Although grandparent DNA test results may constitute evidence Illinois courts would consider when determining whether there is clear and convincing evidence of paternity, they do not, standing alone, establish that the child claimant is the NH's father. Additional evidence should be collected, such as statements from the NH's brother(s), if any, and the child's mother, ruling out such brother(s) as the child's father. If paternity is established, entitlement to surviving childs's benefits would begin as of the NHs date of death.

You have requested an opinion on whether DNA testing of genetic material provided by the deceased wage earner's parents is sufficient to establish paternity under Illinois law so that Leticia N. S~ (Leticia) can be considered the wage earner's child for child's insurance benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(2). For the reasons stated herein, we advise that you undertake additional development to eliminate any brother of the wage earner, Robert R. O~ (Robert), as possible father of Leticia. If Robert had no brothers, or if he had brothers but the possibility that one of them fathered Leticia can be eliminated, we believe that, based on the DNA test results and the additional information you provided, an Illinois court would find Robert was Leticia's father.

C~

In 1987, Robert began dating Lorie B. S~, a.k.a. Lorie C~ (Lorie). On July 11, 1990, Leticia was born. Leticia's birth certificate does not identify a father. The couple dated until 1991. On October 9, 2001, Robert died without marrying Lorie. At the time of his death, Robert was domiciled in Illinois.

On October 21, 2001, Lorie filed an application for surviving child's benefits on Leticia's behalf. In April of 2002, Robert's parents, Lorie, and Leticia were tested by Genetica DNA Laboratories, Inc. The resulting DNA analysis did not exclude Robert's parents as paternal grandparents of Leticia. The analyst, Elizabeth P~, M.D., Ph.D., certified that the estimated probability of grandparentage by Robert's parents, as compared to an untested, unrelated couple of the North American Hispanic population, was 99.95%.

On May 1, 2002, Robert's mother, Beatrice O~ (Beatrice) wrote a letter stating that she and her husband recognized Leticia as Robert's daughter and that they sent Leticia clothing every month.

ANALYSIS

If the wage earner is deceased, the Social Security Administration (SSA) applies the intestacy laws for the state where the deceased wage earner had a permanent home at the time of death. 20 C.F.R. § 404.355(b)(1). Here, Robert was domiciled in Illinois at the time of his death. Therefore, Leticia can be eligible for surviving child's benefits on Robert's account only if she could inherit Robert's property as his child under Illinois law governing intestate succession. 42 U.S.C. § 416(h)(2)(A). Illinois intestacy law requires illegitimate children who seek to inherit from their deceased fathers to provide authenticated copies of proper court orders of paternity. 755 ILCS 5/2-2(h). However, under Social Security regulations, the child is not required to obtain an adjudication of paternity. 20 C.F.R. § 404.355(b)(2). Rather, the SSA adjudicator determines paternity using the state's standard. Under Illinois law, Leticia would have to prove paternity by “clear and convincing evidence.” 755 ILCS 5/2-2(h).

The Illinois Parentage Act of 1984 makes DNA testing of the alleged father admissible to establish paternity. 750 ILCS 45/11. If the test shows that the alleged father is not excluded and that the combined paternity index is at least 500 to 1, the court presumes paternity. 750 ILCS 45/11(f)(4). This presumption may be rebutted by clear and convincing evidence. Id. Absent a presumption of paternity, Illinois law requires clear and convincing evidence of paternity. 755 ILCS 5/2-2(h).

However, the Illinois Parentage Act of 1984 does not address use of grandparent DNA to establish the presumption of paternity. Although such grandparent DNA test results may constitute evidence Illinois courts would consider when determining paternity, they do not, standing alone, establish that Leticia is Robert's natural child. In the Matter of the Estate of Lukas, 508 N.E.2d 368, 372 (1st Dist. 1987) (at hearing, expert testimony was presented regarding use of paternal grandmother's blood test results to establish her decedent son was child's father). Although probative because of the high probability percentage, the results demonstrate only that Leticia is biologically linked to the alleged paternal grandparents' family. They do not rule out the possibility that another male member of Robert's family, such as a brother, could be the natural father. See Memorandum from OGC Region V to SSA-MOS, Does Posthumous Genetic Testing Based on the DNA of the Deceased Numberholder's Relatives Establish Paternity Under Michigan State Law?, Jeffrey W~, page 5, (May 25, 2000) (explaining that DNA testing of paternal relatives only demonstrates child's biological link to putative paternal family, but it does not rule out possibility that one of deceased's male relatives fathered child).

Here, the claim is bolstered somewhat by Robert and Lorie's four-year relationship and Beatrice's statement that she and her husband recognized Robert as Leticia's father. However, there is also evidence that detracts from that conclusion, such as the lack of Robert's identification as father on Leticia's birth certificate. Moreover, no evidence was presented that Robert ever acknowledged paternity or contributed to the child's support. Taking such factors into consideration, in order to meet the “clear and convincing” legal standard to prove paternity, it is advisable that additional evidence be collected, such as statements from Robert's brother(s), if any, and Lorie, ruling out such brother(s) as Leticia's father.

You also asked, if paternity was established, what would be the appropriate date of entitlement. For purposes of entitlement to surviving child's benefits, Leticia would be considered Robert's child for inheritance purposes as of the date of his death. See Warren-Boynton State Bank v. Wallbaum, 528 N.E.2d 640, 643 (Ill. 1988) (stating that “heirs” in the technical sense of the word are always determined at the time of the testator's death).

CONCLUSION

Under Illinois law, it is unlikely the “clear and convincing” evidence standard proving paternity has been met. Therefore, it is recommended that additional documentation be obtained to rule out any likelihood that a brother of Robert fathered Leticia. If additional evidence eliminates the possibility that a brother is Leticia's father, it is likely that an Illinois court would then determine that Robert was Leticia's father. Therefore, it is our opinion that Leticia can be considered Robert's child for the purpose of receiving surviving child's benefits on Robert's account if adequate non-genetic evidence, as described above, is obtained.

Thomas W. C~

Regional Chief Counsel

By: _________________________

Preeti C~

Assistant Regional Counsel

Under Illinois law, once a person is determined to be entitled to inherit under intestate succession, that person is adjudged an heir from birth not from the time of an acknowledgement of paternity.

(G~, Charlie, ~ RAV (M~), to ARC, 06/02/83.)

I. QUESTION PRESENTED

You have asked whether a written acknowledgement of paternity by the wage earner, Charlie G~, is effective under Illinois law to confer natural child status as of the date of the acknowledgement or as of the date of birth of the child.

Charlie G~ acknowledged his paternity of Charles B~, in writing, when he (G~) applied for retirement insurance benefits on March 7, 1977.

II. ANSWER

Although this case has been developed under Section 216(h)(3)(A) of the Social Security Act, which does not allow for retroactive benefits, we are of the opinion that Charles B~ could also be found the illegitimate child of Charlie G~ under Illinois intestacy law. He could then be entitled to benefits under Section 216(h)(2)(A), which does allow for retroactive benefits.

Under Illinois law, once a person is determined to be entitled to inherit under intestate succession, that person appears to be adjudged an heir from birth. Charles B~'s status as a child of Charlie G~, under Illinois law, would date from Charles B~'s birth, not from the date of the acknowledgement.

III. DISCUSSION

Charles B~ was born on December 1, 1963. Charlie G~ acknowledged his paternity of Charles B~ on March 7, 1977 when he (G~ filed for retirement insurance benefits. Charlie G~ further acknowledged his paternity of Charles B~ on April 11, 1977 when he (G~) applied for disability benefits; and G~ acknowledged paternity a third time on the same date when he applied for child's benefits on behalf of both his illegitimate sons, Charles B~ and Charles (G~) H~. Further evidence was obtained from Odessa H~, mother of Charles (G~) H~, who was also fathered by Charlie G~. Odessa H~ stated that she had heard that Charlie G~ had a second illegitimate son but she did not know his whereabouts.

Under Illinois law, an illegitimate child is the heir of a deceased man if it is proved "by clear and convincing evidence" that the deceased was father of the child. Ill. Rev. Stat., Ch. 110 1/2, 2-2 (Smith-Hurd Ann. Ed. 1982-83 Cum. Supp.). The determination of heirship under that statute does not appear to be limited to effectiveness on and after the date of an acknowledgement of paternity, but appears to relate back to the birth of the child.

The statute states that "if a decedent has acknowledged paternity of an illegitimate person, .... that person is heir of his father." Id. We interpret the use of the word "heir," without limitation of any sort, to mean that the illegitimate child is heir from birth and not from the date of an acknowledgement.

Therefore, if SSA determines that Charles B~ is an "heir," i.e., the child, of Charlie G~ under Illinois law, Charles B~ would be eligible for benefits prior to the date of the first written acknowledgement. *

* This case was developed under Section 216(h)(3)(A) of the Act based on the written acknowledgement made when Charlie G~ applied for retirement insurance benefits. See POMS, GN00306.170. However, retroactive benefits prior to date of acknowledgement may not be paid when the case is based on 216(h)(3). See POMS, GN 00306.160. This case was submitted to this Office for opinion based on POMS, GN 00306.100. See Memo Charles G~ E-237 A/N ~, SEPSC-OAS (Merchant) to Insurance Programs Branch RA V (D~) 12/14/82, with attachments. However, that latter POMS citation concerns cases where child status is determined based on State law of intestate succession, i.e., Section 216(h)(2) of the Act. SSA has never determined that Illinois law would grant inheritance rights to Charles B~ as the illegitimate son of Charles G~.

Nevertheless, it is our opinion that SSA could legally conclude that Charles B~ is the child of Charlie G~, under Illinois inheritance law, based on the claims files as they now stand. Illinois law requires "clear and convincing evidence" of a man's paternity before inheritance. rights will be granted to a child. See Fred M~, E-236 A/N ~, RA V (M~) to ARC-Programs V (W~), June 1, 1983. In this case, Charlie G~ made three (3) separate written acknowledgements of two (2) illegitimate sons (both named Charles) on two (2) separate dates. Charlie G~ kept in touch with Charles B~, to some extent, because Charlie G~ knew of the death of the mother of Charles B~ shortly after it occurred. Finally, Odessa H~, the mother of the second illegitimate son, Charles H~, had knowledge of the existence of the first illegitimate son, Charles B~. Odessa H~ also overheard Charlie G~ acknowledge paternity of Charles B~ over the telephone to an SSA employee. Based on these facts, and the lack of any substantial evidence to the contrary, we feel there is sufficient evidence for SSA to find that Charles B~ is the son of Charlie G~ "by clear and convincing evidence." That would be sufficient to give Charles B~ intestate succession rights in Illinois, Ill. Rev. Stat., Ch. 110 1/2, 2-2 (Smith-Hurd Ann. Ed., 1982-83 Cure. Supp.); it would therefore entitle Charles B~ to benefits under Section 216(h)(2) of the Act. POMS, GN 00306.115-00306.135.