I. Question Presented
Whether a child of unwed parents conceived before the number-holder’s (NH) death,
but born after, has any inheritance rights under New Hampshire intestacy law, so as
to be eligible for child’s survivor benefits, based on a DNA test and other evidence
generated after the NH’s death
II. Short Answer
This Memorandum responds to your request for an opinion concerning whether J~, the
claimant, can establish that he is entitled to child’s survivor benefits on the account
of the deceased NH, B~, based on (1) DNA test results establishing a 99.99% probability
that the claimant is the grandchild of the NH’s parents; (2) written statements from
the NH’s mother and sister; and (3) the NH’s obituary, listing his “longtime girlfriend”
and “unborn child” among his survivors. As explained below, we believe that this evidence
is likely sufficient to establish paternity under New Hampshire law and SSA regulations,
such that the claimant is entitled to benefits – although one more piece of evidence
(which has been requested) would significantly bolster the case.
III. Background
The NH was domiciled in New Hampshire when he died in January 2014. See Death Certificate. The claimant was born in July 2014 in Rhode Island. See Birth Certificate. His birth certificate lists his mother as M~ (M~); the entry for
his father’s name is blank. Id.
In May 2016, M~ filed an application for child’s survivor benefits on behalf of the
claimant on the NH’s record. See Application. In support, she submitted:
- A DNA test report indicating a 99.99% probability that G~ and P2~ (listed on the
NH’s death certificate as his parents (see Death Certificate)) are the claimant’s grandparents (see DNA Test Report);
- A copy of the NH’s obituary, published in the Berlin (New Hampshire) Daily Sun,
listing among his survivors “his longtime girlfriend, M~” and “his unborn child –
due June 2014,” as well as one brother (see Obituary);
- A June 2016 letter from P2~, acknowledging the claimant as her grandson, and explaining
that she “made notice in [the NH’s] obituary that M~ was pregnant upon his death”
(see P2~ Letter);
- A statement from P~, the NH’s sister, acknowledging the claimant as her nephew,
and likewise asserting that M~ was pregnant at the time of the NH’s death (see P~ Letter).
There is no indication that the NH and M~ ever married. Nor is there any court order
of paternity or written acknowledgment of paternity from the NH. Nor is there any
indication that the NH ever supported, or indicated an intent to support, his future
child.
IV. Applicable Law
A. Federal Law
The Social Security Act (the Act) provides for the payment of child’s survivor benefits
to a child of a number holder who dies when fully or currently insured if the child
has filed an application for benefits and was unmarried and under age 18 (or age 19
if a full-time student) at the time the application was filed and was dependent upon
the number holder at the time of death.[1] 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350 (2006); POMS RS 00203.001.A.1. The Act provides that a claimant is the “child” of an insured individual if
any of the following conditions is met:
1. The claimant could inherit the insured’s personal property as his or her natural
child under the relevant state’s inheritance laws;
2. The insured and the claimant’s mother went through a ceremony, which would have
resulted in a valid marriage between them except for a legal impediment;
3. The claimant is the insured’s natural child and the insured acknowledged in writing
that the child was his natural child, was decreed by a court to be the child’s parent,
or was ordered by a court to contribute to the child’s support; or
4. The insured is shown by evidence satisfactory to the Commissioner to have been
the child’s father, and he was living with or contributing to the child’s support
at the time of his death.
42 U.S.C. § 416(h)(2)-(3); 20 C.F.R. § 404.355(a)(1)-(4). Only the first of these
conditions is potentially applicable here.
According to the POMS, the adjudicator must first determine whether the claimant could
inherit under the relevant state inheritance law; if so, the inquiry must end. POMS
GN 00306.100(A)(1). Where the insured is deceased, the Commissioner applies such law as would
be applied in determining the devolution of intestate personal property by the courts
of the state where the insured is domiciled at the time of application or death. 42
U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001.C.2.a. Here, the NH died while domiciled in New Hampshire; accordingly, New Hampshire
law applies to the claimant’s claim.
B. New Hampshire Law
Under New Hampshire’s intestacy statute, the part of the intestate estate not passing
to the surviving spouse, or the entire intestate estate if there is no surviving spouse,
passes to the decedent’s issue. N.H. Rev. Stat. Ann. § 561:1(II)(a). A child born
to unwed parents shall inherit from his father as if born in lawful wedlock, if any
of the following conditions is met:
a. Intermarriage of the parents after the child’s birth;
b. Acknowledgment of paternity or legitimation by the father;
c. A court decree adjudges the decedent to be the father before his death;
d. Paternity is established after the death of the father by clear and convincing
evidence; or
e. The decedent had adopted the child.
N.H. Rev. Stat. Ann. § 561:4(II); see also POMS GN 00306.560(A). In this case, there is no evidence of intermarriage, acknowledgment of paternity,
a court decree, or adoption, and therefore the only relevant question is whether the
NH’s paternity has been established by clear and convincing evidence. See N.H. Rev. Stat. Ann. § 561:4(II)(d).
To date, there is no caselaw interpreting this provision of the New Hampshire intestacy
laws, and therefore it is unclear what evidence would suffice to meet the “clear and
convincing evidence” requirement. New Hampshire law however, does authorize genetic
testing in cases where paternity is a contested and relevant issue. N.H. Rev. Stat.
Ann. § 522:1. If the genetic testing shows that the alleged father is not excluded
and that the probability of the alleged father’s paternity is 97% or higher, the alleged
father is presumed to be the father; this presumption can be rebutted by clear and
convincing evidence. N.H. Rev. Stat. Ann. § 522:4(I)(d). There are no statutes or
New Hampshire cases concerning genetic testing of the alleged father’s relatives.
V. Analysis
Despite the lack of New Hampshire caselaw directly on point, the evidence submitted
to date appears likely to meet the “clear and convincing evidence” standard set forth
in N.H. Rev. Stat. Ann. § 561:4(II)(d). The DNA test indicating a 99.99% possibility
that the NH’s parents are the claimant’s grandparents is particularly strong evidence.
Although neither New Hampshire statutes nor caselaw specifically address genetic testing
of relatives other than the alleged father, courts in other states with statutes authorizing
proof of paternity by genetic testing have relied on blood test results of both alleged
full siblings and alleged paternal grandparents in paternity proceedings. See In re Estate of Wilkins, 707 N.Y.S.2d 774, 777-78 (N.Y. Sur. Ct. 2000) (finding that genetic test showing
99.69% possibility of grandparentage met clear and convincing standard, but remanding
for further consideration of conflicting genetic test results); Lach v. Welch, No. FA930063955, 1997 WL 536330, at *5, *7 (Conn. Super. Ct. Aug. 15, 1997) (discussing
reliability of testing relatives for purposes of establishing paternity, citing cases,
and ordering testing of alleged paternal grandparents); Tipps v. Metropolitan Life Ins. Co., 768 F. Supp. 577, 580 (S.D. Tex. 1991) (relying on genetic testing of alleged paternal
grandparents); see also Drake ex rel. Atwood v. Apfel, No. Civ. 300CV1540H, 2001 WL 705784, at *4 (N.D. Tex. June 18, 2001) (ruling that
ALJ erred by failing to apply California statutory presumption of paternity for DNA
test results with paternity index of 100 or greater to DNA testing using alleged paternal
grandmother’s blood). New Hampshire courts would likely find this authority persuasive,
and conclude that the genetic test results created a rebuttable presumption that the
NH was the claimant’s father. See N.H. Rev. Stat. Ann. § 522:4(I)(d).
Moreover, nothing in the evidence submitted to date appears sufficient to rebut this
presumption. See id. (presumption can be rebutted by clear and convincing evidence). At most, the NH’s
obituary indicates that he has one surviving brother (see Obituary), and the DNA test confirming likely grandparentage is also consistent with
the possibility that the NH’s brother is the claimant’s father. But there is nothing
in the evidence submitted to date to even suggest this possibility.[2] P2~ described M~ as the NH’s “longtime girlfriend” in his obituary, and listed his
“unborn child – due June 2014” among his survivors (see Obituary); she also submitted a statement confirming that M~ was pregnant at the
time of the NH’s death (see P2~ Letter). P~ made a similar statement. See P~ Letter. In any event, SSA cannot require the NH’s brother to undergo genetic testing,
or imply that such further testing is required. See POMS GN 00306.125(B)(1)(c).[3]
The case would, however, be bolstered significantly by a statement from M~ asserting
that the NH is the claimant’s father. In the sole Regional Chief Counsel Precedent
Decision interpreting N.H. Rev. Stat. Ann. § 561:4(II)(d), SSA concluded that statements
from the child’s mother and her friends attesting that the NH was the child’s father,
together with statements from three of the NH’s relatives that the NH had acknowledged
paternity to them, and hospital forms listing the NH as the child’s father, were sufficient
to meet the “clear and convincing evidence” standard. See POMS PR § 01115.032 (Child Relationship Determination – Roberta L.D.) (Apr. 27, 2000). No DNA evidence was presented in that case. See id. Here, by contrast, there is DNA evidence, but it is ambiguous. Moreover, the claimant’s
birth certificate does not list any father (see Birth Certificate), neither P2~ nor P~ ever stated outright that the NH was the claimant’s
father (although the context of the letters implies it), and M~ has not, to date,
submitted any statement in support of the claim. Since we cannot request further genetic
testing from the NH’s brother, it appears that the next best option is to request
a statement from M~, confirming that she and the NH were in a relationship at the
time of the claimant’s conception, and that the NH is the claimant’s father. This
evidence, together with the DNA test and the other evidence submitted to date, would
likely satisfy both New Hampshire and SSA requirements for establishing paternity
– particularly in the absence of evidence to the contrary. The Field Office has already
contacted M~ to request a statement, and is now awaiting a response.
VI. Conclusion
Provided that M~ provides the requested statement, we believe that New Hampshire courts
would likely find that the claimant could inherit from the deceased NH as his child
under New Hampshire’s intestacy statute.
Christopher Michaels
Acting Regional Chief Counsel
By: /s/ Natasha Oeltjen
Assistant Regional Counsel