.007A.1. Here, SSA began garnishing the NH’s benefits on January 17, 2012. M~ filed for auxiliary benefits for S~ and C~ on the NH’s record on May 29, 2012. Thus, the NH was contributing to the children’s support at the time the children’s applications were filed and the dependency requirement is met. POMS GN 00306.165A and GN 00306.007A.1. Accordingly, S~ and C~ qualify as the NH’s children for purposes of entitlement to auxiliary benefits on the NH’s account. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

Analysis under SSR 83-37c

Additionally, under Social Security Ruling 83-37c (Gray v. R~son, 474 F.2d 1370 (6th Cir.1974)), we believe the agency is not bound by the May 25, 2010 Adoption Orders. Under G~, the Commissioner is not free to ignore an adjudication of a State trial court where the following prerequisites are found: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. SSR 83-37c.

Although the Adoption Orders satisfy the first and third prongs of G~, they do not satisfy the second and fourth prongs. The orders address an issue in a claim for Social Security benefits (the first prong) and the issue falls within the general category of domestic relations law, as it deals with the validity of an adoption, and its effect on inheritance rights (the third prong). However, the second prong of G~ requires that the issue be genuinely contested before the State court by parties with opposing interests. Here, the NH did not appear in court to contest the adoption of S~ and C~. Under these facts, the second prong of the Gray v. R~son analysis has not been met.

With respect to the fourth prong, i.e. whether the resolution by the State trial court is consistent with the law enunciated by the highest court in the State, our research indicates that the issue presented here has not been considered by the New York Court of Appeals. Nonetheless, New York law provides a limited universe of individuals who may adopt another person. N.Y. Dom. Rel. Law § 110 (McKinney’s 2013). A New York appeals court concluded that the statutory adoption framework does not contemplate the adoption by an unmarried biological parent of a child born out of wedlock. Matter of Z~ D.K., 804 N.Y.S.2d 197 (N.Y. App. Div. 2005). Another New York court refused to permit the adoption of a child by the biological brother of the child’s natural mother, even though the child’s natural father had purported to consent to the adoption in exchange for the mother’s agreement that his child support obligation would cease. Matter of G~, 841 N.Y.S. 2d 731 (N.Y. Sur. 2007). Thus, the Commissioner is not bound by the adoption order since the fourth and final prong of the G~ analysis also is not met.

CONCLUSION

Despite the fact that the children’s birth mother adopted the children after she and the NH had divorced, S~ and C~ are entitled to inherit personal property from the NH’s estate under New York intestacy laws. Further, the children meet the child dependency requirements. Thus, they qualify as the NH’s children for purposes of entitlement to auxiliary benefits on the NH’s account.

The evidence presented that claimant was not the NH’s child consists of the absence of a father’s name on claimant’s birth certificate and the absence of claimant’s name on the NH’s earlier benefit claims. We do not believe that this evidence is sufficient to meet the “clear and convincing” standard set forth by New York law. It is our opinion that SSA does not have sufficient evidence to rebut the presumption of legitimacy that a child born to a married woman has been fathered by her husband. New York follows the Lord Mansfield’s rule, which prohibits the use of the testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. Further, New York public policy does not permit a child to be delegitimized. In this case, the claimant is entitled to auxiliary benefits on the NH’s account because, under the intestacy laws of the State of New York, the claimant could inherit the NH’s personal property.

QUESTION PRESENTED

 You have asked for an opinion as to whether J~ (the claimant) is entitled to auxiliary benefits on the account of W~ NH), pursuant to Section 216(h)(2) or (h)(3) of the Social Security Act (the Act), 42 U.S.C. § 416(h). The NH was married to J~’s mother, M~, when she gave birth to the claimant; however, both M~ and the NH state that the claimant is not the NH’s biological son.

OPINION

It is our opinion that under Lord Mansfield’s Rule, which precludes testimony of non-access in a marriage, SSA does not have sufficient evidence to rebut the presumption of legitimacy that a child born to a married woman has been fathered by her husband. Further, New York public policy does not permit a child to be delegitimized. Therefore, the claimant is entitled to auxiliary benefits on the NH’s account because, under the intestacy laws of the State of New York, the claimant could inherit the NH’s personal property.

BACKGROUND

The NH married M~ in Huntington, New York on September 19, 1992. The claimant was born in Huntington, New York, in December.  The Certificate of Birth did not record a father’s name. The claimant’s last name is listed as W~ and M~.

The NH filed for Social Security disability benefits three times, and he did not name the claimant as his child on any of the applications. The only child mentioned was W~. The NH’s disability claim was approved in 2009 and an application for auxiliary benefits was filed for W~ .

On September 12, 2012, M~ filed a claim on behalf of the claimant on the NH’s record.  In her application and a subsequent letter in support of her claim, M~ stated that she is legally married to the NH, but they had separated in the mid 1990s. She further stated that J~ is not the biological child of the NH and the couple was not living together when the claimant was conceived. M~ also stated that she continues to be married to the NH, the NH is known as the claimant’s father, the relationship between the NH and the claimant is good, and the two see each other often.

According to the NH, although he is not claimant’s biological father, he sees the claimant regularly and the claimant knows him as his father. The NH also claims that he did not mention J~ on his disability applications because he thought SSA was asking about children who lived with him.

Evidence of the case:

• •

  Marriage Certificate of the NH and M~

• •

  Birth Certificate for J~

• •

  Statements by M~

• •

  Statement by the NH

• •

  Reports of Contact by the Claims Representative

ANALYSIS

 We believe that, after the application of Lord Mansfield’s rule, sufficient evidence has not been presented to rebut the presumption that the NH is J~’s father.

A.   Entitlement to Auxiliary Benefits - In General

For purposes of child’s benefits under the Act, a “child” is defined as the child, legally adopted child, stepchild, or, in limited circumstances, grandchild of an insured individual. Sections 202(d), 216(e) of the Act. See 42 U.S.C. §§ 402(d), 416(e).  Under one method for determining whether an applicant is the child of an insured individual, the Commissioner applies the law governing the devolution of intestate personal property applied by the courts of the State in which the insured individual was domiciled at the time he files an application. See 42 U.S.C. § 416(h)(2)(A). If the claimant can inherit as the NH’s child under the state intestacy law, he is considered the NH’s “child” under sections 216(e) and 216(h)(2)(A) of the Act. See id. Because the NH was domiciled in New York when the claimant’s application was filed, New York’s law of intestate succession applies in determining the claimant’s status as the child of the NH for purposes of section 216(h)(2)(A) of the Act. 20 C.F.R. §§ 404.355(a)(1), 404.355(b).  Therefore, New York law applies in determining whether the claimant is a child under the Act.

B.     Intestate Succession Under New York Law

New York’s intestacy law provides that the “issue” of a decedent are eligible to inherit the decedent’s property. N.Y. Est. Powers & Trusts Law § 4-1.1 (McKinney 2011).  State law defines “issue” as descendants in any degree from a common ancestor, including adopted children. N.Y. Est. Powers & Trusts Law § 1-2.10 (McKinney 2011).

New York law presumes that a child born to a married woman has been fathered by her husband. In re F~’s Estate, 44 N.Y. 2d 137, 142 (N.Y. 1978), app. dism’d 439 U.S. 1059 (1979), reh’g den. 440 U.S. 968 (1979). New York courts have described this presumption as “one of the strongest and most persuasive known to the law.” In re F~, 253 N.Y. 1, 7 (N.Y. 1930). However, the presumption of legitimacy may be rebutted by clear and convincing evidence to the contrary. Marilene S. v. David H., 63 A.D.3d 949 (N.Y. App. Div. 2009). To be “clear and convincing,” evidence must be sufficient to show that the application of the presumption of legitimacy under the particular circumstances of the case would be “entirely incompatible with ‘common sense and reason.’”  In re F~, 859 N.Y.S. 2d 902, 902 (N.Y. Surr. 2008) (citations omitted). In F~, the court held that the clear and convincing standard required evidence establishing that it is “highly probable” that a mother’s husband is not the child’s biological father. Id. (citation omitted).

Such evidence may include non-scientific evidence sufficient to overcome the presumption as wholly incompatible with reason and common sense. Id. at 902. Examples of evidence that is acceptable to overcome the presumption of legitimacy include proof that the spouses did not have access to each other at or around the time of conception, genetic testing establishing that the husband is not the biological father, or proof that the husband was physically incapable of fathering a child. Id. at 902, n. 1 (citations omitted).

However, with regard to evidence of non-access, New York follows Lord Mansfield’s rule, which prohibits the use of the testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. Comm’r of Pub. Welfare ex rel. Vincent v. Koehler, 284 N.Y. 260, 265 (N.Y. 1940); R~ B. v. Sandra B. B., 209 A.D.2d 139 (N.Y. App. Div. 1995); State ex rel. H. v. P., 457 N.Y.S. 2d 488, 491 (N.Y. App. Div. 1982); see also POMS GN 00306.015 (SSA follows state rules including Lord Mansfield’s rule), GN 00306.025 (SSA will not accept evidence contrary to Lord Mansfield’s rule), and GN 00306.026 (New York follows Lord Mansfield’s rule).

Based on the evidence provided, and on our review of New York law, we believe that insufficient evidence has been presented to rebut the presumption of legitimacy.  The evidence provided indicates that the NH was married to M~ at the time of the claimant’s conception, thus creating a presumption under New York law that he is the NH’s child. Because New York courts apply Lord Mansfield’s Rule, they would not accept the testimony of the NH or M~ to prove that the claimant was not the NH’s son. Id. Excluding their testimony, the only evidence that claimant was not the NH’s child consists of the absence of a father’s name on claimant’s birth certificate and the absence of claimant’s name on the NH’s earlier benefit claims. We do not believe that this evidence is sufficient to meet the “clear and convincing” standard set forth by New York law.

We note that New York has created a statutory exception to Lord Mansfield’s rule for paternity proceedings. S~ NY Fam. Ct Act § 531. Section 5 of the Family Court Act was found to be unconstitutional as applied to genetic mothers who could not establish maternity, but the Court extended the statute rather than strike it. In re S~, 879 N.Y.S.2d 677, 689-90 (Surr. Ct. N.Y. Cty 2009). Therefore, S~ does not have an impact on the pending case.

 We do not believe that that exception applies here. Significantly, there is no action to establish paternity. See Fam. Ct Act, § 522 (permitting proceedings for two purposes: to establish the paternity of a child and to compel support).  Rather, the statements by NH and M~ go to delegitimizing the claimant. It is contrary to New York State’s public policy to delegitimize a child without settling the issue of paternity. H. v. P., 457 N.Y.S. 2d at 489. Indeed, where a child has known one person as his father, courts have sometimes estopped the father from attempting to deny paternity. See, e.g., Felix O. v. Janette M., 934 N.Y.S.2d 424, 426-27 (N.Y. App. 2nd Dept.2011) (estopping person seeking genetic testing where child had relationship with his known father).

Thus, even assuming that New York law would permit the testimony of the NH and M~ in a paternity action, it is unlikely that a court would find the presumption of legitimacy has been overcome. See H.v. P., 457 N.Y.S. at 489-91 (In hA~as corpus proceedings, court invoked Lord Mansfield’s Rule because there was no proceeding pending to establish paternity or support). 

CONCLUSION

Thus, based upon our review of law and the facts you provided to us, we believe that sufficient evidence to rebut the presumption of legitimacy has not been presented in this case. Therefore, the claimant is entitled to auxiliary benefits on the NH’s account because, under the intestacy laws of the State of New York, the claimant could inherit the NH’s personal property.

Stephen P. Conte

Regional Chief Counsel, Region II

By: ____________

Graham Morrison

Assistant Regional Counsel

In this case, the NH was an automotive mechanic who died on March 22, 2009, when his vehicle struck a tree. On October 7, 2010, J~, the claimant’s mother, filed an application for survivor’s benefits on behalf of her daughter, and alleged that the claimant was the natural child of J~ (NH).

The claimant provided the following evidence in support of the claim, that included 1. a death certificate for the NH showing that he died March 22, 2009, in the State of New York. 2. A Death Certificate also states that the NH resided in Massapequa, New York, the birth certificate from the City of New York showing that the claimant was born September , the space for the father’s name is blank and 3. DNA testing from DNA Diagnostics Center (DDC) dated January 16, 2011, which states that the claimant cannot be excluded as the granddaughter of E~ and J~ . The testing results revealed that the probability that claimant is the grandchild of E~ and J~ is 99.7%. The test results are certified by the laboratory director.

As a result, the evidence presented in this case would be sufficient for a New York court to find that claimant could inherit the NH’s personal property as his child under N.Y.

QUESTION PRESENTED

Whether S~ (claimant) is entitled to survivor’s benefits as the child of the deceased number holder, J~ (NH).

OPINION

It is our opinion that the claimant is entitled to survivor’s benefits on the NH’s account because, under New York’s intestacy laws, claimant could inherit the NH’s personal property as his child.

BACKGROUND

The NH, an automotive mechanic, died on March 22, 2009, when his vehicle struck a tree. On October 7, 2010, J~, the claimant’s mother, filed an application for survivor’s benefits on behalf of her daughter, and alleged that the claimant was the NH’s natural child.

The NH was domiciled and died in the State of New York. The claimant never filed an application for benefits on the NH’s record during his lifetime.

The claimant provided the following evidence in support of the claim:

• •

  Death Certificate for the NH showing that he died March 22, 2009, in the State of New York. The Death Certificate also states that the NH resided in Massapequa, New York.

• •

  Birth Certificate from the City of New York showing that the claimant was born September . The space for the father’s name is blank.

• •

  DNA testing from DNA Diagnostics Center (DDC) dated January 16, 2011, which states that the claimant cannot be excluded as the granddaughter of E~ and J~. The testing results revealed that the probability that claimant is the grandchild of E~ and J~ is 99.7%. The test results are certified by the laboratory director.

• •

  Statement from the NH’s brother, Luis, that the NH is the father of the claimant. Luis stated that the NH was the “happiest person in the world” when he learned that his girlfriend, J~ , was pregnant with claimant.

• •

  Statement from the NH’s father, J~, that on January 2, 2009, the NH told his father that he would be a grandfather. J~ stated that the claimant was his grandchild.

• •

  Statement from the NH’s mother, E~ S~, that her son had told her that his girlfriend was pregnant.

On March 17, 2011, we asked claimant’s mother J~ to contact DDC regarding their collection procedures. A DDC affiliate provided a Chain of Custody form that states that J~, claimant, E~ , and J~ each provided specimens for testing on January 9, 2011. J~ , E~ and J~ provided the last four digits of their respective Social Security Numbers, and each signed the form. Attached to the form are copies of their three driver’s licenses. Specimen collector, A~ , also signed the form and certified that he properly identified the parties, and collected, packaged, and sealed the specimens. A~ affirmed under penalty of perjury that no tampering occurred while the specimens were under his control. There is also a form signed by a DDC employee and dated January 11, 2011, that states that the employee received a package that was sealed and secure, with no evidence of specimen tampering.

1. 1. 

   Analysis

The Social Security Act (the Act) requires that a person be the dependent “child” of an insured individual to qualify for surviving child’s benefits. See section 202(d)(1) of the Act; 42 U.S.C. § 402(d)(1). Section 216(h) of the Act provides the analytical framework that the agency must follow to determine whether an individual is the “child” of an insured individual. As relevant here, under section 216(h), a child may be entitled to survivor’s benefits on the earnings record of a deceased insured individual if the child could inherit the insured individual’s personal property as his natural child under the intestacy laws of the state in which the insured individual was domiciled at the time of his death. See section 216(h)(2)(A) of the Act; 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). A child who meets the standard that Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). Accordingly, to be entitled to survivor’s benefits on the NH’s account, the claimant must be able to inherit the NH’s personal property as his natural child under New York State inheritance law.

New York intestacy law specifies that the “issue” of a decedent are eligible to inherit a decedent’s property. N.Y. Est. Powers & Trusts § 4-1.1 (McKinney 2011). The law defines “issue” as “descendants in any degree from a common ancestor,” which would include a decedent’s children. N.Y. Est. Powers & Trusts § 1-2.10 (McKinney 2011). Further, the term “issue” includes a “non-marital child” who has inheritance rights from his alleged father under certain conditions. N.Y. Est. Powers & Trusts § 4-1.2 (McKinney 2010).

N.Y. Est. Powers & Trusts Law § 4-1.2 governs the rights of inheritance by non-marital children. This section was recently amended to revise the standard used for determining inheritance rights of non-marital children. The amending act specifies that it applies to estates of decedents dying on or after the effective date, April 28, 2010. L.2010 c. 64 § 4. Since the NH died on March 22, 2009, for purposes of intestate distribution New York courts would apply the prior version of the law. However, under 20 C.F.R. § 404.355(b)(4), the agency applies the State law that exists at the time of the final decision on the claimant’s application, unless the previous version would be more favorable to the claimant. Since the prior version of N.Y. Est. Powers & Trusts Law § 4-1.2 would be less favorable to the claimant, the version as amended is applied in the following analysis, in accordance with 20 C.F.R. § 404.355(b)(4).

Under N.Y. Est. Powers & Trusts Law § 4-1.2, as amended, a non-marital child may inherit from the father if paternity can be established under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C): Clear and Convincing Evidence. ^[7] In New York, non-marital children may inherit from their father when “paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own . . . .” N.Y. Est. Powers & Trusts Law § 4-1.2 (a)(2)(C). This is a disjunctive test: a claimant may establish paternity with clear and convincing evidence of either (1) open and notorious acknowledgment; or (2) by the results of a genetic marker test administered to the father (or close relative at any time). See Memorandum in Support of Legislation, New York State Assembly (Assemb. B. A7899, 233rd Leg. (N.Y. 2010)) (hereinafter Memo to A7899). ^[8]

Since DNA testing confers great persuasive power and is such a complex procedure, the testing must be governed by the highest standards of scientific rigor. Barbara Ann W. v. David WY., 701 N.Y.S.2d 845, 849 (NY. Fam. Ct. 1999). A New York statute allows for automatic admissibility of DNA test results for the alleged father if the evidence was court ordered and it was performed by an authorized laboratory, the laboratory is authorized by the Commissioner of the New York State Department of Health to conduct DNA testing, and the test is certified or authenticated by the head of the laboratory. N.Y.C.P.L.R. 4518(d)-(e); see Barbara A. W~, 701 N.Y.S.2d at 849. It is presumed that DNA testing conducted pursuant to a court order and properly certified complies with the appropriate New York Department of Health complI~ce standards. Id. A DNA test conducted on an alleged father according to the requirements of section 4518(d) and which shows a probability of paternity of at least 95%, establishes a rebuttable presumption of paternity. N.Y.C.P.L.R. 4518(d).

The DNA test results in this case do not meet the standards for a presumption of paternity since the DNA test was not conducted on the alleged father pursuant to a court order. See N.Y. C.P.L.R. 4518(d). Nevertheless, New York state courts have held that such tests can provide clear and convincing evidence of paternity. See Seaton v. County of Suffolk, 912 N.Y.S. 2d 289 (N.Y. App. Div. 2010)(posthumous DNA test showing 99.99% probability that deceased was father of the child constituted clear and convincing proof of paternity under former EPTL 4-1.2(a)(2)(C)); Matter of T~, 769 N.Y.S. 2d 863 (N.Y. Surr. Ct. Dec. 5, 2003) (posthumous DNA test showing 99.98% probability that deceased was child’s father constitutes clear and convincing evidence under former EPTL 4-1.2(a)(2)(C)); Matter of B~, 745 N.Y.S.2d 813 (N.Y. Surr. Ct. 2002) (posthumous DNA test results can constitute clear and convincing evidence under former EPTL 4-1.2(a)(2)(C)).

In this case, the DNA testing was not performed on the NH, but rather on the claimant’s alleged grandparents, E~ and J~]. Since they are the biological parents of the NH, relevant New York case law has upheld the use of this method of testing (using the decedent’s collateral living relatives to establish familial relationships). In re N~, 748 N.Y.S.2d 654, 655 (N.Y. Surr. Ct. 2002) (holding that results of DNA testing of decedent’s identical twin could meet the requirements of former EPTL 4-1.2(a)(2)(C) and (D)); ^[9] Estate of W~, 707 N.Y.S.2d 774, 778 (N.Y. Surr. Ct. 2000) (finding that results of DNA testing of decedent’s parents could meet the second prong of paternity test of former EPTL 4-1.2(a)(2)(D)); Estate of S~, 612 N.Y.S.2d 756, 757-59 (N.Y. Surr. Ct. 1994) (finding that results of DNA testing of decedent’s parents could constitute clear and convincing evidence under former EPTL 4-1.2.(a)(2)(C)). Further, the legislative history accompanying the latest amendments to N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) indicates that results of genetic marker tests will in most cases be dispositive, and makes clear that such tests include tests administered to a close relative. See Memo to A7899.

In this case, the submitted DNA test results established a 99.7% probability that the claimant is the grandchild of E~ and J~. E~ and J~ stated that the NH was their son. In addition, claimant’s mother, J~ , stated that E~ and J~ were the NH’s parents. Thus, it is undisputed that E~ and J~ are the NH’s parents. Based upon the DNA test, it is a near certainty that they are the claimant’s grandparents. Further, although the claimant’s birth certificate leaves her father’s information blank, the NH’s mother, father, and brother each state that the NH told them that his girlfriend, J~ , was pregnant, and he was the father. ^[10] We conclude that the foregoing would be considered clear and convincing evidence of paternity under N.Y. Est. Powers & Trusts Law § 4-1.2 (a)(2)(C).

Finally, the DNA test appears to be reliable. The test at issue was performed by DDC in Ohio, which is accredited by the New York State Department of Health. See http://www.dnacenter.com/accredited-lab.html. The testing was conducted according to currently accepted American Association of Blood Banks Standards for Relationship Testing Laboratories and the results were certified by the laboratory director. In addition, although unreliable testing methods or gaps in the chain of custody can preclude the test results from constituting clear and convincing evidence of paternity, there is no indication of unreliability of gaps in the chain of custody in this case. See In re S~, 768 N.Y.S.2d 272, 275 (N.Y. Surr. Ct. 2003) (holding that the blood should be drawn under strictly controlled laboratory conditions and the chain of custody meticulously documented). A DDC affiliate provided a Chain of Custody form that included the signatures, driver’s licenses, and last four digits of the Social Security Numbers of J~, E~ , and J~. The specimen collector certified that he properly identified the parties, and collected, packaged, and sealed the specimens. He also affirmed under penalty of perjury that no tampering occurred while the specimens were under his control.

As a result, the evidence presented in this case would be sufficient for a New York court to find that claimant could inherit the NH’s personal property as his child under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C).

CONCLUSION

It is our opinion that the claimant is entitled to survivor’s benefits on the NH’s account because, under New York intestacy laws, she could inherit the NH’s personal property as his child.

Stephen P. Conte

Regional Chief Counsel

By:______________

Jeremy A. Linden

Assistant Regional Counsel.

L~ married the NH on July 26, 2003. The NH died on July 10, 2010. The NH was a New York resident. On September 8, 2010, L~ filed a survivor’s claim on behalf of her son, J~, born on September, during the marriage of L~ and the NH. In the application, L~ stated that J~ was not the NH’s child, and that J~ was the result of an affair. She stated that she and the NH were separated when she became pregnant with J~, although they reconciled before J~’s birth. She stated that she did not give J~ the NH’s last name, even though the NH asked her to. There is no father listed on J~’s birth certificate.

Based upon review of New York law and the facts provided, the presumption of legitimacy was not rebutted in this case. The RCC did not believe that sufficient evidence was presented to rebut the presumption that the NH was J~’s father therefore, J~ is entitled to receive Survivor’s Benefits on the NH’s account.

QUESTION PRESENTED

You asked whether J~ is entitled to receive Survivor’s Benefits on the record of the number holder (NH), R~.

OPINION

It is our opinion that the presumption of legitimacy has not been rebutted; therefore, J~ is entitled to receive Survivor’s Benefits on the NH’s account.

BACKGROUND

L~ married the NH on July 26, 2003. The NH died on July 10, 2010. The NH was a New York resident. On September 8, 2010, L~ filed a survivor’s claim on behalf of her son, J~, born on September, during the marriage of L~ and the NH. In the application, L~ stated that J~ was not the NH’s child, and that J~ was the result of an affair. She stated that she and the NH were separated when she became pregnant with J~, although they reconciled before J~’s birth. She stated that she did not give J~ the NH’s last name, even though the NH asked her to. There is no father listed on J~’s birth certificate.

The NH’s brother, R~, gave a telephonic statement indicating that the NH never accepted J~ as his child, and that L~’ pregnancy played a large part in their separation. He stated that L~ and the NH had not been living together for some time prior to the NH’s death. He also stated that the NH had initiated divorce proceedings around 2006. However, R~ stated that L~ had documentation from the courts stating that the divorce was never processed. R~ identified the NH as “divorced” on his death certificate.

DISCUSSION

1. 1. 

   Applicable Law

To qualify for child’s benefits on the earnings record of an insured individual, a claimant must be the “child” of the insured individual. See Social Security Act (Act) 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). “Child” includes the natural child of an insured individual. See 42 U.S.C. § 416(e); 20 C.F.R. § 404.354. The Act provides that, in order to determine whether an applicant is the “child” of a parent, the Commissioner will apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), (b)(1), (4). Therefore, because the NH was domiciled in New York State at the time of his death, New York state law regarding the devolution of intestate personal property applies.

New York’s intestacy law provides that the “issue” of a decedent are eligible to inherit the decedent’s property. N.Y. Est. Powers & Trusts § 4-1.1 (McKinney 2011). State law defines “issue” as descendants in any degree from a common ancestor, including adopted children. N.Y. Est. Powers & Trusts § 1-2.10 (McKinney 2011).

New York law presumes that a child born to a married woman has been fathered by her husband. Matter of F~’s Estate, 44 N.Y. 2d 137, 142 (N.Y. 1978), app. dism’d 439 U.S. 1059 (1979), reh’g den. 440 U.S. 968 (1979). New York courts have described this presumption as “one of the strongest and most persuasive known to the law.” In re F~, 253 N.Y. 1, 7 (1930). The presumption of legitimacy may be rebutted by clear and convincing evidence to the contrary. Will of L~, 657 N.Y.S. 2d 35 (N.Y. App. Div. 1997) (holding that a blood test excluding the husband’s paternity, combined with repeated written declarations by the mother and a divorce decree, was sufficient to rebut the presumption of legitimacy). To be “clear and convincing,” the evidence must be sufficient to show that the application of the presumption of legitimacy under the particular circumstances of the case would be “entirely incompatible with ‘common sense and reason.’” In re Estate of F~, 859 N.Y.S. 2d 902, 902 (N.Y. Sup. 2008) (table) (citations omitted). In F~, the court held that the clear and convincing standard requires evidence establishing that it is “highly probable” that a mother’s husband is not the child’s biological father. Id. (citation omitted).

Such evidence may include non-scientific evidence sufficient to overcome the presumption as wholly incompatible with reason and common sense. In Re Estate of W~, 691 N.Y.S. 2d 878, 881 (N.Y. Surr. 1999). Examples of evidence that is acceptable to overcome the presumption of legitimacy include proof that the spouses did not have access to each other at or around the time of conception, genetic testing establishing that the husband is not the biological father, or proof that the husband was physically incapable of fathering a child. F~ at 902, fn. 1 (citations omitted).

However, with regard to evidence of non-access, New York follows Lord Mansfield’s rule, which prohibits the use of the testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. See State ex rel. H. v. P., 457 N.Y.S. 2d 488, 491 (N.Y. App. Div. 1982); In re Diaz-Albertini’s Estate, 153 N.Y.S. 2d 261, 265 (N.Y. Surr. 1956), aff’d 154 N.Y.S. 2d 422 (N.Y. App. Div. 1956); see also POMS GN 00306.015, GN 00306.025 and GN 00306.026.^[11]

1. 2. 

   Analysis

Based on the evidence you provided, and on our review of New York law, we believe that insufficient evidence has been presented to rebut the presumption of legitimacy. The evidence provided indicates that L~ was married to the NH at the time of J~’s conception, thus creating a presumption under New York state law that J~ is the child of the NH. Because of Lord Mansfield’s Rule, state courts would not accept L~’ testimony as proof that J~ was not the NH’s son. Excluding that testimony, the evidence that J~ was not the child of the NH consists of the absence of a father’s name of J~’s birth certificate, the fact that J~ does not have the NH’s last name, and the statements by R~ that the NH never accepted J~ as his child, and that the NH had initiated divorce proceedings, which were apparently never finalized, in 2006, prior to J~’s birth. We do not believe that this evidence is sufficient to meet the “clear and convincing” standard set forth by New York law. The evidence is unclear as to whether or when the NH and L~ divorced, and whether they were separated at the time of J~’s conception. Without a divorce decree or other more substantial evidence to indicate that the NH did not have access to L~ at the time of the conception, it is unlikely that New York state courts would find the presumption of legitimacy to be rebutted.

New York has created statutory exceptions to this rule for child support and filiation proceedings, neither of which applies here. See Family Court Act, §§ 436, 531.

CONCLUSION

Thus, based upon our review of New York law and the facts you provided to us, we believe that the presumption of legitimacy was not rebutted in this case. As discussed above, we do not believe that sufficient evidence was presented to rebut the presumption that the NH was J~’s father.

Stephen P. Conte

Regional Chief Counsel

Kathrina Lederer

Assistant Regional Counsel.

The claimant is entitled to survivor’s benefits on the NH’s account because, under New York’s intestacy laws, claimant could inherit the NH’s personal property as a child.

QUESTION PRESENTED

Whether D~ (claimant) is entitled to survivor’s benefits as the child of the deceased number holder, S~ (NH).

OPINION

It is our opinion that the claimant is entitled to survivor’s benefits on the NH’s account because, under New York’s intestacy laws, claimant could inherit the NH’s personal property as his child.

BACKGROUND

The NH was receiving Social Security Disability benefits from July 2003 until his death on April 1, 2004. On December 01, 2009, D~ , the claimant’s mother, filed an application for survivor’s benefits on behalf of her son, and alleged that the claimant was the NH’s natural child.

The NH was domiciled and died in Brooklyn, NY. The claimant never filed an application for benefits on the NH’s record during his lifetime.

The claimant provided the following evidence in support of the claim:

• •

  Death Certificate for the NH showing he died April 1, 2004 in the State of New York.

• •

  Birth Certificate from the City of New York showing that the claimant was born January. The space for the father’s name is blank.

• •

  Order of Filiation by Inquest dated March 11, 2009 stating that C~, the wife of the deceased NH, agrees with the allegation that the NH is the father of the claimant. The Order of Filiation adjudged and declared that NH is the father of the claimant.

• •

  DNA testing from Independent Forensics (DNA Testing & Technology) dated November 3, 2009, which states that the claimant cannot be excluded as the half brother of I~. The testing results revealed that the probability that claimant and I~ have the same father or mother is 99.99%. The case number is listed as L-19099. The test results are certified by the laboratory director.

• •

  Statement from the claimant’s mother, D~ , that NH is the father of the claimant and that he would visit the child and give him money at Christmas and on his birthday. D~ further stated that I~ is the son of NH and thus the half-brother of the claimant. She also affirmed that she is not I~ ’s mother.

Additionally, we attempted to obtain the underlying documents or affidavits that were submitted in connection with the Order of Filiation dated March 11, 2009, however, the claimant’s mother stated that she did not have any of the documents concerning the order. Furthermore, the NH’s wife also stated that she had no documents regarding the order, and that she only appeared at the hearing as requested. Thus, it appears that there is no additional evidence pertaining to the Order of Filiation.

On March 1, 2011, we contacted Independent Forensics and who stated that any case number beginning with an “L” is a legal case. And that legal cases have a strict chain of custody for collection of the test samples. Further, Independent Forensics confirmed that samples from the tested individuals would have originated in a certified lab and would not have been self-collected samples.

As part of our review, we also obtained additional SSA records. On July 18, 1991, SSA processed an application for a Social Security card for I~. A copy of the SS-5 shows L~ as I~’s mother and the NH as I~’s father. An “S. ” signed the application and stated that he was I~’s father. S. submitted a Guyanese passport as proof of I~’s age and identity. On November 10, 1998, SSA processed an application for a replacement Social Security card for I~ . A copy of that SS-5 shows that the applicant stated that neither he nor anyone acting on his behalf had ever filed for or received a Social Security number card before. The SS-5 shows L~ as I~’s mother. I~’s father is listed as unknown. The application appears to have been signed by I~. The applicant submitted a Guyanese passport as proof of identity and age. I~’s numident entry dated 7/18/1991 shows L~ as his mother and S~ as his father. I~’s 11/10/1998 numident entry shows L~ as his mother and unknown as his father.

ANALYSIS

The Social Security Act (the Act) requires that a person be the dependent “child” of an insured individual to qualify for surviving child’s benefits. See section 202(d)(1) of the Act; 42 U.S.C. § 402(d)(1). Section 216(h) of the Act provides the analytical framework that the agency must follow to determine whether an individual is the “child” of an insured individual. As relevant here, under section 216(h), a child may be entitled to survivor’s benefits on the earnings record of a deceased insured individual if the child could inherit the insured individual’s personal property as his natural child under the intestacy laws of the state in which the insured individual was domiciled at the time of his death. See section 216(h)(2)(A) of the Act; 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). A child who meets the standard that Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). Accordingly, to be entitled to survivor’s benefits on the NH’s account, the claimant must be able to inherit the NH’s personal property as his natural child under New York State inheritance law.

New York intestacy law specifies that the “issue” of a decedent are eligible to inherit a decedent’s property. N.Y. Est. Powers & Trusts § 4-1.1 (M~ 2011). The law defines “issue” as “descendants in any degree from a common ancestor,” which would include a decedent’s children. N.Y. Est. Powers & Trusts § 1-2.10 (M~ 2011). Further, the term “issue” includes a “non-marital child” who has inheritance rights from his alleged father under certain conditions. N.Y. Est. Powers & Trusts § 4-1.2 (M~ 2010).

N.Y. Est. Powers & Trusts Law § 4-1.2 governs the rights of inheritance by non-marital children. This section was recently amended to revise the standard used for determining inheritance rights of non-marital children. The amending act specifies that it applies to estates of decedents dying on or after the effective date, April 28, 2010. L.2010 c. 64 § 4. Since the NH died on April 1, 2004, for purposes of intestate distribution New York courts would apply the prior version of the law. However, under 20 C.F.R. § 404.355(b)(4), the agency applies the State law that exists at the time of the final decision on the claimant’s application, unless the previous version would be more favorable to the claimant. Since the prior version of N.Y. Est. Powers & Trusts Law § 4-1.2 would be less favorable to the claimant, the version as amended is applied in the following analysis, in accordance with 20 C.F.R. § 404.355(b)(4).

Under N.Y. Est. Powers & Trusts Law § 4-1.2, as amended, a non-marital child may inherit from the father if paternity can be established under either of the following sections: ^[12]

1. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(A): Court Orders Declaring Paternity In New York, non-marital children may inherit from their father when “a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity . . . .” N.Y. Est. Powers & Trusts Law § 4-1.2 (a)(2)(A). In this case, the Family Court of the State of New York issued an Order of Filiation on March 11, 2009, which declared the NH as the biological father of the claimant. However, this order was issued subsequent to the date of death specified in the NH’s death certificate, April 1, 2004. Thus, claimant may not be considered the child of the NH under N.Y. Est. Powers & Trusts Law § 4-1.2 (a)(2)(A). 2. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C): Clear and Convincing Evidence Non-marital children may also inherit from their father when “paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own . . . .” N.Y. Est. Powers & Trusts Law § 4-1.2 (a)(2)(C). This is a disjunctive test: a claimant may establish paternity with clear and convincing evidence of either (1) open and notorious acknowledgment or (2) by the results of a genetic marker test administered to the father (or close relative at any time). See Memorandum in Support of Legislation, New York State Assembly, (Assemb. B. A7899, 233rd Leg. (N.Y. 2010)) (hereinafter Memo to A7899). ^[13]

Since DNA testing confers great persuasive power and is such a complex procedure, the testing must be governed by the highest standards of scientific rigor. Barbara A. W~ v. David WY., 701 N.Y.S.2d 845, 849 (NY. Fam. Ct. 1999). A New York statute allows for automatic admissibility of DNA test results for the alleged father if the evidence was court ordered and it was performed by an authorized laboratory, if the laboratory is authorized by the Commissioner of the New York State Department of Health to conduct DNA testing and the test is certified or authenticated by the head of the laboratory. N.Y.C.P.L.R. 4518(d)-(e); see Barbara A. W~, 701 N.Y.S.2d at 849. It is presumed that DNA testing conducted pursuant to a court order and properly certified complies with the appropriate New York Department of Health complI~ce standards. Id. A DNA test conducted on an alleged father according to the requirements of section 4518(d) and which shows a probability of paternity of at least 95%, establishes a rebuttable presumption of paternity. N.Y.C.P.L.R. 4518(d).

The DNA test results in this case do not meet the standards for a presumption of paternity since the DNA test was not conducted on the alleged father pursuant to a court order. See N.Y. C.P.L.R. 4518(d). Nevertheless, New York state courts have held that such tests can provide clear and convincing evidence of paternity. See Seaton v. County of Suffolk, 912 N.Y.S. 2d 289 (N.Y. App. Div. 2010)(posthumous DNA test showing 99.99% probability that deceased was father of the child constituted clear and convincing proof of paternity under former EPTL 4-1.2(a)(2)(C)); Matter of T~, 769 N.Y.S. 2d 863 (N.Y. Surr. Ct. Dec. 5, 2003) (posthumous DNA test showing 99.98% probability that deceased was child’s father constitutes clear and convincing evidence under former EPTL 4-1.2(a)(2)(C)); Matter of B~, 745 N.Y.S.2d 813 (N.Y. Surr. Ct. 2002) (posthumous DNA test results can constitute clear and convincing evidence under former EPTL 4-1.2(a)(2)(C).

We note that although the DNA testing was not performed on the NH, but rather on the claimant’s alleged half-brother, I~ D~, the biological son of the NH, relevant case law has upheld the use of this method of testing (using the decedent’s collateral living relatives to establish familial relationships.) In re N~, 748 N.Y.S.2d 654, 655 (N.Y. Surr. Ct. 2002) (holding that results of DNA testing of decedent’s identical twin could meet the requirements of former EPTL 4-1.2(a)(2)(C) and (D);^[14] Estate of W~, 707 N.Y.S.2d 774, 778 (N.Y. Surr. Ct. 2000) (finding that results of DNA testing of decedent’s parents could meet the second prong of paternity test of former EPTL 4-1.2(a)(2)(D);; Estate of S~, 612 N.Y.S.2d 756, 757-59 (N.Y. Surr. Ct. 1994) (finding that results of DNA testing of decedent’s parents could constitute clear and convincing evidence under former EPTL 4-1.2.(a)(2)(C)). Further, the legislative history accompanying the latest amendments to N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) indicates that results of genetic marker tests will in most cases be dispositive, and makes clear that these tests include tests administered to a close relative. See Memo to A7899.

In this case, the submitted DNA test results established a 99.99% probability that the claimant and I~ had the same mother or father. The claimant’s mother, D~ , stated that she is not I~’s mother and that I~ is the NH’s biological child. In addition, I~’s numident shows L~ or L~ as his mother. Thus, I~ and the claimant do not have the same mother. Based upon the DNA test, it is a near certainty that they have the same father. Further, although the claimant’s subsequent SSN application lists his father as unknown, claimant’s original application appears to have been made by the NH representing himself as I~’s father. We conclude that these results would be considered clear and convincing evidence of paternity under N.Y. Est. Powers & Trusts Law § 4-1.2 (a)(2)(C).

Finally, the DNA test appears to be reliable. The test at issue was performed by Independent Forensics in Illinois, which is accredited by the New York State Department of Health. See http://www.ifi-test.com/about_accred.php. The testing was conducted according to currently accepted American Association of Blood Banks Standards for Relationship Testing Laboratories and the results were certified by the laboratory director. In addition, although unreliable testing methods or gaps in the chain of custody can preclude the test results from constituting clear and convincing evidence of paternity, there is no indication of unreliability of gaps in the chain of custody in this case. See In re S~s, 768 N.Y.S.2d 272, 275 (N.Y. Surr. Ct. 2003) (holding that the blood should be drawn under strictly controlled laboratory conditions and the chain of custody meticulously documented). A representative of Independent Forensics confirmed that case numbers beginning with “L” are legal cases, with strict chain of custody for collection of samples.

As a result, the evidence presented in this case would be sufficient for a New York court to find that claimant could inherit the NH“s personal property as his child under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C).

CONCLUSION

It is our opinion that the claimant is entitled to survivor’s benefits on the NH’s account because, under New York intestacy laws, he could inherit the NH’s personal property as his child.

Stephen P. Conte

Regional Chief Counsel

Sheena V. Barr

Assistant Regional Counsel.