In this case, we apply the Nevada intestacy law because the DWE was domiciled in Nevada at the time of his death. In applying the state law, Nevada provides that paternity may be established by either a statutory presumption or a preponderance of the evidence and the agency does not require a court determination establishing paternity and would apply the same law and standards that the state court would use. A statutory presumption of paternity would likely apply here. A Nevada court would likely rely on the DNA tests to apply the statutory presumption that the DWE is C1 and C2’s father.

Social Security Ruling (SSR) 06-02p provides that, if another person (in this case, C3) is determined to be the insured’s natural child under section 216(h)(3) of the Act, the agency may consider a claimant’s (C1 and C2) biological relationship with the natural child for purposes of determining whether the claimant is also the natural child of the insured individual under section 216(h)(2)(A).  C3 qualifies as the DWE’s natural child under section 216(h)(3)(C)(i) of the Act and under the Nevada intestacy law, C1 and C2 can demonstrate that the DWE was their natural father where DNA evidence indicates that they share a paternal relative with C3, the DWE’s recognized child.

Given that genetic testing established a high likelihood that C1, C2, and C3 were fathered by the same person, and the agency previously found that C3 was the natural child of the DWE, it follows that C1 and C2 are also the DWE’s children.  Such a finding is consistent with the application of SSR 06-02p and the requirements under Nevada law for establishing a parent-child relationship.  C1 and C2 are the DWE’s natural children under section 216(h)(2)(A) and they are deemed dependent on him and are therefore entitled to survivor’s benefits on the DWE’s earnings record.

QUESTION

You asked whether a parent-child relationship existed between Victor , the deceased wage earner (DWE), and Claimants Gael (C1) and Julian (C2) for purposes of determining entitlement to survivors’ insurance benefits, where DNA evidence indicates that C1 and C2 are half siblings of Ulysses (C3), the DWE’s recognized natural child.

SHORT ANSWER

Yes. Under Nevada intestacy law, C1 and C2 can demonstrate that the DWE was their natural father where DNA evidence indicates that they share a paternal relative with C3, the DWE’s recognized child.

SUMMARY OF EVIDENCE

The deceased wage earner (DWE), Victor, was born on June in Mexico City, Mexico. The DWE resided in Henderson, Nevada, at the time of his death on October 18, 2012. He died from liver failure/cirrhosis. The death certificate states that the DWE was never married. The DWE’s Nevada Debit Card The DWE received unemployment insurance payments on a Nevada Debit Card, which is the state’s mechanism for delivering unemployment payments. See Frequently Asked Questions About the New Nevada Visa Debit Card, available at http://www.ui.nvdetr.org/documents/NV_FAQ_v5.pdf (last accessed Aug. 20, 2013).

Statements indicate that the DWE lived in Nevada from at least July 2012 until his death in October 2012.

Ulysses (C3)

Ulysses, C3, was born on December in Salinas, California. In the December 7, 2012 Numident printout submitted with this opinion request, the father’s name is listed as “unknown.” On these same Numident printouts, his mother’s name is listed as Tina ,Ubertina and Andrea. 

The mother’s Numident reflects that she used multiple names and changed her name to Andrea in 2006. Agency records and Andrea’s birth certificate reflect that Andrea was born on February in McAllen, Texas as Ubertina Sandoval. In the course of C1 and C2’s application for benefits, Andrea submitted a copy of her Texas driver’s license with a consistent date of birth.  She also submitted an order from the Superior Court of the State of California, County of Monterey, documenting her name change in 1992.   

Andrea brought a paternity and child support action against the DWE. C3 is identified as “Ulysses” in the court document. The field office reported that Andrea stated that she obtained a court order changing C3’s name from Ulysses to Ulysses. Andrea has not presented a court order reflecting the name change. Given the timing of the Acknowledgment, it is more likely that C3 was born Ulysses and Andrea changed his name to Ulysses after the Acknowledgment.  In a Stipulation and Order Re: Paternity Custody Visitation and Support (Acknowledgment) filed with the Superior Court of the State of California, County of Monterey, Salinas Division, the DWE acknowledged that he was C3’s biological father.  The DWE agreed to pay monthly child support beginning January 1, 1996, provide health insurance for C3 through the DWE’s employer at all times, and have reasonable visitation rights. The DWE and Andrea signed the Acknowledgment on August 20, 1997. The California court signed and adopted the terms of the stipulation as the court’s order on July 6, 1998.

After the DWE’s death, C3’s mother applied for survivor insurance benefits on his behalf. The agency approved the claim based on the California court order.    

Gael (C1) and Julian (C2)

Agency records and the birth certificate for Julian, C2, show that he was born on July in San Antonio, Texas to America (mother); the father’s name is blank. America’s birthdate is listed as December 14, 1975 in Mexico, and her residence at the time of the birth was Helotes, Texas. America also submitted a copy of her Texas driver’s license reflecting the same date of birth as C2’s birth certificate.

Agency records and the birth certificate of Gael, C1, show that he was born on August in San Antonio, Texas to America; the father’s name is blank. America’s birthdate is listed as December 14, 1975 in Mexico, and her residence at the time of the birth was Helotes, Texas. 

America applied for survivor insurance benefits for C1 and C2 on the DWE’s earnings record. As evidence of paternity, America presented reports from the DNA Reference Laboratory. The laboratory took DNA samples from C1, C2, and C3 on November 9, 2012 and from America on November 21, 2012. The laboratory found that the probability that C1 and C3 were biological half siblings was 99.063% and the probability that C2 and C3 were biological half siblings was 99.440%.  The laboratory indicated that probabilities of 96.77% and higher are strongly indicative of a sibling relationship. In addition, the probability that America was the biological mother of C1 was 99.994%, and the probability that America was the biological mother of C2 was 99.997%. Finally, the laboratory concluded that the probability that C1 and C2 were biological full siblings was 99.996%. 

DNA Reference Laboratory is an American Association of Blood Banks (AABB) Accredited Relationship (DNA) Testing Facility. See AABB Accredited Relationship (DNA) Testing Facilities, available at http://www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx (last visited Aug. 19, 2013). Correspondence from the Alameda County Department of Child Support Services (DCSS) in Pleasanton, California indicates that the DWE fathered another child with custodial parent Patricia Camacho-Nieves and that he owed child support pursuant to court order.  DCSS sent the DWE correspondence on April 3, 2012 to an address in Henderson, Nevada, on April 16, 2012 to an address in San Antonio, Texas, and on October 1, 2012 to a different address in Henderson, Nevada.  It is unknown whether an application for survivor benefits for this child has been filed; however, such an application could impact the amount of benefits payable to C1, C2, and C3.

Evidence of Support

On July 31, 2013, the Texas field office collected additional information from America that clarified the relationship between the DWE, America, Andrea, and the three children. The field office reported that America and Andrea typically come into the office together. They each presented a Texas driver’s license as identification.

America stated that she and Andrea are not blood relatives, but they are in a relationship and live together. America authorized the agency to release information to Andrea, explaining that they “are both mothers of [C1 and C2] and are both working on his case.”

Documents that America presented to the agency in support of the survivor benefits claims reflect that America and Andrea shared at least two addresses in Helotes, Texas. Further research on LEXIS/NEXIS corroborated this evidence and showed that America and Andrea had seven common addresses in California and Texas. This research also showed that the DWE shared two addresses in California and Texas with both women.

In Form SSA-795, America stated that the DWE visited C1 and C2 twice per year and that he lived with her, C1, and C2 from November 2011 to June 2012. America stated that the DWE was not present for the birth of C1 or C2, but she and the DWE gave C1 and C2 “Sandoval” as a last name so that they would have the same last name as C3. America stated that she did not request child support from the DWE, but she stated that the DWE paid for utilities for her, C1, and C2. America submitted copies of the DWE’s Nevada Debit Card statements from July to October 2012 reflecting payments to CPS Energy CPS energy serves the San Antonio area. See About CPS Energy, http://www.cpsenergy.com/About_CPS_Energy/ (last accessed Aug. 20, 2013).

and the San Antonio Water System. America also annotated expenses for family Halloween costumes and airfare to California on the statements. The airfare charge cleared the DWE’s account two days after his death. 

On two SSA-2519 forms (Child Relationship Statement), America stated that the DWE told Andrea that he was the biological father of C1 and C2. America answered negatively to the remainder of the questions in section 3 regarding the DWE’s acknowledgement and support of C1 and C2.

America presented a March 1, 2013 letter addressed to America and Andrea from the Monterey Culinary Pension Fund. The letter explained that the checks were “payable to the children of the deceased Victor.” America enclosed copies of checks in the amount of $3,255.39 payable to C1 and C2, in the care of America. 

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual who dies fully or currently insured shall be entitled to child insurance benefits. Social Security Act (Act) § 202(d)(1), 42 U.S.C. § 402(d)(1).  However, to receive child insurance benefits, the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual at the time of his death. Id.; 20 C.F.R. § 404.350 (2012). These requirements support the Act’s goal of protecting dependents from the loss of the insured’s earnings and support. See Astrue v. Capato, 566 U.S. ___, 132 S. Ct. 2021, 2032 (2012) (quoting Califano v. Jobst, 434 U.S. 47, 52 (1997)) (recognizing that “the Act’s driving objective” was to “‘provide … dependent members of [a wage earner’s] family with protection against the hardship occasioned by [the] loss of [the insured’s] earnings.’”).

Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Act § 216(e)(1), 42 U.S.C. § 416(e)(1). Section 216(h) of the Act further elaborates that “[i]n determining whether an applicant is the child … of a fully or currently insured individual…, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate Intestate (or intestacy law) refers to the succession of property owned by a person who died without a valid will, which is governed by state statutes. Black’s Law Dictionary 840 (8th ed. 2004).

personal property … by the courts of the State in which [the insured individual] was domiciled at the time of his death.” Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); Capato, 132 S. Ct. at 2033 (explaining that section 416(h)(2)(A) “completes the definition of ‘child’ [in] § 416(e)(1)”). A claimant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent on the insured individual. 20 C.F.R. § 404.361(a) ( “If you are the insured’s natural child, as defined in § 404.355, you are considered dependent on him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life”); Capato, 132 S. Ct. at 2032-33 (explaining that Congress substituted “state intestacy law as a workable solution for burdensome case-by-base determinations of whether the child was, in fact, dependent on her father’s earnings”).

 Here, we apply Nevada intestacy law because the DWE was domiciled in Nevada at the time of his death. See 20 C.F.R. §§ 404.355(b)(1), (4). In applying state law, the agency does not require a court determination establishing paternity but instead apply the same law and standards that the state court would use. 20 C.F.R. § 404.355(b)(1)-(2).

Social Security Ruling (SSR) 06-02p provides that, if another person (in this case, C3) is determined to be the insured’s natural child under section 216(h)(3) of the Act, the agency may consider a claimant’s (C1 and C2) biological relationship with the natural child for purposes of determining whether the claimant is also the natural child of the insured individual under section 216(h)(2)(A).  SSR 06-02p.  The agency will apply the intestacy law of the State where the insured was domiciled at the time of his death to determine whether DNA testing on the claimant and the natural child provides sufficient evidence to conclude that the claimant is also the insured’s child. Id.

In this case, C3 qualifies as the DWE’s natural child under section 216(h)(3)(C)(i) of the Act. By signing the Acknowledgment and agreeing to pay child support, the DWE acknowledged in writing that C3 was his child; further, a court decreed him to be C3’s father and ordered him to contribute to C3’s support. See Act § 216(h)(3)(C)(i) (requiring one of these types of evidence prior to the DWE’s death to show parentage), 42 U.S.C. § 416(h)(3)(C)(i).

Accordingly, SSR 06-02p provides that the agency may apply Nevada intestacy law to determine whether C1 and C2 are also the natural children of the DWE given the DNA evidence indicating that C1 and C2 share a father with C3 in addition to other evidence regarding C1 and C2’s relationship with the DWE. See SSR 06-02p. 

Nevada Law

Under Nevada intestacy laws, if a deceased individual leaves children but no spouse, the estate is shared equally among the children. Nev. Rev. Stat. § 134.090. A child is defined as “a person entitled to take as a child by intestate succession from the parent whose relationship is involved.” Nev. Rev. Stat. § 132.055. A parent-child relationship is defined in Chapter 126 of the Nevada Revised Statutes; the relationship is not dependent on the marital status of the parents. Nev. Rev. Stat. § 126.031(1). 

Nevada law provides that paternity may be established by either a statutory presumption or a preponderance of the evidence. A statutory presumption of paternity would likely apply here; in addition, paternity is established by at least a preponderance of evidence given the results of the DNA testing. Finally, Nevada law includes equitable considerations such as the state’s desire that a child have financial support from her parents.

Presumptions of Paternity

Nevada law applies a presumption that a man is the natural father of a child in the following circumstances:

1. 1. 

   The child was born during the father’s marriage to the natural mother, or within 285 days after the marriage is terminated;

2. 2. 

   The father was cohabitating with the natural mother for at least 6 months before the period of conception and through the period of conception;

3. 3. 

   The father receives the child into his home while the child is under age 18 and openly holds out the child as his natural child; or

4. 4. 

   Blood tests or genetic identification testing pursuant to Nev. Rev. Stat. § 126.121 show a probability of 99 percent or more that he is the father. As discussed in the text, below, Nev. Rev. Stat. § 126.121 provides for genetic testing for the purpose of actions to determine paternity. Unless a party files written objections to the blood test results, they are admissible as evidence of paternity without further proof of authenticity or accuracy.  Nev. Rev. Stat. § 126.121; POMS GN 00306.555(A)(1)(g).

5. 5. 

   Nev. Rev. Stat. § 126.051 (emphasis added); see Program Operations Manual Support (POMS) GN 00306.555(A)(1)(a),(b), (e) & (g) (agency guidance on Nevada intestacy laws). Alternatively, a paternal relationship may be established in Nevada through: (1) voluntary acknowledgement of paternity under Nev. Rev. Stat. § 440.283 (declaration to the State Board of Health); (2) in a court action to determine paternity in which the child, natural mother, and alleged father are parties (Nev. Rev. Stat. §§ 126.053, 126.071, 126.101, 440.283); (3) in an action for child support (Nev. Rev. Stat. §§ 125B.150, 425.382–425.3852); (4) or under the Uniform Interstate Family Support Act (or similar law) (Nev. Rev. Stat. § 130.701). Nev. Rev. Stat. § 126.041(2). These provisions are inapplicable to these claims. 

While several of the presumptions of paternity are rebuttable, since October 1, 2007 the presumption created by genetic testing is conclusive unless it is shown that the presumed father had an identical sibling who may be the father. Nev. Rev. Stat. § 126.051; cf. Love v. Love, 114 Nev. 572, 578 (Nev. 1998) (relying on prior version of § 126.051 to conclude that legislature had intended “to allow non-biological factors to become critical in a paternity determination”).  Where there are conflicting non-conclusive presumptions, the court must determine which presumption “is founded on the weightier considerations of policy and logic.” Nev. Rev. Stat. § 126.051(3); Love, 114 Nev. at 578.

In this case, genetic testing was performed on samples from C1, C2, C3, and the mother of C1 and C2 (America); no tests were performed on the DWE or the mother of C3 (Andrea). We have no indication that the DWE had a twin brother, although he has male siblings. The conclusive presumption of paternity in Nev. Rev. Stat. § 126.051(2) applies to “tests [that] show a probability of 99 percent or more that [the DWE] is the father.” Nev. Rev. Stat. § 126.051(2). Nevada law allows for genetic testing on the “mother, child, alleged father or any other person so involved” in a civil paternity action. Nev. Rev. Stat. § 126.121(1). However, we have found no authority to indicate whether a Nevada court would accept DNA tests performed on the sibling and mother of C1 and C2 as establishing a presumption of paternity. 

Nonetheless, this evidence may support a presumption of paternity, particularly given that section 126.051(2) incorporates, genetic tests pursuant section 126.121. See Nev. Rev. Stat. § 126.051(2). As testing pursuant to section 126.121 includes tests of the mother and “any other person so involved,” such as the siblings here, the genetic tests are evidence establishing a presumption that the DWE is the father of C1 and C2. 

Here, the genetic tests indicated that C1 and C2 were full siblings (99.996% probability) and that America was the biological mother of C1 (99.994% probability) and C2 (99.997% probability). The tests also indicated that C3 was the half sibling of C1 (99.063% probability) and C2 (99.440% probability). 

Although we do not have DNA confirmation that Andrea is C3’s biological mother, this relationship is confirmed by agency records, C3’s birth certificate, and the Acknowledgement. Further, the available evidence indicates that Andrea and America are separate individuals: they appeared together at the field office, presented unique driver’s licenses, and the Numident confirms different dates of birth and parentage. We have no basis to doubt America’s statement that she is in a relationship with Andrea and that the two women raise the three children as a family. The possibility that the children are half siblings because they share a mother, as opposed to a father, is therefore remote.  Thus, the DNA evidence indicates that the DWE is the father of C1, C2, and C3. Accordingly, a Nevada court would likely rely on the DNA tests to apply the statutory presumption that the DWE is C1 and C2’s father.

Paternity Shown By a Preponderance of Evidence

In addition to the statutory presumptions, Nevada permits paternity to be proved by a preponderance of evidence in a civil paternity action. See Nev. Rev. Stat. §§ 126.071–126.223; Rivera v. Minnich, 483 U.S. 574, 579-582 (1987) (holding that due process is satisfied by the preponderance of evidence standard in paternity proceedings); Mack v. Ashlock, 112 Nev. 1062, 1066 (1996) (standard of proof in a civil matter is a preponderance of evidence); POMS GN 00306.555(B); see also 20 C.F.R. § 404.355(b)(1) (applying standard of proof that state court would use). 

Relevant evidence in a paternity action includes:

1. 1. 

   Evidence of sexual intercourse between the mother and alleged father at any possible time of conception;

2. 2. 

   An expert’s opinion concerning the statistical probability of the alleged father’s paternity based on the duration of the mother’s pregnancy;

3. 3. 

   The results of test for the typing of blood or genetic identification that is of a type that is acknowledged as reliable by an organization approved by the Secretary of Health and Human Services and performed by a laboratory which is accredited by such an organization;

4. 4. 

   Medical or anthropological evidence;

5. 5. 

   Bills or receipts for the costs of medical care during pregnancy or the birth of the child; and

6. 6. 

   All other evidence relevant to the issue of paternity.

Nev. Rev. Stat. § 126.131 (emphasis added); GN 00306.555(C)(1)–(5).

Even if the conclusive presumption does not apply to genetic tests of siblings, at least a preponderance of evidence indicates that the DWE was C1 and C2’s father under Nevada law given the DNA tests and other evidence of support.  As stated above, the DNA evidence shows that C1 and C2 are C3’s half siblings and that the three children share a common father (the DWE). Moreover, the reliability requirement in the Nevada Revised Statues for genetic testing is satisfied.  See Nev. Rev. Stat. § 126.131(c).  AABB accredited the lab that performed the tests, and the AABB is approved by the Department of Health and Human Services as an accreditation body for genetic testing in paternity actions. See Information Memorandum: Accreditation of Genetic Testing Labs, U.S. DHHS, Office of Child Support Enforcement, available at http://www.acf.hhs.gov/programs/cse/pol/IM/1997/im-9703.htm. 

Although the DNA evidence would be sufficient to find paternity by a preponderance of evidence under the statute, America also presented credible and uncontradicted evidence that the DWE held himself out as C1 and C2’s father and supported the children. For example, the DWE visited the children regularly, told Andrea that he fathered C1 and C2, and supported the children by making utility payments for their residence in Texas while the DWE lived in Nevada.  In addition, the Monterey Culinary Pension Fund paid C1 and C2 part of the proceeds of the DWE’s annuity benefit account. 

Furthermore, while not directly indicative of paternity, Andrea willingly participated in America’s claim on behalf of C1 and C2; her participation was not in the best interest of C3, her biological child, because granting survivor benefits to C1 and C2 will impact the amount of monthly benefit paid to C3. Andrea is thus the party most likely to argue against allowing the claim, and she has not done so here.

Finally, Nevada law protects the right of children to support from their parents. See Love, 114 Nev. at 578 (recognizing the legislature’s primary intent in creating presumptions of paternity in section 126.051 was to ensure that children were supported by their parents); Weaks v. Mounter, 88 Nev. 118, 123 (Nev. 1972) (removing requirement that father acknowledge paternity in a formal writing in order for illegitimate child to bring wrongful death suit and recognizing that “[t]he illegitimate child suffers serious pecuniary loss because the right of support from the deceased father is denied” in such a way “that would punish the child and inflict problems upon the community”). Under Nevada law, a parent’s duty to support a child exists at birth, even if the duty is not enforced, and continues until “lifted, excused, or extinguished by a court of law.” Lara v. County of Yolo on Behalf of Constancio, 104 Nev. 705, 707-08 (1988). These additional considerations of equity further indicate that a Nevada court would determine that C1 and C2 are the DWE’s children.

In short, the DNA evidence and other evidence of DWE’s contribution to C1 and C2’s support constitute at least a preponderance of the evidence under Nevada law to find that C1 and C2 are the DWE’s children. See Chambers v. Sanderson, 107 Nev. 846 (1991) (finding paternity where blood tests indicated 98% chance of paternity and mother provided affidavit stating she and alleged father had sexual intercourse during the probable period of conception); Lara, 104 Nev. at 708 (“Modern medical tests [such as blood tests] are quite accurate [and] can readily provide the court with sufficient evidence to determine paternity.”). 

Conclusion

Given that genetic testing established a high likelihood that C1, C2, and C3 were fathered by the same person, and the agency previously found that C3 was the natural child of the DWE, it follows that C1 and C2 are also the DWE’s children. Such a finding is consistent with the application of SSR 06-02p and the requirements under Nevada law for establishing a parent-child relationship. Because they are the DWE’s natural children under section 216(h)(2)(A), they are deemed dependent on him and are therefore entitled to survivor’s benefits on the DWE’s earnings record.

DNA test results indicate a 99.96% probability that the NH is the child's father. Since Nevada law presumes a man to be the natural father of a child, and therefore provides that the child can inherit from the father, if DNA test results show a probability of 99% or more, the NH would be presumed to be the child's father. There is no evidence to rebut this presumption.

ISSUE

You have asked whether there is sufficient evidence to establish a parent-child relationship, under Nevada law, between Claimant Dylan G~ and the WE James G~.

SUMMARY

Yes. Under Nevada law, a DNA test is acceptable evidence to establish a parent-child relationship.

Notice to adverse party is required prior to granting of Claimant's claim.

SUMMARY OF EVIDENCE

You told us that Tracy L. S~ was not married to James G~ ("the WE") at the time that Dylan G~ ("Claimant") was born. You also told us that the WE died while domiciled in Nevada.

According to a Missouri birth certification filed on May 6, 1993, Claimant was born in Missouri on March 29, 1993. The certification did not name the father.

On September 10, 1993, Ms. S~ filed a Petition for Declaration of Paternity and Order of Support and Reimbursement (in Missouri state court). On May 11, 1998, Ms. S~'s petition was voluntarily dismissed before it was decided; there was no state court declaration of paternity.

A March 18, 1998, DNA test showed that the WE was Claimant's father, with a 99.96% probability. The documents accompanying the results show that WE signed the custody documents, that he was photographed, and that he was required to show proof of identity at the time the DNA sample was taken. There is no reason to believe that the sample was obtained from anyone other than WE.

WE died while domiciled in Nevada on July 9, 1999. On February 29, 2000, Ms. S~ applied for child's insurance benefits on behalf of Claimant, based on the account of the WE. Ms. S~ stated that the WE was deceased. In an accompanying Child Relationship Form, Ms. S~ stated that the WE had never been decreed by a court to be Claimant's father, nor had the WE been ordered to pay child support. She said that the WE had told her family and friends that he was the father, although no names were provided.

ANALYSIS

A. SOCIAL SECURITY REGULATIONS

The Commissioner's regulations on applying state law, effective November 27, 1998, apply to this claim. See 20 C.F.R. sections 404.354 and 404.355 (1999). Under these regulations, a "natural child" of unmarried parents may be eligible for benefits if she could inherit the insured's personal property under state intestacy law. See 20 C.F.R. section 404.355(a) (1999). If state intestacy law requires a court order of paternity, SSA will not require a claimant to obtain a state court order, but will evaluate the evidence and apply the state's standard of proof to determine if the claimant can establish a right to intestate succession. 20 C.F.R. section 404.355 (1999). In addition, if the insured is deceased, SSA applies the state's current law at the time of adjudication, or the version of the law at any time since the insured's death, whichever is most favorable to the claimant. 20 C.F.R. section 404.355(b)(4) (1999).

Here, the WE died while domiciled in Nevada. If Claimant could inherit the WE's personal property under Nevada intestacy law, he would establish that he is eligible for child's benefits as the WE's "natural child" under the Regulations. See 20 C.F.R. section 404.355(a)(1) (1999).

B. NEVADA LAW

Under Nevada intestacy law, a child may inherit a parent's personal property. See Nev. Rev. Stat. Ann. section 134.040 et. seq.. (Michie 1999). A parent-child relationship can be established by a substantive "presumption of paternity" or other evidence of paternity that is submitted in a court action to determine paternity. See Nev. Rev. Stat. Ann. section 126.051 (Michie 1999). A father-child relationship may be presumed if genetic testing shows "a probability of 99 percent or more that he is the father." See Nev. Rev. Stat. Ann. sections 126.051(1)(e), 126.121 (Michie 1999); see also Love v. Love, 959 P.2d 523, 525-527 (Nev. 1998) (where father's DNA testing was considered as establishing presumption of paternity). Such a presumption may be rebutted only by "clear and convincing evidence." See Nev. Rev. Stat. Ann. section 126.051(3) (Michie 1999). Nevada law does not impose different standards based on whether the paternity claim is made prior to or after the alleged father's death. Here, the DNA test indicated a 99.96% probability that the WE was Claimant's father. Since Nevada law requires a probability of 99% or more, the WE would be presumed to be Claimant's father. There is no evidence to rebut this presumption.

CONCLUSION

Since the DNA test established a presumption that the WE was Claimant's father, Claimant could inherit the WE's personal property under Nevada law. Consequently, under Social Security regulations, Claimant may be considered the WE's "natural child" for the purposes of claiming benefits on the WE's account.

NOTE REGARDING DUE PROCESS TO POSSIBLE ADVERSE PARTY: WE has other children receiving benefits on his account. If Claimant's claim is granted, his award will adversely impact the benefit amount of the other children. Therefore, Ms. Julie A~ (on behalf of Allene and James G~) must be given an opportunity to submit evidence to disestablish WE's paternity of Claimant. (It appears that this requirement has been met by notice dated March 3, 2000.)

Under Nevada law, a presumption of paternity can be established by blood tests or tests for genetic identification that show a probability of 99% or more that the man is the father. However, even if the evidence does not necessarily establish a "presumption of paternity," an adjudicator may nevertheless determine that the evidence is sufficient to show paternity. The standard of proof is a preponderance of the evidence. DNA test results showing a 99% probability that the NH's mother is the claimant's paternal grandmother, in addition to evidence that the claimant's mother and the NH lived together around the time of conception, and the alleged grandmother's statement that the NH believed he was the claimant's father, amount to a preponderance of evidence to indicate paternity under Nevada law.

INTRODUCTION

You forwarded this claim file to our office to consider the application of Nevada intestacy law to this case. In March 1998 the claimant's mother filed an application for child's insurance benefits on behalf of her son, the claimant, on the Social Security account of the deceased wage earner. ^[1] The claim was denied in May 1998 and is pending reconsideration.

You raised two issues: (1) whether Nevada law would accept as sufficient evidence of paternity DNA test results showing 99.99% probability that the wage earner's mother is the child's paternal grandmother, and (2) if so, whether the March 1998 DNA results would have "retroactive effect" on the child's entitlement rights.

Nevada law would accept the DNA test results establishing grandparentage as acceptable evidence of paternity, for the reasons explained below. The claimant is entitled to survivor's benefits based on the March 16, 1998 application, with the standard period of retroactivity on a survivor's claim beginning no earlier than October 9, 1997, the date of the wage earner's death. In addition, Social Security must notify the two other current child beneficiaries on the wage earner's account of the allowance of the above-referenced claim because their benefits may be adversely affected.

PROCEDURAL BACKGROUND AND THE EVIDENCE^[2]

According to the wage earner's mother, and the claimant's maternal aunt, the wage earner and the claimant's mother lived together in Texas in 1995. The wage earner's mother stated that the wage earner moved to Las Vegas in November 1995. She claims that the wage earner believed that the claimant's mother was pregnant with his child and that he wanted to marry her. The wage earner's mother further stated that the claimant's mother visited the wage earner in Nevada for about three months in the beginning of 1996. On July 23, 1996, the claimant was born in Texas.

In December 1996, the wage earner filed an application for disability benefits. Social Security granted his claim, finding him disabled due to the HIV infection as of December 1996. He became entitled to benefits in May 1997. The wage earner's MBR record indicates that two children received auxiliary benefits as his natural children.

On October 9, 1997, the wage earner died in Nevada. The MBR record indicates that the two children's entitlement to survivor's benefits began as of October 1997.

In March 1998, the claimant's mother filed an application for survivor's benefits for the claimant as the natural child of the wage earner. In support of the claim, she submitted a March 6, 1998 report and letter from the medical director of the HLA laboratory of Methodist Hospital in Houston, Texas. The physician reported that he had tested blood samples from the claimant I s mother, the claimant, and. the wage earner I s mother. He explained that, based on the results of the blood and DNA tests, he calculated a 99.99% probability that the wage earner's mother is the claimant's paternal grandmother.

In addition to the statements from the wage earner's mother and the claimant's maternal aunt that the wage earner and the claimant's mother lived together in Texas in 1995, the evidence included an additional statement by the wage earner's mother and documents indicating that the wage earner's brother was incarcerated from 1993 to May 1998.

ANALYSIS

Under Nevada law, a parent-child relationship can be established by a substantive "presumption of paternity," or other evidence of paternity that is submitted in a court action to determine paternity (Nevada Revised Statute S 126.051; § 126.131). A presumption of paternity can be established by blood tests or tests for genetic identification that show a probability of 99 percent or more that the man is the father (N.R.S. § . 126.051.1(e)). However, even if the evidence does not necessarily establish a "presumption of paternity", an adjudicator may nevertheless determine that the evidence is sufficient to show paternity (N.R.S. § 126.131). An action to determine paternity in a Nevada court is a civil proceeding (N.R.S. § 126.151). The standard of proof therefore is a preponderance of the evidence. Mack v. Ashlock, 112 Nev. 1062, 1066 (1996); Rivera v. Minnich, 483 U.S. 574 (1987).

You asked whether Nevada law would accept as proof of paternity the-DNA test results showing that the wage earner's mother is the claimant's paternal grandmother. We have found no authority to indicate whether a Nevada court would accept these results as establishing the presumption. Considering that the statute allows blood tests to be done on "any other person so involved" in the paternity proceeding, which would include the alleged ,paternal grandmother, a strong argument could be made that this evidence supports a presumption of paternity (N.R.S. § 126.121). Even though Nevada's genetic test presumption is based on the probability calculation of paternity, not grand parentage, a portion of the Methodist Hospital report stated that the "relative chance of paternity, assuming a 50% prior chance, is 99.99%" (See Page two of the Methodist Hospital report).

Nevertheless, as stated above, even when a presumption is not clearly established, an adjudicator in Nevada may consider other evidence relating to paternity. He may consider evidence of sexual intercourse between the mother and alleged father at any possible time of conception (N.R.S. § 126.131.1 (a)). He may also consider the results of any tests for the typing of blood or taking of specimens for genetic identification that is (1) of a type acknowledged as reliable by an organization approved by the secretary of Health and Human Services, and (2) performed by a laboratory that is accredited by such an organization (N.R.S. § 126.131.1(c)). The adjudicator may also consider "all other evidence relevant to the issue of paternity of the child" § 126.131.1(f)).

In this case, there is at least a preponderance of evidence to indicate paternity under Nevada law. There is evidence that the claimant's mother and the wage earner lived together around the time of conception. The alleged grandmother's statement that the wage earner believed he was the father of the claimant might be considered evidence that he and the claimant's mother had sexual intercourse at the time. The genetic tests show a 99.99% probability that the wage earner's mother is the claimant's paternal grandmother. Assuming that the wage earner has only one brother, the significance of this calculation of grand parentage is further strengthened by the fact that the brother was incarcerated during the time the claimant was conceived. All of these factors together support a determination of paternity. - Chambers v. Sanderson, 107 Nev. 846 (1991) (finding of paternity where blood tests indicated 99% chance of paternity and mother provided affidavit stating she and alleged father had sexual intercourse during the probable period of conception).

CONCLUSION

Because there is sufficient evidence under Nevada law to show paternity, the claimant should be granted benefits based on the March 1998 application, with the appropriate retroactive benefits beginning no earlier than October 9, 1997, the date of the wage earner's death. ^[3]

Under Nevada law, a presumption of paternity can be established by blood tests or tests for genetic identification that show a probability of 99 percent or more that the man is the father. If such evidence does not clearly establish a "presumption of paternity", an adjudicator may nevertheless determine that such evidence and any other relevant evidence is sufficient to show paternity. The standard of proof is preponderance.

Therefore, while DNA test results showing that the NH's mother is the claimant's paternal grandmother may not clearly support a presumption of paternity, an adjudicator may determine that they are sufficient to show paternity based on a preponderance of the evidence standard.

Correction: The opinion limits retroactivity to no earlier than death. However, since the child has the status of child since birth, the child's application has 12 months retroactivity, and the child was alive throughout the retroactive life of the application, full retroactivity would be limited only if any retroactive month predated the NH's disability entitlement. Therefore, since the NH first became entitled to disability in 5/97, retroactivity on the child's 3/98 application would be limited to 5/97. (In this case, the family maximum distribution to the other children on the record who filed in 4/97 was protected until 3/98. However, in 10/97 some residual survivor benefits were payable to the legitimated child.)

INTRODUCTION

You forwarded this claim file to our office to consider the application of Nevada intestacy law to this case. In March 1998, the claimant's mother filed an application for child's insurance benefits on behalf of her son, the claimant, on the Social Security account of the deceased wage earner. ^[4] The claim was denied in May 1998 and is pending reconsideration.

You raised two issues: (1) whether Nevada law would accept as sufficient evidence of paternity DNA test results showing 99.99% probability that the wage earner's mother is the child's paternal grandmother, and (2) if so, whether the March 1998 DNA results would have "retroactive effect" on the child's entitlement rights.

Nevada law would accept the DNA test results establishing grandparentage as acceptable evidence of paternity, for the reasons explained below. The claimant is entitled to survivor's benefits based on the March 16, 1998 application, with the standard period of retroactivity on a survivor's claim beginning no earlier than October 9, 1997, the date of the wage earner's death. In addition, Social Security must notify the two other current child beneficiaries on the wage earner's account of the allowance of the above-referenced claim because their benefits may be adversely affected.

PROCEDURAL BACKGROUND AND THE EVIDENCE^[5]

According to the wage earner's mother, and the claimant's maternal aunt, the wage earner and the claimant's mother lived together in Texas in 1995. The wage earner's mother stated that the wage earner moved to Las Vegas in November 1995. She claims that the wage earner believed that the claimant's mother was pregnant with his child and that he wanted to marry her. The wage earner's mother further stated that the claimant's mother visited the wage earner in Nevada for about three months in the beginning of 1996. On July 23, 1996, the claimant was born in Texas.

In December 1996, the wage earner filed an application for disability benefits. Social Security granted his claim, finding him disabled due to the HIV infection as of December 1996. He became entitled to benefits in May 1997. The wage earner's MBR record indicates that two children received auxiliary benefits as his natural children.

On October 9, 1997, the wage earner died in Nevada. The MBR record indicates that the two children's entitlement to survivor's benefits began as of October 1997.

In March 1998, the claimant's mother filed an application survivor's benefits for the claimant as the natural child of the wage earner. In support of the claim, she submitted a March 6, 1998 report and letter from the medical director of the HLA laboratory of Methodist Hospital in Houston, Texas. The physician reported that he had tested blood samples from the claimant's mother, the claimant, and the wage earner's mother. He explained that, based on the results of the blood and DNA tests, he calculated a 99.99% probability that the wage earner's mother is the claimant's paternal grandmother.

In addition to the statements from the wage earner's mother and the claimant's maternal aunt that the wage earner and the claimant's mother lived together in Texas in 1995, the evidence included an additional statement by the wage earner's mother and documents indicating that the wage earner's brother was incarcerated from 1993 to May 1998.

ANALYSIS

Under Nevada law, a parent-child relationship can be established by a substantive "presumption of paternity," or other evidence of paternity that is submitted in a court action to determine paternity (Nevada Revised Statute § 126.051; § 126.131). A presumption of paternity can be established by blood tests or tests for genetic identification that show a probability of 99 percent or more that the man is the father (N.R.S. § 126.051.1(e)). However, even if the evidence does not necessarily establish a "presumption of paternity", an adjudicator may nevertheless determine that the evidence is sufficient to show paternity (N.R.S. § 126.131). An action to determine paternity in a Nevada court is a civil proceeding (N.R.S. § 126.151). The standard of proof therefore is a preponderance of the evidence. Mack v. Ashlock, 112 Nev. 1062, 1066 (1996); Rivera v. Minnich, 483 U.S. 574 (1987).

You asked whether Nevada law would accept as proof of paternity the DNA test results showing that the wage earner's mother is the claimant's paternal grandmother. We have found no authority to indicate whether a Nevada court would accept these results as establishing the presumption. Considering that the statute allows blood tests to be done on "any other person so involved" in the paternity proceeding, which would include the alleged paternal grandmother, a strong argument could be made that this evidence supports a presumption of paternity (N.R.S. § 126.121). Even though Nevada's genetic test presumption is based on the probability calculation of paternity, not grand parentage, a portion of the Methodist Hospital report stated that the relative chance of paternity, assuming a 50% prior chance, is 99.99% (See Page two of the Methodist Hospital report).

Nevertheless, as stated above, even when a presumption is not clearly established, an adjudicator in Nevada may consider other evidence relating to paternity. He may consider evidence of sexual intercourse between the mother and alleged father at any possible time of conception (N.R.S. § 126.131.1(a)). He may also consider the results of any tests for the typing of blood or taking of specimens for genetic identification that is (1) of a type acknowledged as reliable by an organization approved by the Secretary of Health and Human Services, and (2) performed by a laboratory that is accredited by such an organization (N.R.S. § 126.131.1(c)) . The adjudicator may also consider "all other evidence relevant to the issue of paternity of the child" (N.R.S. § 126.131.1(f)).

In this case, there is at least a preponderance of evidence to indicate paternity under Nevada law. There is evidence that the claimant's mother and the wage earner lived together around the time of conception. The alleged grandmother's statement that the wage earner believed he was the father of the claimant might be considered evidence that he and the claimant's mother had sexual intercourse at the time. The genetic tests show a 99.99% probability that the wage earner's mother is the claimant's paternal grandmother. Assuming that the wage earner has only one brother, the significance of this calculation of grand parentage is further strengthened by the fact that the brother was incarcerated during the time the claimant was conceived. All of these factors together support a determination of paternity. Chambers v. Sanderson, 107 Nev. 846 (1991) (finding of paternity where blood tests indicated 99% chance of paternity and mother provided affidavit stating she and alleged father had sexual intercourse during the probable period of conception).

CONCLUSION

Because there is sufficient evidence under Nevada law to show paternity, the claimant should be granted benefits based on the March 1998 application, with the appropriate retroactive benefits beginning no earlier than October 9, 1997, the date of the wage earner's death. ^[6]

LEGITMACY AND LEGITIMATION — PRESUMPTIONS AND EVIDENCE — NEVADA

The criteria for establishing a "parent and child relationship" under Nevada's Uniform Parentage Act (UPA) should be used for identifying "children" entitled to inherit intestate personal property under Nevada's succession laws.

Under the UPA there is a presumption of paternity where the alleged father and the child's natural mother were cohabiting for at least 6 months before the period of conception and continued to cohabit during that period. There is also a presumption of paternity where, while the child is under the age of majority the alleged father receives the child into his home and openly holds out the child as his natural child. Where there is evidence that the WE cohabited with the mother for more than one year prior to conception, and for at least two years after the child's birth, there is a presumption of paternity under both alternatives. The presumption can be rebutted only by clear and convincing evidence that the presumed father is not the natural father. (B~, John, ~, RA IX(T~) to RC, Programs, 8/26/82)

The claimant, Sonja L. W~, was born on December 23, 1963. Her mother, Odessa W~, was not married; She indicated on the birth certificate that the baby's father was "unknown." John B~, the deceased wage earner and alleged father of Sonja, never married (or attempted to marry) Odessa. Neither did the wage earner acknowledge Sonja in writing as his child or contribute to Sonja's support. John's mother, Adiree F~, has stated, however, that John and Odessa lived together for at least two years prior to Sonja's conception and for at least two years after Sonja's birth. In addition, Adiree F~ and two other relatives of the wage earner have stated that John orally acknowledged Sonja as his child. In a November 20, 1975, pre-sentence report by the Nevada Department of Parole and Probation, John admitted that he had lived with Odessa in "common-law" marital status and that three children were born of this union. One of the three children listed in that report was "Sandra L. W~," age eleven. John died in Nevada on June 27, 1981, Adiree F~ has filed an application for child's benefits on John's account. You sought our advice as to whether Sonja qualifies as John's child under Nevada law.

As you concluded, Nevada law applies in assessing Sonja's status because John died a Nevada domiciliary. See section 216(h) (2) (A) of the Social Security Act. Moreover, even though Sonja was born in 1963, you also are correct in concluding that Nevada's Uniform Parentage Act, enacted in 1979, applies here. Nevada Revised Statutes (hereinafter "NRS") section 126.011 clearly indicates that the 1979 statutory provisions apply to all parentage issues, no matter when the child in question was born.

A parent-child relationship is defined as the legal relationship between a child and parent "incident to which the law confers or imposes rights, privileges, duties and obligations." NRS §126.021-3. Although inheritance rights are not specifically mentioned in Nevada's Uniform Parentage Act (UPA), they also are not excluded; thus, a child's right to inherit from his/her parent is encompassed by section 126.021-3, along with all other rights conferred by law upon a parent and a child with respect to each other. The Nevada succession statutes (NRS Chapter 134) do not cross-refer to the UPA, nor do they define "child" for succession purposes — they merely use the terms "child" and "parent." (In contrast, NRS section 134.190 specifies that adopted children inherit as provided in the adoption statutes (Chapter 127), and NRS section 127.160 specifies those inheritance rights.) Given that the terminology in the UPA and succession chapters are identical, and the lack of any other definition of "child" in the succession chapter, we believe that a Nevada court ^[7] would look to the establishment of a "parent and child relationship" under the UPA, for purposes of identifying "children" entitled to inherit intestate personal property under Nevada's succession laws. This conclusion is strengthened by the fact that as part of the bill (Senate Bill No. 294) enacting the Uniform Parentage Act, the Nevada Legislature repealed NRS section 134.170 (and 134.180). This former succession law had dealt with inheritance rights of illegitimate children. (See, e.g., GC opinion re Samuel S~, D-~, September 15, 1959.)

A presumption of paternity may be raised under the UPA by several alternative provisions of NRS section 126.051. There is no evidence that John and Odessa ever married or attempted to marry by a marriage solemnized in apparent compliance with law. ^[8] There also is no evidence to establish that John ever acknowledged Sonja as his child in a writing filed with the state registrar of vital statistics. Thus, the only provisions of section 126.051 pursuant to which Sonja might qualify as John's child are: (1) subsection (b), which mandates the presumption of paternity where "[the alleged father] and the child's natural mother were cohabiting for at least 6 months before the period of conception and continued to cohabit during that period," and (2) subsection (e), which mandates the presumption where, "[w]hile the child is under the age of majority, [the alleged father] receives the child into his home and openly holds out the child as his natural child."^[9]

Because Nevada's Uniform Parentage Act is so new, there is no published case law interpreting its provisions. On the facts of this case, however, we are certain that Nevada courts would find that John B~ qualifies as Sonja W~ presumed father under Nevada law, assuming that Odessa W~, the child's mother, does not dispute any of the facts currently in the file.? John's mother has stated that John and Odessa cohabited for more than one year prior to Sonja's conception and for at least two years after Sonja's birth. This is sufficient evidence to raise the subsection (b) presumption that John was Sonja's father. In addition, the presumption may be raised under subsection (e). John's mother stated that John lived with Sonja and Odessa for at least two years after the child's birth. Thus, John received the child into his home. Three of John's relatives have stated that John orally acknowledged paternity to them. John also acknowledged paternity to the individual who prepared the November 1975 pre-sentence report.

The presumption of paternity may be rebutted only by "clear and convincing evidence" that the presumed father is not, in fact, the natural father. NRS §126.051-3. No such clear and convincing evidence to rebut the presumption is included in the claims file. As indicated in the November 1975 pre-sentence report, John himself reportedly stated that he had lived with Odessa in common-law status. This tends to support the statement by John's mother with respect to the cohabitation of John and Odessa. The only evidence which tends to detract from the veracity of Adiree F~ statement concerning cohabitation is the fact that Odessa reported, for purposes of issuing the child's birth certificate, that the father of Sonja was "unknown." There may be a variety of reasons why John and/or Odessa did not wish John to be named as the father on the birth certificate. Whatever the reason for the failure to identify John as Sonja's father on the birth certificate, this one factor does not constitute clear and convincing evidence to rebut the presumption of paternity raised by the facts discussed above. ^[10]

It should be noted that because Sonja will likely qualify for benefits effective June 1981, pursuant to section 202(j) of the Act, the August 1981 amendments to the Act (see Public Law 97-35) concerning child's benefits to students will not preclude her entitlement to such benefits. You will have to verify that she has been and continues to be a full-time student as she has alleged, however. The August 1981 amendments will, of course, require the applicable reduction of her benefits for months after July 1982.

For all of the foregoing reasons, we conclude that Sonja W~ is the "child" of John B~ (assuming that the appropriate factual verification is obtained from Odessa W~) under Nevada's Uniform Parentage Act. She is therefore entitled to child's benefits on John B~ account, pursuant to section 216(h) (2) (A) of the Social Security Act, provided that her student status is verified.