Date: October 26, 2018
SYLLABUS
The Virgin Islands inheritance statute does not provide for posthumous determinations
of paternity. Therefore, we must apply the standard of proof that Virgin Islands courts
would use for a determination of paternity under the Territory’s paternity statute.
In this case, the Superior Court of the Virgin Islands considered evidence including:
(1) a certificate of death from St. Thomas, U.S. Virgin Islands for the NH; (2) certifications
of birth of the claimant and her sister, both from the U.S. Virgin Islands Department
of Health; and (3) DNA results of siblingship administered in St. Thomas, U.S. Virgin
Islands. The Court found that the DNA test results established siblingship and paternity
by 99.9%, and that proof of paternity was established pursuant to the Virgin Islands
Code. The Court concluded that the claimant shall be entitled to all rights and privileges
as the child of the NH and ordered that a new birth certificate be issued listing
the NH as the claimant’s father. Therefore, the claimant is the NH’s child under the
Social Security Act because paternity can be established under Virgin Islands law.
QUESTION PRESENTED
Whether T~ (the claimant), the biological child of L~ (L~), is entitled to Social
Security benefits as the child of T2~, the number holder (NH).
OPINION
The claimant is the NH’s child under the Social Security Act (Act) because paternity
can be established under Virgin Islands law.
BACKGROUND
The NH died on November XX, 1997, in St. Thomas, Virgin Islands. At the time of his
death, he was in a relationship with L~, the claimant’s mother. The claimant was born
two days later on November XX, 1997.
On December XX, 1997, L~ filed an application for Survivor Child’s benefits on behalf
of the claimant on NH’s record. The claim was denied at the initial and reconsideration
level in 1998 and the claim was also denied at the hearing level on February XX, 2002,
due to insufficient evidence to establish the relationship between the child and the
NH.
On January XX, 2015, L~ filed a new application on behalf of the claimant on the NH’s
record. She submitted as new evidence DNA tests comparing the claimant’s DNA with
that of her sister, T3~, born December XX, 1994, which shows that there is 99.9% probability
that they are full siblings.
T3~ collected Surviving Child’s benefits on the record of the NH until she turned
age 18 in December 2011. Surviving Child’s benefits were awarded to T3~ in November
1997, based on the fact that the NH signed a hospital form acknowledging himself as
the biological father.
ANALYSIS
A. Federal Law
To qualify for child’s benefits under the Act, an applicant must be the “child” of
the insured individual (i.e., NH). A “child” is defined as the natural child, legally
adopted child, stepchild, or in limited circumstances, grandchild or step grandchild
of an insured individual.[1] Act §§ 202(d), 216(e); 42 U.S.C. §§ 402(d), 416(e). Here, because the claimant does
not meet the definition of a “child,” pursuant to the Act, an analysis must be conducted
whether the claimant can still be deemed the surviving child of the NH.
First, the Act provides that in determining whether a claimant will be deemed the
surviving child of an insured individual, the Commissioner shall apply such law as
would be applied in determining the devolution of intestate personal property under
the laws of the State in which the insured wage earner 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),
404.355(b), POMS GN 00306.001. Because NH was domiciled in the Virgin Islands at the time of his death, Virgin
Islands’ law regarding the devolution of intestate personal property applies.
Second, the Act permits a claimant to be deemed the child of an insured person if
the insured person and the mother or father of the child, as the case may be, participated
in a marriage ceremony resulting in a purported marriage which, but for a legal impediment,
would have been a valid marriage.[2] Act § 216(h)(2)(B); 42 U.S.C. § 416(h)(2)(B).
Lastly, the Act provides that a claimant will be deemed the child of a fully insured
individual, if, in the case of a deceased individual, such insured individual had:
(1) acknowledged in writing that the applicant is his son or daughter; (2) been decreed
by a court to be the father of the applicant; or (3) been ordered by a court to contribute
to support of the applicant because the applicant was his daughter. Act § 216(h)(3)(C)(i);
42 U.S.C. § 416(h)(3)(C)(i). This section further states that the acknowledgment,
court decree, or court order must have been made before the death of the wage earner.
Id. Under subsection (3)(C), the claimant may also be deemed the child of an insured
person if “such insured individual is shown by evidence satisfactory to the Commissioner
of Social Security to have been the mother or father of the applicant, and such insured
individual was living with or contributing to the support of the applicant at the
time such insured individual died.” Act § 216(h)(3)(C)(ii); 42 U.S.C. § 416(h)(3)(C)(ii).
B. State Law
1. Intestacy Law
The intestacy law of the Virgin Islands provides that:
[a]n illegitimate child shall be considered to have the same status, for purposes
of descent and distribution of the property of his or her ancestor…provided that the
[father] admitted of record paternity of such child by signing the birth certificate;
or he was adjudged the father of such child by a court of competent jurisdiction;
or by written acknowledgement recognized such child as his.
15 V.I. § 84(13). The intestacy statute thus does not provide for posthumous findings
of paternity absent a finding that at least one of the stated actions occurred during
his lifetime See Isaac v. Crichlow, 63 V.I. 38, 2015 V.I. LEXIS 15 (V.I. Super. Ct. 2015) (Based on her birth certificate
and a letter in which the decedent acknowledged plaintiff as his daughter, plaintiff
had established that she was the decedent’s illegitimate daughter and entitled to
an equitable interest in his estate).
The Program Operations Manual System (POMS) acknowledges this fact.[3] Pursuant to subsection 4 of POMS GN 00306.655, Virgin Islands Intestacy Laws, where the father dies after August 3, 1957, adjudication
of paternity for the purpose of inheritance must have occurred in his lifetime. However,
the Commissioner’s regulations provide as follows:
We will not apply any State inheritance law requirement that an action to establish
paternity must be taken within a specified period of time measured from the worker’s
death or the child’s birth, or that an action to establish paternity must have been
started or completed before the worker’s death.
20 C.F.R. § 404.355(b)(2). The regulations go on to state that, in cases where state
inheritance laws require that paternity be established within a specified period of
time, the Commissioner will decide paternity by using the standard of proof that the
state courts would use as the basis for a determination of paternity. Id. As such,
for claims filed on or after November 27, 1998, or pending on that date, the Virgin
Islands Intestacy Laws POMS provision states that SSA will determine the relationship
between the alleged father and the child during the alleged father's lifetime and
after his death by applying a preponderance of the evidence standard. POMS GN 00306.655.[4] Thus, because the Virgin Islands inheritance statute does not provide for posthumous
determinations of paternity, we must apply the standard of proof that Virgin Islands
courts would use for a determination of paternity under the Territory’s paternity
statute. See Isaac v. Crichlow, 63 V.I. at 52 (court looks to the Virgin Islands statute governing acknowledgement
of paternity to determine if evidence used to establish claim of paternity is sufficient,
citing, Section 295 of Title 16 of the Virgin Islands Codes).
2. Paternity Law
The Virgin Islands Code provides that paternity may be established (1) voluntarily
by signed Acknowledgment of Paternity; (2) by Court or administrative paternity establishment;
or (3) through marriage of the child’s parents. See 16 V.I. §§ 291-296.
As relevant here, according to the Virgin Islands paternity statute, paternity can
be established by a court order where the parties consent, per 16 V.I. § 293(e), or
where the issue is contested, and the court orders a blood, genetic, or DNA test,
per 16 V.I. § 293(f). A test result showing a statistical probability of paternity
of 99% or higher shall constitute a conclusive presumption of paternity. 16 V.I. §
293(g).[5]
As noted above, to establish paternity, Virgin Islands courts generally apply the
preponderance of the evidence standard. See, e.g., Hyman v. Prince, 9 V.I. 47 (1971) (holding that the unsupported testimony of the mother, if believed,
satisfies the applicable proof of paternity by a preponderance of the evidence); Government
of Virgin Islands, ex rel C.C. v. A.P., 1995 WL 914523 *3, vacated on other grounds
by, 961 F. Supp. 122 (1997) (“…all that is required to establish paternity is sufficient
evidence to convince the fact finder that the person accused is indeed the father”).
Courts in the Virgin Islands consider a number of factors in determining whether paternity
may be established after the death of the putative father. Some of the things that
the Virgin Islands courts consider are the testimony of the mother, the fact that
the couple was together at the time of conception, the number of people the father
told about his unborn child, and blood test results. See, Application of Baby
Girl Lake, 1995 WL 789028 *3 (V.I. 1995) (stating in dicta that, even if posthumous adjudications
of paternity could be made, paternity could not be established where the putative
father merely told one person that his girlfriend was pregnant); see also, Government of Virgin Islands, ex rel C.C. v. A.P., 1995 WL 914523 *3 (V.I. 1995) (noting that Human Leukocyte Antigen blood testing
was not conclusive evidence of paternity, but could be considered by the fact-finder).
3. A Virgin Islands Court Found Proof of Paternity
In this case, Judge D~ at the Superior Court of the Virgin Islands considered evidence
including: (1) a certificate of death from St. Thomas, U.S. Virgin Islands for T2~
Jr., the putative father of T~; (2) certifications of birth of T~, D.O.B. November
XX, 1997 and her sister, T3~ D.O.B. December XX, 1993, both from the U.S. Virgin Islands
Department of Health; and (3) DNA results of siblingship administered in St. Thomas,
U.S. Virgin Islands. The Court found that the DNA test results established siblingship
and paternity by 99.9%, and that proof of paternity was established pursuant to Title
16 § 293(g) and § 295(a) of the Virgin Islands Code. The Court concluded that T~ shall
be entitled to all rights and privileges as the child of T2~ and ordered that a new
birth certificate be issued listing T~’s father as T2~.
In sum, the evidence in its entirety demonstrates that the claimant is NH’s child.
CONCLUSION
Based upon our review of Virgin Islands law, the facts you provided to us, and J~’s
decision that T2~ is T~’s father, we accordingly conclude that, if all other requirements
are satisfied, we believe the agency can find the claimant is entitled to child’s
insurance benefits on the NH’s account.