The Wyoming Uniform Parentage Act (WUPA) does not expressly address the establishment of paternity by genetic testing of paternal relatives. If genetic testing neither identifies nor excludes a man as the father of a child, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity. Applying the WUPA statutes governing genetic testing and proceedings to adjudicate parentage and the preponderance of the evidence standard, we must determine whether Wyoming courts would find that the Claimant has provided evidence that proves that it is more probable than not that the number holder (NH) is the Claimant's father.

QUESTION PRESENTED

For purposes of her application for surviving child’s insurance benefits under Title II of the Social Security Act (Act) on the record of the number holder J~ (NH), who died on November XX, 2023, domiciled in Wyoming, you asked whether R~ (Claimant) is the NH’s child based on the evidence provided, which includes a certified report of a paternal grandparent DNA test between the Claimant and the NH’s father and statements, including statements from the NH’s only brother. The Claimant was born on July XX, 2024, to L~ (the Mother), 8 months and 24 days after the NH’s death. The NH and Mother were not married.

ANSWER

Applying section 216(h)(2)(A) of the Act and Wyoming law, we believe Wyoming courts would find that the Mother, on behalf of the Claimant, has provided sufficient evidence to establish that the Claimant is the NH’s surviving child for purposes of inheriting from him under Wyoming intestate succession law. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(2); Wyo. Stat. Ann. §§ 2-4-101(a)(i), (c)(i), 2-4-107(a)(iii), 14-2-501(b)(iii).Thus, we believe there is legal support for the agency to determine that the Claimant is the NH’s child for purposes of her application for child’s insurance benefits on the NH’s record. See 42 U.S.C. §§ 402(d)(1), 416(e), (h)(2)(A); 20 C.F.R. § 404.350(a)(1).

BACKGROUND

The NH died on November XX, 2023, domiciled in Wyoming. The Claimant was born to the Mother in Colorado on July XX, 2024, which is 8 months and 24 days after the NH’s death. The Claimant’s Colorado birth certificate, issued August XX, 2024, identifies the Claimant as having a hyphenated last name that includes the Mother’s last name and the NH’s last name. The birth certificate identifies the Mother as the Claimant’s mother and the NH as her father. The Claimant’s Enumeration at Birth (EAB) Numident record identifies the NH as the father. On behalf of the Claimant, the Mother protectively filed an application for child’s insurance benefits on the NH’s record on September XX, 2024. She provided paternal grandparent DNA testing and statements to support her claim that the Claimant is the NH’s child.^[1]

Paternal Grandparent DNA Testing

The Mother provided a DNA Test Report and chain of custody documentation from DDC DNA Diagnostics Center reflecting DNA testing of J1~ as the alleged paternal grandfather, the Claimant as the child, and the Mother as the mother. The DNA Test Report revealed a 99.98% probability of relatedness between the alleged paternal grandfather J1~ and the Claimant and a likelihood of 824 to 1 that the alleged paternal grandfather J1~ is a biological relative of the Claimant.

Mother’s Statements

On September XX, 2024, the Mother completed the Form SSA-2519 Child Relationship Statement. She reported that a court had never decreed the NH to be the Claimant’s parent or ordered him to pay child support; the NH had never made any acknowledgments that the Claimant is his child; and the NH was not contributing to the Claimant’s support. The Mother provided her signed written statements on the Form SSA-795 in November 2024 describing her relationship with the NH as his girlfriend and best friend, stating that they began dating in August 2023, and describing the NH’s living situation in W~, Wyoming where he worked at a ranch. She wrote that she was providing a letter as proof of their relationship. A letter from the Office of the Wyoming State Public Defender dated November XX, 2023 (the month of the NH’s death), was addressed to the NH at an address in W~, Wyoming. The letter enclosed a pre-sentence investigation report that stated that the NH had been married to K~ for 10 years but that they were separated. The report further stated that the NH “has been seeing L1~ for the past couple of months. She lives in Colorado at the present time.” Presumably, the reference to “L1~” is the Mother, L~.

Witness Statements

On November, XX, 2024, K1~, who appears to be a relative of the Mother given the same last name, provided her signed written statement on the Form SSA-795 describing the Mother’s relationship with the NH. She stated that the Mother had a committed relationship with the NH beginning in 2023 and that the Mother was always visiting the NH in Wyoming. She stated that she went with the Mother to Texas in September 2024 so that the NH’s family could meet his daughter, the Claimant.

On December XX, 2024, J2~, who described herself as a close friend of the Mother’s, provided a signed written statement on the Form SSA-795 and wrote that the Claimant is the NH’s daughter. She stated that the Mother told her that her relationship with the NH was serious. She wrote that the Mother found out she was pregnant with the Claimant 8 days after the NH passed away. She stated that the Mother visited her house that day with the pregnancy test.

On December XX, 2024, the NH’s brother R1~ provided his signed statement on the Form SSA-795. He stated: “I R1~ am not the father. J~ is the only possible S~ to be the father.” An agency employee recorded an interview with the NH’s brother R1~ on January XX, 2025, on an agency report of contact (Form SSA-5002). The agency asked the NH’s brother where the NH maintained his home at the time of his death. The NH’s brother stated: “At the time of his passing, he was working on a ranch in Wyoming. He lived in Wyoming and did not have a home in any other state.” He said that the NH said Wyoming was his home for the past year. The NH’s brother also stated that he and their father are the NH’s only family and that their mother was deceased.

An agency employee recorded an interview with K~, the NH’s surviving spouse, on January XX, 2025, on an agency report of contact (Form SSA-5002). She confirmed that they were legally married but separated at the time of the NH’s death. She also confirmed that the NH said Wyoming was his home and that he paid taxes in Wyoming, where he worked at a ranch.

ANALYSIS

A. Federal Law: Status as a Child for Entitlement to Child's Insurance Benefits

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on the record of an insured individual who has died or an individual who is entitled to old-age or disability benefits if, among other things, the claimant is the individual’s child. See 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350(a)(1), 404.354.^[2] For Title II benefits, the Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Our inquiry focuses on whether the Claimant is the NH’s natural child, as there is no evidence that the other terms would apply here.

In assessing a claimant’s status as a natural child, per section 216(h)(2)(A) of the Act,^[3] the agency must determine whether the claimant could inherit the insured individual’s personal property as his child under the intestate succession laws of the State where the insured individual was domiciled at the time of the insured’s death.^[4] See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). The agency applies the version of State law in effect when the final decision on the application for benefits is made unless a more favorable version existed either when the insured died or during the time commencing with the claimant’s first month of benefits eligibility and ending with the agency’s final decision. 20 C.F.R. § 404.355(b)(4). Because the NH was domiciled in Wyoming at the time of his death in November 2023, we apply current Wyoming intestate succession laws to determine whether the Claimant could inherit from the NH as his child.^[5]

B. State Law: The Right to Inherit under Current Wyoming Intestate Succession Ls as a Decedent Child^[6]

1. Wyoming Intestate Succession Law and the Establishment of the Parent-Child Relationship under the Wyoming Uniform Parentage Act (WUPA) for a Child Born Outside of Wedlock

The Wyoming Probate Code states that when a person dies intestate, the person’s estate descends to that person’s surviving spouse and surviving children.^[7] Wyo. Stat. Ann. § 2-4-101(a)(i), (c)(i). In determining who is a deceased person’s child for purposes of intestate inheritance, section 2-4-107 instructs that a child born out of wedlock is the mother’s child and that a child born out of wedlock is also the father’s child “if the relationship of parent and child has been established under the [Wyoming] Uniform Parentage Act, [Wyo. Stat. Ann. §§ 14-2-401 through 14-2-907].” Wyo. Stat. Ann. § 2-4-107(a)(iii). Thus, the WUPA governs the establishment of the parent-child relationship for intestate succession for a child born outside of a marriage, such as the Claimant.

Under the WUPA, a father-child relationship is established by:

(i) An unrebutted presumption of the man’s paternity of the child under Wyo. Stat. Ann. § 14-2-504,

(ii) An effective acknowledgment of paternity by the man pursuant to article 6 of the WUPA,

(iii) An adjudication of the man’s paternity,

(iv) Adoption of the child by the man, or

(v) The man’s consent to assisted reproduction by his wife under article 9 of the WUPA that results in the birth of the child.

Wyo. Stat. Ann. § 14-2-501(b).

Here, no presumption of paternity applies.^[8] See Wyo. Stat. Ann. § 14-2-501(b)(i). The NH did not provide a written acknowledgment of paternity consistent with the law. See Wyo. Stat. Ann. § 14-2-501(b)(ii). Adoption and consent to assisted reproduction are not applicable here. See Wyo. Stat. Ann. § 14-2-501(b)(iv), (v). Finally, there is no court adjudication of NH’s paternity. See Wyo. Stat. Ann. § 14-2-501(b)(iii).

Although there is no court adjudication of paternity, agency regulations provide that if a State inheritance law requires a court determination of paternity, the agency will not require that the claimant obtain such a determination. 20 C.F.R. § 404.355(b)(2). Instead, the agency will apply the same standard of proof that the State court would apply in making its own determination of paternity. Id. Consequently, to determine the Claimant’s intestate inheritance rights as the NH’s surviving child, the agency will not require a Wyoming court adjudication establishing the NH’s paternity; rather the agency will apply the standard of proof that a Wyoming court would apply in adjudicating the NH’s paternity, or parentage. See 20 C.F.R. § 404.355(b)(2); Wyo. Stat. Ann. §§ 2-4-107(a)(iii), 14-2-501(b)(iii).

2. Adjudicating Parentage under the WUPA

A proceeding to adjudicate parentage is a civil proceeding. See Wyo. Stat. Ann. § 14-2-801. The WUPA does not set forth a specific standard of proof used to establish paternity in a proceeding to adjudicate parentage, but we believe it is likely that Wyoming courts would apply the same preponderance of the evidence standard in a proceeding to adjudicate parentage that is required in other civil cases.^[9] See Wyo. Stat. Ann. § 14-2-801 (“A civil proceeding may be maintained to adjudicate the parentage of a child. The proceeding is governed by the Wyoming Rules of Civil Procedure.”); Colyer v. State, Dept. of Transp., 203 P.3d 1104, 1107 (Wyo. 2009) (noting that the standard civil burden of proof is a preponderance of the evidence); see also In the Matter of SAJ v. AFM, 781 P.2d 528, 529 (Wyo. 1989) (applying a prior version of Wyoming parentage statutes and stating that “paternity cases are civil actions in which the petitioner must assume the burden of establishing his, or her, case by a preponderance of the evidence”). A “preponderance of the evidence” means “proof which leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence.” Traylor v. Kraft, 552 P.3d 351, 361 (Wyo. 2024) (internal citations and quotations omitted). Thus, the evidence must establish that it is more probable than not that the NH is the Claimant’s father.

The evidence submitted to prove that the NH is the Claimant’s father includes DNA testing. The WUPA permits a court to order genetic testing under appropriate circumstances to determine parentage in a proceeding to adjudicate parentage. See Wyo. Stat. Ann. §§ 14-2-701 – 14-2-710 (WUPA provisions concerning genetic testing), §§ 14-2-801 – 14-2-823 (WUPA provisions governing proceedings to adjudicate parentage). To be valid under the WUPA, genetic testing must be “of a type reasonably relied on by experts in the field of genetic testing” and must be performed by a laboratory accredited by either (1) the American Association of Blood Banks (AABB), (2) the American Society of Histocompatibility and Immunogenetics, or (3) an accrediting body designated by the United States Secretary of Health and Human Services. Wyo. Stat. Ann. § 14-2-703(a). Additionally, to be admissible without testimony, the report of genetic testing must be in a record and signed under penalty of perjury by a designee of the testing laboratory and must include documentation sufficient to establish a reliable chain of custody of the specimens tested. Wyo. Stat. Ann. § 14-2-704; see also Wyo. Stat. Ann. § 14-2-813(a) (“a record of a genetic testing expert is admissible as evidence of the truth of the facts asserted in the report unless a party objects”). Documentation of a reliable chain of custody is established by information that includes the names and photographs of the individuals whose specimen have been taken; the names of the individuals who collected the specimen; the places and dates the specimen were collected; the names of the individuals who received the specimen in the testing laboratory; and the dates the specimen were received. Wyo. Stat. Ann. § 14-2-704(b).

Under section 14-2-705 of the WUPA governing genetic testing results, a man is rebuttably identified as the father of a child if the genetic testing complies with the foregoing rules and the results show “at least a ninety-nine (99%) probability of paternity” and a “combined paternity index of at least one hundred (100) to one (1).”^[10] Wyo. Stat. Ann. § 14-2-705(a). Unless admitted to rebut other genetic testing results, “a man identified as the father of a child under [section] 14-2-705 shall be adjudicated the father of the child.”Wyo. Stat. Ann. § 14-2-817(a)(ii); see also Matter of Paternity of AAAE, 471 P.3d 990, 996 (Wyo. 2020) (noting that section 14-2-817 “leaves no discretion once genetic testing is ordered and positive results are returned” and that the statute “requires that a man identified by genetic testing as the father ‘shall be’ adjudicated the father”). If genetic testing under section 14-2-705 neither identifies nor excludes a man as the father of a child, “the results of genetic testing, and other evidence, are admissible to adjudicate the issue of paternity.” Wyo. Stat. Ann. § 14-2-817(a)(iii).

Here, the Claimant has not provided genetic testing of the NH revealing a probability of paternity; rather, the Claimant has presented DNA testing of the alleged paternal grandfather (NH’s father) that shows a probability of biological relatedness. The WUPA contemplates the testing of the identical brother of a putative father but does not otherwise expressly address the establishment of paternity by genetic testing of paternal relatives. See Wyo. Stat. Ann. § 14-2-709. We have also not found any Wyoming case law that addresses the genetic testing of a man’s relatives to establish his paternity. We note that other States that have adopted the Uniform Parentage Act expressly authorize genetic testing of a man’s relatives as evidence to adjudicate the man’s paternity. See e.g., Tex. Fam. Code Ann. § 160.508(a) (allowing for genetic testing of a man’s parents, siblings, other children, and other relatives to assist in adjudicating the man’s paternity); Tex. Estates Code Ann. § 204.054 (to determine a decedent’s heir, a court may order genetic testing of a decedent’s parents, siblings, another child, or any other relative). We believe it is likely that Wyoming courts would consider results of genetic testing of paternal relatives as evidence in adjudicating a man’s paternity. See Wyo. Stat. Ann. § 14-2-817(a)(iii) (if genetic testing under section 14-2-705 neither identifies nor excludes a man as the father of a child, “the results of genetic testing, and other evidence, are admissible to adjudicate the issue of paternity”).

Applying the WUPA statutes governing genetic testing and proceedings to adjudicate parentage and the preponderance of the evidence standard, as described above, we must determine whether Wyoming courts would find that the Claimant has provided evidence that proves that it is more probable than not that the NH is the Claimant’s father.

3. Application of the Law to the Claim: Evidence Establishes the NH’s Paternity under the WUPA and thus, the Parent-Child Relationship for Intestate Inheritance Purposes under Wyoming Intestate Succession Law

The Mother provided a DNA Test Report from DDC DNA Diagnostics Center reflecting genetic testing of J1~ as the alleged paternal grandfather, the Claimant as the child, and the Mother as the mother. The DNA Test Report states that DDC is an AABB accredited and certified laboratory and the grandparent testing would appear to be the type of testing reasonably relied upon in the field of genetic testing.^[11] See Wyo. Stat. Ann. § 14-2-703(a) (requirements for genetic testing). Although not signed under penalty of perjury, W~, the Laboratory Director, signed the DNA Test Report before a notary public on October XX, 2024, and verified that the interpretation of the results is correct. See Wyo. Stat. Ann. § 14-2-704(a) (requirements for the report of genetic testing). Further, included with the DNA Test Report is the DDC DNA Diagnostics Center Client Identification & Consent Form, Chain of Custody Documentation. The chain of custody documents contain: the names and photographs of the Mother, the Claimant, and the paternal grandfather J1~; the names of the individuals at the collection facilities who collected their specimen; the places and dates their specimen were collected; the names of the recipients with the testing laboratory DNA Diagnostics Center that received the specimen; and the dates the specimen were received by the testing laboratory. See Wyo. Stat. Ann. § 14-2-704(b) (chain of custody documentation requirements for the report of genetic testing). This DNA Test Report appears to substantially comply with the requirements of Wyoming law pertaining to genetic testing and the genetic testing report, as detailed above. See Wyo. Stat. Ann. §§ 14-2-703, 14-2-704.

The DNA Test Report states that DNA from the alleged paternal grandfather J1~ was compared to the tested child and revealed a 99.98% probability of relatedness. The likelihood that the alleged paternal grandfather J1~ is the biological relative of the tested child is 824 to 1. Importantly, these results of a 99.98% probability of relatedness meet the same 99% statutory threshold set forth for paternity in section 14-2-705. See Wyo. Stat. Ann. § 14-2-705(a) (a man is rebuttably identified as the father of a child if the genetic testing complies with the foregoing rules and the results show “at least a ninety-nine (99%) probability of paternity”). If genetic testing under section 14-2-705 neither identifies nor excludes a man as the father of a child, “the results of genetic testing, and other evidence, are admissible to adjudicate the issue of paternity.” Wyo. Stat. Ann. § 14-2-817(a)(iii). As addressed above, although the WUPA does not expressly address genetic testing of a man’s relatives, we believe Wyoming courts would consider genetic testing of a man’s relatives in adjudicating his paternity. We believe Wyoming courts would find that this grandparent DNA Test Report revealing a 99.98% probability of biological relatedness between the Claimant and the NH’s father J1~ that substantially complies with the requirements for genetic testing and the genetic testing report (with the chain of custody documentation) supports finding the NH to be the Claimant’s father.

In addition to the DNA testing, the Mother provided her own statements and witness statements to support this parent-child relationship. On November XX, 2024, the Mother provided her signed written statement on the Form SSA-795. She identified herself as the NH’s girlfriend and provided the following statement describing her relationship with the NH:

J~ and I met in July 2023 and started dating … in August 2023. I was at the ranch with him every weekend …. He was my best friend! J~ did inform me from the very beginning he was still legally married but had been separated for just over a year. He shared one daughter with his estranged wife and a son from a previous relationship. I never had any communication with J~’s family prior to his death. Since finding out I was pregnant, they have since been nothing but supportive and welcomed myself and R~ into their family. J~ and I were in an active relationship up until his last breath at the Ranch in W~, WY.

As shown on an agency report of contact, Form SSA-5002, the NH’s surviving spouse confirmed to the agency that although they were legally married, they were separated and he had been working and living in Wyoming.

Significantly, given the paternal grandparent testing showing a biological relationship between the NH’s father and the Claimant, the NH’s only brother confirmed that he was not the Claimant’s father. On December XX, 2024, the NH’s brother R1~ provided his signed statement on the Form SSA-795. He stated: “I R1~ am not the father. J~ is the only possible S~ to be the father.” As shown on an agency report of contact, Form SSA-5002, the NH’s brother confirmed on January XX, 2025, that the NH had been working and living in Wyoming for at least a year. Further, the NH’s brother confirmed that he and his father were the NH’s only living family.

K1~, who appears to be a relative of the Mother given her last name, provided her signed written statement on the Form SSA-795 corroborating the Mother’s claims. She stated that the Mother had a committed relationship with the NH beginning in 2023 and that the Mother was always visiting the NH in Wyoming. She stated that she went with the Mother to Texas in September 2024 so that the NH’s family could meet his daughter, the Claimant.

J2~, who described herself as a close friend of the Mother’s, provided her signed written statement on the Form SSA-795 also corroborating the Mother’s claims that the Claimant is the NH’s daughter. J2~ stated that the Mother told her about the NH and how serious their relationship was. She wrote that the Mother found out she was pregnant with the Claimant 8 days after the NH passed away. She stated that the Mother visited her house that day with the pregnancy test.

These witness statements are all consistent in describing the Mother’s relationship with the NH before his death; in confirming that although legally married to another woman, he was separated and living in Wyoming; and in corroborating the Mother’s claims that the NH is the Claimant’s father. Finally, the Claimant’s Colorado birth certificate confirms that when the Claimant was born in July 2024, the Mother gave the Claimant the NH’s last name of S~ and identified the NH as the Claimant’s father.^[12]

In summary, considering the totality of the evidence and applying the provisions of the WUPA governing proceedings to adjudicate parentage and genetic testing, we believe Wyoming courts would find that the Mother, on behalf of the Claimant, has proven that it is more probable than not that the NH is the Claimant’s father.^[13] Thus, under the WUPA, we believe Wyoming courts would adjudicate the NH to be the Claimant’s father. See Wyo. Stat. Ann. § 14-2-501(b)(iii).Therefore, we believe Wyoming courts would find that the Claimant has established that she is the NH’s surviving child with the right to inherit from the NH under Wyoming intestate succession law. See Wyo. Stat. Ann. §§ 2-4-101(a)(i), (c)(i), 2-4-107(a)(iii), 14-2-501(b)(iii).

CONCLUSION

Applying section 216(h)(2)(A) of the Act and Wyoming law, we believe Wyoming courts would find that the Mother, on behalf of the Claimant, has provided sufficient evidence to establish that the Claimant is the NH’s surviving child for purposes of inheriting from him under Wyoming intestate succession law. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(2); Wyo. Stat. Ann. §§ 2-4-101(a)(i), (c)(i), 2-4-107(a)(iii), 14-2-501(b)(iii).Thus, we believe there is legal support for the agency to determine that the Claimant is the NH’s child for purposes of her application for child’s insurance benefits on the NH’s record. See 42 U.S.C. §§ 402(d)(1), 416(e), (h)(2)(A); 20 C.F.R. § 404.350(a)(1).

In the State of Wyoming, it is reasonable to conclude that a Wyoming court would declare the Number Holder (NH) as the biological father of the claimant based on DNA testing of the NH’s alleged uncle and statements of the NH’s mother that she never had physical contact with any of the NH’s relatives, it would likely conclude that the NH was the father of the claimant.

The Wyoming Uniform Parentage Act does not contemplate the establishment of paternity through DNA testing on a relative of a deceased putative father, the DNA testing on the alleged uncle, as was done in this case, provides only a relationship index, a Wyoming court would look at all of the evidence, including genetic testing.

Questions Presented

You asked whether Wyoming would recognize Ryan M~ as the child of David C~, the deceased number holder, based on DNA testing conducted on an alleged uncle. If Wyoming would recognize Ryan M~ as the child of the number holder, you also asked whether the child is a legitimated child (under POMS GN 00306.50) or an illegitimate child with inheritance rights (under POMS GN 00306.55).

Short Answer

Wyoming law does not directly address the question of whether DNA testing conducted on a male relative is sufficient to establish paternity. However, based on the information provided, it is likely that a Wyoming court applying the Wyoming Uniform Parentage Act would determine that the number holder is M~’s father. If so, the number holder would be considered M~’s father effective as of the date of M~’s birth, such that M~ should be treated like a legitimated child under POMS GN 00306.50.

Background

According to the information you provided, M~ is a child allegedly born to the number holder and Sherlene M~ in Longview, Texas on January 31, 2008. A father’s name was not shown on the birth certificate. At the time of M~’s conception and birth, M~ was legally married to a man other than the number holder. M~ and her husband have never been legally separated and remain married. However, M~ claims that at the time M~ was conceived, she was not living with her husband, but rather was living and in an intimate relationship with the number holder. The number holder died on July 13, 2009. He was domiciled in Wyoming at the time of his death. Although M~ and M~ briefly resided with number holder in Wyoming, they were not living with him at the time of his death.

In an effort to establish that the deceased number holder was M~’s father, M~ arranged for DNA testing of the child and of John C~, the brother of the deceased number holder. The DNA testing did not summarize the probability of parentage since it was not direct testing on the purported father. However, the Y-chromosome DNA testing indicated that there is a 99.927% probability that M~ and John C~ share a common patrilineal ancestor. According to information provided by the laboratory that conducted the testing, when an alleged father is unavailable for testing or is deceased, the Y-chromosome DNA of a male child can be tested against any number of his male relatives, including, but not limited to, other known male children, brothers and half brothers with the same father, uncles, a grandfather, and grandfather’s brothers. However, the laboratory noted that such testing is not appropriate to determine paternity in circumstances where there are two related alleged fathers.

M~ signed a statement indicating that she never met John C~. She also represented that the number holder’s father was deceased at the time she met the number holder. She said that she has not met any of the number holder’s relatives, and does not know if he had any male relatives other than John C~.

DISCUSSION

Because the number holder was domiciled in Wyoming at the time of his death, the agency applies Wyoming law to determine the relationship between the number holder and M~. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); Program Operations Manual System (POMS) GN 00306.001.

Under the Wyoming statute concerning intestate succession, a person born out of wedlock is a child of the mother. WYO. STAT. ANN. § 2-4-107(a)(iii). Such a person is also a child of the father “if the relationship of parent and child has been established under the Uniform Parentage Act.” Id.

Under the Wyoming Uniform Parentage Act, WYO. STAT. ANN. §§ 14-2-401 through 14-2-907, a man is presumed to be the father of a child if “[h]e and the mother are married to each other and the child is born during the marriage.” WYO. STAT. ANN. § 14-2-504(a)(i). Here, M~ was married to and not legally separated from her husband at the time M~ was conceived and born. Thus, under Wyoming law, M~’ husband is presumed to be M~’s father. ^[14]

A father-child relationship is established under the Wyoming Uniform Parentage Act when there is an unrebutted presumption of the man’s paternity under WYO. STAT. ANN. § 14-2-504. See WYO. STAT. ANN. § 14-2-501(b)(i). In other words, unless the presumption of paternity is rebutted, Wyoming would consider M~’ husband to be M~’s father.

A presumption of paternity that is based on marriage can only be rebutted by an adjudication under article 8 of the Wyoming Uniform Parentage Act. WYO. STAT. ANN. § 14-2-504(b). Even though Wyoming law requires an actual adjudication of paternity, M~ need not obtain an adjudication for Social Security purposes if she can establish paternity using the standard of proof a Wyoming court would apply. 20 C.F.R. § 404.355(b)(2). ^[15] WYO. STAT. ANN. § 14_2_817(a)(iii) is silent as to the standard of proof to be applied when evaluating evidence of paternity, and we have located no Wyoming cases that address the standard of proof applicable to paternity determinations made under the current version of the statute. As indicated in POMS GN 00306.680, an earlier version of the Wyoming Uniform Parentage Act required the presumption of paternity to be rebutted by clear and convincing evidence. However, this language was eliminated in the latest version of the statute. ^[16] The commentary to the model Uniform Parentage Act, a model statute that was adopted nearly verbatim (with certain omissions) by the Wyoming legislature, indicates that this was intentional. The clear and convincing evidence standard was eliminated because modern genetic testing makes it possible to resolve competing claims to paternity in most cases. See Commentary to 2000 Uniform Parentage Act (2002 revision) § 204, available at http://www.law.upenn.edu/bll/archives/ulc/upa/final2002.htm#TOC1_1. Moreover, both the model Uniform Parentage Act and the Wyoming Uniform Parentage Act state that a proceeding to adjudicate paternity is a civil proceeding governed by the rules of civil procedure, and the commentary to the model uniform Parentage Act indicates that the standard of proof for establishing paternity should be a preponderance of the evidence as it is in other civil cases. 2000 Uniform Parentage Act (2002 revision) § 601; WYO. STAT. ANN. § 14-2-801. Thus, it is likely that a Wyoming court would apply a preponderance of the evidence standard to this case.

Regardless of the standard of proof, Article 8 of the Wyoming Uniform Parentage Act provides that the paternity of a child having a presumed father “may be disproved only by admissible results of genetic testing excluding the man as the father of the child or identifying another man as the father of the child.” WYO. STAT. ANN. § 14-2-817. There is no indication in the information you provided us that M~’ husband has submitted to genetic testing that excluded him as M~’s father. Unless such testing exists, the presumption that M~’ husband is M~’s father can only be rebutted by genetic testing identifying another man (i.e., the number holder) as M~’s father. Id.

The Wyoming Uniform Parentage Act does not contemplate the establishment of paternity through DNA testing on a relative of a deceased putative father, and we have not located any Wyoming cases that address this issue. ^[17] Rather, the law requires that in order to rebuttably identify a man as the father of a child, the results of genetic testing must show:

(i) The man has at least a ninety-nine percent (99%) probability of paternity, using a prior probability of one-half (1/2), as calculated by using the combined paternity index obtained in the testing; and

(ii) A combined paternity index of at least one hundred (100) to one (1).

WYO. STAT. ANN § 14-2-705(a). DNA testing on an alleged relative, as was done in this case, provides only a relationship index; it does not provide a probability of paternity or a combined paternity index. Thus, genetic testing results on a relative do not per se overcome or establish a presumption of paternity under the Wyoming Uniform Parentage Act.

However, the Wyoming Uniform Parentage Act also provides that “[i]f the court finds that genetic testing under [WYO. STAT. ANN §] 14-2-705 neither identifies nor excludes a man as the father of a child, the court may not dismiss the proceeding.” WYO. STAT. ANN. § 14_2_817(a)(iii). Rather, the results of genetic testing, and other evidence, are admissible to adjudicate the issue of paternity. Id. ^[18]

Here, the results of genetic testing of the number holder’s brother indicate that there is better than a 99% probability that M~ and the number holder share a common male ancestor. These results do not conclusively identify the number holder as M~’s father, but they also certainly do not exclude him. Thus, it appears that WYO. STAT. ANN. § 14-2-817(a)(iii) would apply, which would allow a Wyoming court to consider all of the evidence, including genetic testing, in determining M~’s paternity.

We have identified no Wyoming court decisions addressing what weight would be given to DNA testing of a sibling or explaining what other facts a court might finding probative when considering all the evidence of paternity under WYO. STAT. ANN. § 14-2-817(a)(iii). While the DNA evidence shows that the number holder and M~ share a common male ancestor, the DNA laboratory stated that this information is not useful to show paternity if there are related alleged fathers. Thus, a Wyoming court would likely look to the strength of the evidence that none of the number holder’s relatives was M~’s father.

M~ has provided a statement indicating that she was living with the number holder during the time period when M~ was conceived. She also stated that she has never met John C~, the brother of the number holder on whom the genetic testing was conducted. In addition, she said that the number holder’s father was deceased at the time she met the number holder, and claimed that she did not know whether the number holder had any other male relatives. If true, M~’ statements would appear to exclude the number holder’s male relatives as potential fathers of M~, leaving the number holder as the only potential father in light of the DNA test results. Although the information you provided to us does not give us any particular reason to question the truth of M~’s statements, a Wyoming court considering the issue would make its determination after considering all of the evidence, which may include information beyond that which has been provided to us. For example, evidence that the number holder’s father was not deceased at the time M~ met the number holder, or that she in fact met John C~ or another male relative of the number holder, would undermine M~’ credibility. Evidence that the number holder’s father was deceased at the time M~ met the number holder or a corroborating statement from John C~ that he never met M~ would enhance her credibility. It is impossible for us to predict how the evidence would develop if a Wyoming court were to hold a hearing on this issue. However, assuming that no evidence emerges to detract from M~’ credibility, it appears likely that a Wyoming court would find that the number holder was M~’s father based upon the combination of (1) the DNA evidence establishing the patrilineal link between the number holder and M~; and (2) M~’ testimony that would appear to exclude any of the number holder’s relatives as other potential fathers.

With regard to the question of whether M~ should be considered a legitimized child under POMS GN 00306.50, or an illegitimate child with inheritance rights under POMS GN 00306.55, neither POMS provision appears to be directly applicable to the current Wyoming intestacy laws. A legitimated child is a child who was born illegitimate but has been legitimated under state law by the acts of his parents. POMS GN 00306.050. Such a child is considered to be legitimate from birth. Id. If an illegitimate child is not legitimated, the child has the status of a “child” under the Social Security Act if the child has inheritance rights under applicable state intestacy laws. POMS GN 00306.55. When an illegitimate child has inheritance rights, an act or event conferring these inheritance rights generally has effect only from the date of such act or event, not from the date of the child’s birth. Id. Wyoming, however, does not distinguish between legitimate and illegitimate children.

As explained above, the Wyoming intestacy statute provides that a child born out of wedlock is the child of the father if the relationship of parent and child has been established under the Wyoming Uniform Parentage Act. WYO. STAT. ANN. § 2-4-107(a)(iii). The Wyoming Uniform Parentage Act further provides that “[a] child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.” WYO. STAT. ANN. § 14-2-502. When a Wyoming court issues an order that a man not listed on the birth certificate is a child’s father, the court is required to order the state office of vital records to issue an amended birth certificate naming the adjudicated father as the child’s father. WYO. STAT. ANN § 14-8-822(f). In other words, if a paternal relationship is established through the Wyoming Uniform Parentage Act, the child is considered the child of the father from the date of his birth, and has all the same rights he would have if his parents had been married. Thus, it appears that if number holder’s relationship to the child were to be established under the Wyoming Uniform Parentage Act, the situation would be most analogous to that of a legitimated child under POMS GN 00306.55.

CONCLUSION

Under Wyoming law, the DNA testing of M~’s alleged uncle does not meet the standards for determining paternity through genetic testing as a matter of law. However, because the DNA testing on M~’s alleged uncle neither affirmatively established nor excluded the number holder as M~’s father, a Wyoming court would likely look to all of the evidence, including the genetic testing. Assuming that a Wyoming court accepted as true M~’ statements that she never had physical contact with any of number holder’s male relatives, it would likely conclude that number holder was M~’s father Wyoming Uniform Parentage Act. Thus, if the agency adjudicator finds these statements credible, this would establish the number holder as M~’s father for all purposes effective at the time of M~’s birth. As such, M~ should be treated like a legitimated child under POMS GN 00306.

Donna L. C~

Acting Regional Chief Counsel Region VIII

By: ___________

Sandra T. K~

Assistant Regional Counsel

Wyoming courts will give "full faith and credit" to an acknowledgement of paternity filed in another State. In this case an acknowledgment of paternity filed in Utah by another man is enough to preclude the finding of a parent-child relationship between the claimant and our NH, since the acknowledgement has not been rescinded or challenged in court.

Issue

Whether Wyoming law recognizes Christopher B. B~ (the claimant) as the child of Jason J~, the number holder (NH), for the purpose of intestate succession, in light of the fact that another man, Bryan B~, signed an acknowledgement of paternity.^[19]

Short Answer

The evidence before the Agency does not establish a father-child relationship between the claimant and the NH under the Wyoming Uniform Parentage Act; therefore, the claimant cannot inherit from the NH and cannot receive child insurance benefits under the Social Security Act (Act).

Facts

According to information you have provided, the claimant was born in Utah on February 19, 1990. One day later, Bryan B~ signed an "Acknowledgement of Paternity" and filed the acknowledgment with the State of Utah. He is listed as the father on the claimant's birth certificate. The claimant believed that Bryan B~ was his father until his seventeenth birthday. On that day, the NH's mother informed the claimant that the NH was his father. The claimant's mother subsequently admitted that the claimant's father was the NH, not Bryan B~. The NH died on May 12, 1998. At the time of his death, the NH lived in the State of Wyoming.

The evidence before the Agency consists of the following: a copy of the claimant's birth certificate, which lists Bryan B~ as his father; an acknowledgement of paternity signed by both the claimant's mother and Bryan B~; a report of contact during which the claimant stated that the NH's mother told the claimant that the NH was his father and that the claimant's mother has allegedly admitted that the NH is the claimant's father; a picture of the claimant, as an infant, with the NH; a letter written by NH that asked about the claimant; and the results of Y-chromosome STR testing of the claimant and the NH's father, which revealed the two share a common male lineage.

Legal Analysis

Whether the claimant is entitled to child's insurance benefits on the NH's earnings record depends upon whether he can be considered the NH's "child" under the Act. As relevant here, the Act provides that, in determining whether an applicant is the child of the deceased wage earner, the Commissioner shall apply the law that determines devolution of intestate personal property in the wage earner's state of domicile at death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); Program Operations Manual System (POMS) GN 00306.001(C)(2)(a). In this case, the NH lived in Wyoming when he died; therefore, Wyoming intestacy law applies. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 0306.001(C)(1)(a).

The relevant Wyoming rule of intestate succession provides that the estate of any intestate without a husband or wife shall descend and be distributed to his children surviving and the descendants of his children who are dead. . . . Wyo. Stat. Ann. §§ 2-4-101(c)(i). Wyoming probate code provides that for purposes of intestate succession, a person born out of wedlock is a child of the father, if the relationship of parent and child has been established under the Uniform Parentage Act. Id. §§ 2-4-107(a)(iii).

The Wyoming Uniform Parentage Act, see id. § 14-2-401 to 907, provides that

[t]he father-child relationship is established between a man and a child by:

(i) An unrebutted presumption of the man's paternity of the child under W.S. § 14-2-504 [Presumption of paternity in context of marriage];

POMS GN 00306.680.E.

(ii) An effective acknowledgment of paternity by the man under article 6 of this act, unless the acknowledgment has been rescinded or successfully challenged; ^[20]

(iii) An adjudication of the man's paternity;

(iv) Adoption of the child by the man; or

(v) The man's having consented to assisted reproduction by his wife under article 8 of this act which resulted in the birth of the child.

Id. § 14-2-501(b).

In this case, the only applicable provision of the Wyoming Uniform Parentage Act is § 14-2-501(b)(ii) - whether there is an effective acknowledgment of paternity by the NH or Bryan B~, which has not been rescinded or challenged in court.

As noted above, the claimant was born in the State of Utah and the day after his birth,

Bryan B~ signed and filed an acknowledgement of paternity in Utah. Bryan B~ is the claimant's declarant father under Utah Code Ann. § 78-45g-201 2(b) (2005), which provides that a father-child relationship is established between a man and a child by an effective declaration of paternity by the man unless the declaration has been rescinded or successfully challenged. See Utah Code Ann. § 78-45g-301 (2005) (a man claiming to be the genetic father of the child may sign a declaration of paternity to establish the paternity of the child); id. § 78-45g-302 (2005) (execution of declaration of paternity). There is no evidence the declaration of paternity has been rescinded or challenged in court; therefore, it remains effective in the State of Utah. Id. § 78-45g-306 (2005).

The Wyoming Uniform Parentage Act provides that a Wyoming court will give full faith and credit to an acknowledgement of paternity effective in another state, if the acknowledgement has been signed and is otherwise in compliance with the law of the state. Wyo. Stat. Ann. § 14-2-611. Because Bryan B~ signed his declaration of paternity (which has not been rescinded or successfully challenged in court) in accordance with Utah law, the State of Wyoming considers him as the claimant's father.

Conclusion

The evidence before the Agency does not establish a father-child relationship between the claimant and the NH under Wyoming law. Under Wyoming law a father-child relationship exists between Bryan B~ and the claimant, due to an effective acknowledgment of paternity. Therefore, the claimant cannot inherit from the NH and cannot receive child insurance benefits under the Act.

2 The POMS provide that effective 07/01/2000, a man is considered (but not presumed) to be the natural father of a child born in Wyoming if, with the consent of the mother, he has acknowledged his paternity by signing an affidavit of paternity and an acknowledgment of the privileges and obligations associated with parentage and filed these documents with the Wyoming office of vital records. The required contents of the mother's consent and the father's affidavit are essentially the same as those stated in B.5. POMS GN 00306.680.E.

Sincerely yours,

Deana R. E~-L~

Acting Regional Chief Counsel

By:________________________

Stephanie F. K~

Assistant Regional Counsel

Under Wyoming law, an order terminating the parent-child legal relationship does not affect the right of the child to inherit from the parent.

Questions Presented

You have requested an opinion on whether John N~ child, Gypsy F. N~, was still eligible for surviving child's benefits on his record, despite the termination of his parental rights.

Facts

Gypsy F. N~ was born on December 5, 1994 to Christine N~ and John E. N~, the number holder (NH). The parents were divorced on May 21, 1997, and Christine remarried on July 2, 1999. The NH and Christine petitioned for voluntary termination of Mr. N~ parental rights in April 2000. On April 3, 2000, a judge in the Eighth Judicial Circuit Court of South Dakota signed an order terminating Mr. N~ parental rights. Mr. N~ died on October 1, 2002, while domiciled in Wyoming. On December 6, 2002, Christine's husband adopted Gypsy.

Discussion

The Social Security Act (Act) provides for the payment of child's insurance benefits (CIB) to certain children of individuals who are entitled to old-age or disability insurance benefits or who died fully or currently insured. See 20 C.F.R. §§ 404.350-404.368 (2003). Section 216 of the Social Security Act, 42 U.S.C. § 416(h)(2)(A), provides that [i]n determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, 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 is domiciled at the time such applicant filed application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death . . . .

Thus, Gypsy's entitlement to CIB depends on whether she could inherit John N~ money, property, or other assets as his child according to the intestacy laws of Wyoming, the State in which he was domiciled at the time of his death.

Wyoming State law governing termination of parental rights and the right to inherit is clear and explicit. Wyo. Stat. § 14-2-317(a)(ii) (2003) states that "an order terminating the parent-child legal relationship divests the parent of all legal rights and privileges . . . except . . . [t]he right of the child to inherit from the parent shall not be affected by the order." (Emphasis added.)

Conclusion

Thus, we conclude that the termination of Mr. N~ parental rights did not end Gypsy's right to inherit from him, and Gypsy may still be entitled to CIB on his wage earnings.

Sincerely yours,

Yvette G. K~

Acting Regional Chief Counsel

By:________________________

Laura R~l-B~

Assistant Regional Counsel