Effective Dates: 04/17/2023 - Present Previous | Next

TN 66 (04-23)

PR 01105.023 Maryland

A. PR 23-003 Parent-Child Relationship and Grandparent DNA Evidence

Date: April 6, 2023

1. Syllabus

Based only on the Grandparent DNA Report, we believe Maryland courts would find that the Claimant has not established by a preponderance of the evidence that the NH is his father. As such, we believe Maryland courts would find that the Claimant was unable to inherit from the NH as his child under Maryland intestate succession law.

2. Question Presented

For purposes of an application for child’s insurance benefits under Title II of the Social Security Act (Act) on the record of the deceased number holder T~ (NH), who died domiciled in Maryland on August XX, 2005, you asked whether N~ (Claimant) is the NH’s child based only on genetic testing of the NH’s father and the Claimant.

3. Answer

We believe Maryland courts would find genetic testing results of the NH’s father alone to be insufficient to establish the NH’s paternity as to the Claimant, and therefore, the Claimant has not established the right to inherit from the NH as his child under Maryland intestate succession law. Thus, we believe there is legal support for the agency to find that the Claimant is not the NH’s child for purposes of his application for child’s insurance benefits on the NH’s record under Title II of the Act.

4. Background

You advised that the NH died on August XX, 2005, domiciled in Maryland. We located the NH’s online obituary, which states that he was survived by his parents (E~ and B~), stepmother, one daughter (K~), two sons (D1~ and Z~), one brother (W~), and several aunts, uncles, cousins, nieces, and nephews. T~ Obituary (2005) (last visited April 6, 2023).

You stated that the Claimant’s Numident record shows that the Claimant was born on May XX, 2005. His mother is S~. His Numident record does not identify a father. The Claimant turns 18 years old on May XX, 2023.

You advised that on September XX, 2022, B~, the NH’s mother and the Claimant’s alleged grandmother, filed an application for child’s insurance benefits on behalf of the Claimant alleging that the NH is the Claimant’s biological father.[1] She provided only genetic testing results of the Claimant and the NH’s father, E~, to support this relationship.

The genetic testing results consist of a Relationship Report from The DNA Paternity Testing Center (Grandparent DNA Report) showing that testing was perform on specimen from the Claimant and E~, the NH’s father and the Claimant’s alleged paternal grandfather. The Grandparent DNA Report reflects that testing was performed and the report was generated at Laboratory Corporation of America, which is accredited by the AABB. The Grandparent DNA Report concludes that the likelihood of grandpaternity was 1,171,731 to 1 with a probability of grandpaternity of 99.99%. The Grandparent DNA Report states: “The alleged paternal grandfather, E~, could not be excluded as a biological grandfather of the child, [the Claimant], since they share genetic markers. Using the genetic markers found in the testing of the alleged biological grandfather, the probability he is the biological grandfather is 99.99%, as compared to untested, unrelated person of the Caucasian population. This study supports the allegation that a son of the grandfather is the biological father of the child.” The Grandparent DNA Report was signed under penalties of perjury and before a notary public by J~, Ph.D., on May XX, 2022. A LapCorp Client Authorization form identifies the Claimant and the NH's father, provides photographs and fingerprints, and reflects that D2~ certified under penalties of perjury that she collected their specimen for testing on May XX, 2022, at a facility in Hagerstown, Maryland. She mailed the specimen for testing by Federal Express. Someone signed the Client Authorization indicating that they had received the package on May XX, 2022 and that the package was sealed with no signs of tampering.

No one has alleged that the NH and the Claimant’s mother were married at the time of the Claimant’s birth, which was a few months before the NH died. We have no information on the Claimant’s mother, including whether she is or was married to anyone else. We have no information on the Claimant’s living situation at the time of his birth and throughout his childhood or the Claimant’s relationship with the NH’s parents.

5. Analysis

a. Federal Law: Entitlement to Child’s Insurance Benefits as a Child

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, he or she is the individual’s child. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1), 404.354.[2] 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, under section 216(h)(2)(A) of the Act, the agency must determine whether the claimant could inherit the insured individual’s personal property as his or her child under the intestate succession laws of the State where the insured individual was domiciled at the time of the insured’s death.[3] 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 Maryland at the time of his death on August XX, 2005, we apply Maryland intestate succession laws to determine whether the Claimant could inherit from the NH as his child.

b. State Law: A Child’s Right to Inherit under Current Maryland Intestate Succession Law as a Decedent’s Child

1. A Non-Marital Child’s Right to Inheritance under Md. Code Ann, Est. & Trusts § 1.208

Maryland’s intestate succession law provides for inheritance by a decedent’s heirs, which includes a decedent’s children. See Md. Code Ann., Est. & Trusts §§ 1-101, 1-205 – 1-209, 3-101 - 3-103. It is our understanding that the Claimant’s mother and the NH were not married. Section 1-208 of the Maryland Estates and Trusts Code provides the following criteria for determining whether a non-marital child is entitled to intestate inheritance from a purported father as his child:

(b) A child born to parents who have not participated in a marriage ceremony with each other is the child of the parent who did not give birth to the child if:

1. The parent has been judicially determined to be the child’s father in an action brought under Title 5, Subtitle 10 of the Family Law Article, and that determination has not been modified or set aside; or

2. The parent and the child’s mother consented to the conception of the child by means of assisted reproduction with the shared express intent to be the parents of the child, subject to the conditions under § 1-205(a)(2) of this subtitle if the child is conceived after the death of the parent.

(c) There is a rebuttable presumption that a child born to parents who have not participated in a marriage ceremony with each other is the child of an individual who did not give birth to the child if the individual:

1. Has acknowledged himself or herself, in writing, to be a parent of the child;

2. Has openly and notoriously recognized the child to be the individual’s child; or

3. Has subsequently married the mother and has acknowledged himself of herself, orally or in writing, to be a parent of the child.

Md. Code Ann., Est. & Trusts § 1-208(b), (c) (effective Oct. 1, 2019, to present).[4] See also Tyler v. Schweiker, 530 F.Supp. 1028, 1030 (D. Md. 1981) (noting that “Maryland decisions have consistently held that [section 1-208], although contained in the inheritance statute, is not limited in scope and application to matter of inheritance only, but instead is more in the nature of a general legitimating statute,” and further noting that “[t]his section does not require any legal determination as a prerequisite to the application of the statute”).

Here, there is no evidence of a court determination of parentage, no consent to conception by assisted reproduction, no written acknowledgment of parentage, and no evidence of open and notorious recognition of a child. See Md. Code Ann., Est. & Trusts § 1-208(b), (c). Thus, none of the methods for establishing a father-child relationship for intestate inheritance by a non-marital child appear to apply here based on the evidence provided.

However, the Social Security regulations do not require an applicant to obtain a State court adjudication to establish parentage. See 20 C.F.R. § 404.355(b)(2). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id. Thus, the Claimant must establish a parent-child relationship with the NH that would permit the right to inherit under Maryland intestate succession law under the standard of proof a Maryland court would use to determine paternity.

2. Paternity by a Preponderance of the Evidence under Md. Code Ann., Fam. Law §§ 5-1001 – 5-1048

As noted above, section 1-208(b)(1) provides for a parent-child relationship where a parent has been judicially determined to be the child’s father in an action brought under Title 5, Subtitle 10 of the Family Law Article. Md. Code Ann., Est. & Trusts § 1-208(b)(1). Thus, we turn to the statutory provisions of the Family Law Article, Title 5, Subtitle 10 concerning paternity proceedings. See Md. Code Ann., Fam. Law §§ 5-1001 – 5-1048; see also Mulligan v. Corbett, 45 A.3d 243, 248 (Md. 2012) (noting that “[t]here is an interrelationship between the Estates and Trusts Article and the Paternity” provisions of the Family Law Article); Kamp v. Dept. of Human Services, 980 A.2d 448, 454-455 (Md. 2009) (considering section 1-208 of the Estates and Trusts Code and noting that “[w]hen the child is ‘born out of wedlock,’ see Family Law § 5-1002(b), the applicable provisions are those found in §§ 5-1001 – 5-1048 of the Family Law Article.”). The burden is on a claimant to establish paternity by a preponderance of the evidence. Md. Code Ann., Fam. Law § 5-1027(a). Preponderance of the evidence means more likely than not. State v. Sample, 228 A.3d 171, 195 (Md. 2020); see also Coleman v. Anne Arundel County Police Dept., 797 A.2d 770, 781 n.16 (Md. 2002) (noting that the preponderance of the evidence standard of proof is defined in the Maryland Pattern Jury Instructions as follows: “To prove by a preponderance of the evidence means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means such evidence which, when considered and compared with the evidence opposed to it, has more convincing force and produces in your minds a belief that is more likely true than not true.”).

In terms of the type of evidence a court would consider, Maryland statutory law allows blood or genetic testing of the mother, child, and alleged father to establish paternity. See Md. Code Ann., Fam. Law § 5-1029. The law requires that genetic testing take place in a court-approved laboratory. Md. Code Ann., Fam. Law § 5-1029(c). The law requires that “[t]he laboratory shall report the results of each blood or genetic test in writing and in the form the court requires.” Md. Code Ann., Fam. Law § 5-1029(d).

The results of the genetic testing must also meet a certain threshold for admissibility. For admissibility as evidence, the laboratory report shall be admissible in evidence if: (1) definite exclusion is established; or (2) the testing is sufficiently extensive to exclude 97.3% of alleged fathers who are not biological fathers, and the statistical probability of the alleged father’s paternity is at least 97.3%. Md. Code Ann., Fam. Law § 5-1029(f)(2); see also Md. Code Ann., Fam. Law § 5-1038(a)(2)(i) (stating that a declaration of paternity may be modified or set aside if a blood or genetic test done in accordance with § 5-1029 establishes the exclusion of the individual named as the father in the order). A laboratory report received into evidence establishing a statistical probability of the alleged father’s paternity of at least 99.0% constitutes a rebuttable presumption of his paternity. Md. Code Ann., Fam. Law § 5-1029(f)(4).

The report must meet certain reliability and authenticity requirements to be admissible. The law provides that the laboratory report is admissible as evidence of paternity if (1) the doctor or technician that prepared the report is present, or (2) the report is signed by the doctor or technician who prepared or verified the report and the doctor or technician who prepared or verified the report states that the result of the test is as stated in the report. Md. Code Ann., Fam. Law § 5-1029(f)(3).

Here, we do not have genetic testing of the mother, the Claimant, and the NH; instead, we have the Grandparent DNA Report, which finds: “The alleged paternal grandfather, E~, could not be excluded as a biological grandfather of the child, [the Claimant], since they share genetic markers. Using the genetic markers found in the testing of the alleged biological grandfather, the probability he is the biological grandfather is 99.99%, as compared to untested, unrelated person of the Caucasian population. This study supports the allegation that a son of the grandfather is the biological father of the child.” Importantly, the Grandparent DNA Report finds only that “a son of the grandfather is the biological father of the child” and the NH’s on-line obituary indicates that he was survived by a brother (W~), which we assume was also the grandfather’s biological son.

Nothing in the Maryland statutory provisions concerning paternity proceedings or elsewhere in the Family Law Article address the use of genetic testing of an alleged father’s relatives to establish paternity of the alleged father. We are unaware of any Maryland cases discussing genetic testing of an alleged father’s relatives as proof of paternity. Given the absence of direct authority on point, we believe Maryland courts would require additional evidence, beyond genetic testing of a deceased man’s relatives, to establish paternity by a preponderance of the evidence particularly where the man has a biological brother who could also be the child’s father. We have no evidence that the NH, the Claimant’s mother, or the NH’s parents made any statements or undertook any actions consistent with the NH being the child’s father during the mother’s pregnancy with the Claimant or in the three months after his birth in May 2005 and before the NH’s death in August 2005. We have no information on the NH’s brother and his relationship with the Claimant’s mother. We have no information on the Claimant’s mother, including whether she is or was married to anyone else. We have no information on the Claimant’s living situation at the time of his birth and throughout his childhood or the Claimant’s relationship with the NH’s parents. The NH’s on-line obituary does not list the Claimant as one of his surviving children despite the fact that he was alive when the NH died.

Accordingly, based only on the Grandparent DNA Report, we believe Maryland courts would find that the Claimant has not established by a preponderance of the evidence that the NH is his father. As such, we believe Maryland courts would find that the Claimant was unable to inherit from the NH as his child under Maryland intestate succession law. See Md. Code Ann., Est. & Trusts § 1-208(b)(1).[5]

6. Conclusion

We believe Maryland courts would find genetic testing of the NH’s father alone to be insufficient to establish the NH’s paternity as to the Claimant, and therefore, the Claimant has not established the right to inherit from the NH as his child under Maryland intestate succession law. Thus, we believe there is legal support for the agency to find that the Claimant is not the NH’s child for purposes of his application for child’s insurance benefits on the NH’s record under Title II of the Act.

Footnotes:

[1]

You advised that prior applications for child’s insurance benefits have been filed on behalf of the Claimant on the NH’s record and have been denied. We are considering only the current claim and current evidence provided with this application.

[2]

The Claimant must satisfy other criteria for his application for child’s insurance benefits that are outside the scope of this legal opinion request, including showing that he “was dependent upon” the insured individual “at the time of [the individual’s] death” in order to be eligible for benefits. 42 U.S.C. § 402(d)(1)(C)(ii); 20 C.F.R. § 404.360. A child is “deemed” dependent on the insured individual if the child is “legitimate” or was living with or being supported by the wage earner at the time of his death. 42 U.S.C. § 402(d)(3). A claimant can satisfy the legitimacy criterion by meeting the requirements of sections 216(h)(2)(B) or 216(h)(3) of the Act, see id. § 402(d)(3), or by meeting the intestacy requirements of section 216(h)(2)(A) of the Act, see Matthews v. Lucas, 427 U.S. 495, 515 n.17 (1976); 20 C.F.R. § 404.361(a). Consistent with the scope of your legal opinion request, we focus only on the requirement of a parent-child relationship between a claimant and the insured individual. See 20 C.F.R. § 404.350(a)(1).

[3]

Alternately, the agency may deem a claimant to be an individual’s natural child under section 216(h)(2)(B) and (h)(3) of the Act if the claimant is the individual’s biological child and certain criteria are met. 42 U.S.C. § 416(h)(2)(B), (h)(3); 20 C.F.R. § 404.355(a)(2)-(4). However, none of these circumstances exist. Here, there is no indication that the NH and the Claimant’s mother ever married or attempted to marry, and thus section 216(h)(2)(B) does not apply to establish a parent-child relationship. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2). Under section 216(h)(3)(C)(i) of the Act, the biological child of a deceased number holder may be deemed to be the number holder’s child if, before the deceased number holder’s death: (1) the number holder acknowledged in writing that the child was his child; (2) a court decreed the number holder to be the child’s father; or (3) a court ordered the number holder to contribute to the child’s support. See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3)-(4). Because there is no evidence of a written acknowledgment or court order entered before the NH’s death, this provision does not apply to establish the parent-child relationship. In addition, under section 216(h)(3)(C)(ii) of the Act, a biological child of a deceased number holder may be deemed to be the number holder’s child if the agency finds “by other satisfactory evidence” that the number holder was the child’s biological father, and the number holder was living with or contributing to the child’s support at the time of his death (or if the child was in the womb when the number holder died, the number holder must have been either living with or contributing to the support of the mother at the time of the number holder’s death). See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100C.3, GN 00306.125. Here, we have no evidence indicating that the NH was living with or contributing to the support of the Claimant at the time of his death. Therefore, under the specific evidence provided with this claim, even without regard to whether there is the requisite biological relationship, we believe there is legal support for the agency to conclude that the Claimant does not meet the criteria of section 216(h)(2)(B) or (h)(C) of the Act required for the agency to deem him as the natural child under federal standards.

[4]

The prior versions of this statute provided similar methods for establishing a non-marital child’s relationship with a mother and father. The most significant substantive change to this statute in 2019 was to add the provision concerning consent to conception of a child through assisted reproduction. See Md. Code Ann., Est. & Trusts § 1-208 (effective April 9, 1996, to May 31, 2019 and June 1, 2019, through September 30, 2019). Thus, we do not believe a more favorable version of Maryland law existed that applies to the facts here. See 20 C.F.R. § 404.355(b)(4).

[5]

This legal opinion is consistent with prior advice provided on this issue involving similar evidence. See POMS PR 01115.023 Maryland, D. PR 01-217 (Oct. 17, 2001) (advising that Maryland courts would likely consider a relative’s DNA testing as relevant and persuasive, but not conclusive, evidence of paternity if it establishes a relationship probability of 99.0%; Maryland courts would require additional evidence, beyond DNA testing of relatives, to establish paternity by a preponderance of the evidence).

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PR 01105.023 - Maryland - 04/17/2023
Batch run: 04/17/2023
Rev:04/17/2023