The number holder (NH) was a Michigan resident at the time of his death; therefore, we look to Michigan law. We have concluded that the DNA test is insufficient to establish inheritance rights under Michigan law. The NH’s DNA results show that there is a 99.997% probability of grandparent age of the claimant. Although there is a definitive and highly probable link between the NH’s parents and the claimant, the DNA testing alone is inadequate to show by a preponderance of the evidence that the claimant is the child of the NH. However, if sufficient additional evidence is presented on behalf of the child, inheritance rights could be established.

You asked whether, for purposes of child’s benefits, a child would be considered the daughter of a deceased numberholder based on DNA testing of the child and the numberholder’s biological mother and biological father. The numberholder was a Michigan resident at the time of his death, and therefore Michigan law controls this matter. For the reasons discussed below, we conclude that the DNA test is insufficient to establish inheritance rights under Michigan law. However, if sufficient additional evidence is presented on behalf of the child, inheritance rights could be established.

FACTS

T1~ asserts that her child, M1~, is the daughter of the numberholder. The numberholder died on January XX, 20XX; numberholder was a resident of Flint, MI when he passed away. M1~ was born on February XX, 20XX. M1~’s birth certificate does not list any person as the father, and we assume that T1~ was not married shortly before or at the time of M1~’s birth. T1~ and the numberholder were never married. The numberholder was not listed on any of M1~’s NUMIDENT records. Further, the numberholder did not live with M1~ at any point and he did not provide support for M1~. M1~ was not mentioned in the numberholder’s obituary.

In March 2015, T1~ provided the Agency with the results of a DNA test, which examined genetic similarities between M1~ and the numberholder’s biological parents, T2~ and M2~. The results of the test indicated a “probability of grandparentage” of 99.997%. T2~ Numberholder’s Certificate of Death list T2~ and M2~ as his parents. T2~ and M2~ have multiple sons together.

 

T1~ applied for child survivor benefits on behalf of M1~ on April XX, 20XX.

ANALYSIS

Section 202(d) of the Social Security Act provides for the payment of benefits to the child of an insured numberholder who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that, when determining whether an applicant is the child of a numberholder, the Agency will apply the law that would be applied to determine the devolution of intestate personal property by the courts of the state where the numberholder was domiciled at the time of death. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 404.355(b)(4). Here, the numberholder was domiciled in Michigan at the time of his death. Thus, if M1~ could inherit the numberholder’s property under Michigan’s intestate succession laws, then she is the numberholder’s child for the purpose of eligibility for benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

Michigan’s intestacy law lists several ways a child born out of wedlock can be considered a man’s natural child for purposes of intestate succession including: an acknowledgment of parentage by the man and the mother; a written request to correct a birth certificate that results in a substituted certificate; a mutually acknowledged relationship between the man and child that began before the child became 18; a court ordered filiation establishing paternity as provided in the Paternity Act; or a determination by a probate court that a man is the child’s father using the standards and procedures established under the Paternity Act.  See Mich. Comp. Laws Ann. § 700.2114(1)(b) (West). The facts on file do not indicate that any of these statutory criteria for establishing a parent-child relationship for purposes of intestate succession have been met.

However, even though M1~ has not established paternity under any of the above statutory criteria, SSA may still permit him to establish paternity. SSA regulations provides that“[i]f applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” 20 C.F.R. § 404.355(b)(2). See also POMS GN 00306.525(B)(9).

Under the Michigan Paternity Act, paternity is presumed when the DNA results of the mother, child, and alleged father, conducted by a person accredited for paternity determinations, show a 99% or higher probability of paternity. See Mich. Comp. Laws Ann. § 722.716(5) (West).  The Michigan statute does not address whether there is a presumption when DNA testing establishes the likelihood of a grandparent relationship. Id. Absent a presumption of paternity, Michigan law requires that paternity actions be established with a preponderance of the evidence. Bowerman v. MacDonald, 427 N.W.2d 477 (Mich. 1988); POMS PR 01115.025 (PR 12-073). The Michigan Supreme Court has defined a preponderance of the evidence as “that evidence which outweighs that which is offered to oppose it.” Martucci v.Ballenger, 33 N.W. 2d, 789, 791 (Mich. 1948). See also POMS GN 00306.525 (H) (noting that a preponderance of the evidence is more than 50%).

As we advised previously, we believe that the Michigan courts would consider a grandparent’s DNA test as probative of the issue of paternity. POMS PR 01115.025 (PR 12-073). In In Re Estate of Jones, 525 N.W.2d 493, 497 (Mich. Ct. App. 1994), the court stated that “one method of proving paternity in this case is to utilize a DNA profile by using the child’s tissue and the tissue of either decedent or decedent’s mother.” The court provided no reason why decedent’s mother’s DNA profile would be more or less probative than decedent’s father’s DNA profile so it is reasonable to extend the court’s reasoning to find decedent’s father’s DNA profile equally acceptable.

Here, numberholder’s parents’ DNA results^[1] show that there is a 99.997% probability of grandparentage of M1~ Numberholder’s Certificate of Death lists T2~ and M2~ as his mother and father. Thus, there is a definitive and highly probable link between numberholder’s parents and M1~

However, this DNA testing alone is inadequate to show by a preponderance of the evidence that M1~ is decedent’s child. T2~ and M2~ have multiple sons together. The file does not indicate how many sons these two had together. However, even one other son would significantly lower the chance that decedent was M1~’s natural father. A preponderance of the evidence is more than 50%. Therefore, in order to establish numberholder’s paternity, it is crucial to assess the likelihood that any of numberholder’s brothers fathered M1~

Therefore, we suggest that you seek additional information from T1~ and numberholder’s parents. For example, it would be useful to know how many sons T2~ and M2~ had together. A statement from either of them ought to be sufficient to gather that information. Also useful would be a declaration from T1~ stating that she did not have sexual relations with any of numberholder’s brothers at or around the time of M1~’s conception. Kienutske v. Barnhart, 375 F.Supp. 2d 556, 561-62 (E.D. Mich. 2004) (noting that Plaintiff met the statutory requirement of “satisfactory evidence” because she submitted a wealth of uncontradicted evidence that the number holder was the father including an affidavit that she “did not have sexual relations with anyone other than [the numberholder] during the period of time [her] child Jacob was conceived,” and there was “no possibility that anyone other than [the numberholder] was the natural father.”). Finally, additional information concerning numberholder’s brothers is necessary. Statements from each of these individuals explaining where they lived at or around the time that M1~. was conceived and whether they had previous relationships of any type with T1~ will help establish numberholder’s paternity by a preponderance of the evidence.

CONCLUSION

In summary, we believe that the evidence submitted is insufficient to demonstrate that M.P. is numberholder’s child. We recommend requesting additional evidence from T1~, T2~, and M2~, and the numberholder’s brothers. If credible additional evidence is produced, we believe the Agency could conclude by a preponderance of the evidence that the numberholder was M1~’s father.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By:

Michael Gregory

Assistant Regional Counsel

The NH was domiciled in Michigan at the time of his death; therefore, we look to Michigan state laws to determine whether the Claimant is the child of a NH. According to the evidence provided, the NH had not taken any affirmative action in accordance with Michigan’s intestacy law to demonstrate parentage between himself and the claimant. We do not see any basis on which to conclude that the claimant could inherit from the NH, therefore we conclude that the existing evidence is insufficient to establish that the claimant is the NH’s child for purposes of child’s benefits.

You asked whether a child could be paid child’s benefits on the record of a deceased numberholder who is the biological father of the child. At the time of the child’s birth, the child’s mother was married to another man, and currently the child has a court-appointed legal guardian. For the reasons discussed below, we conclude that the existing evidence is insufficient to establish that the claimant is the numberholder’s child for purposes of child’s benefits.

FACTS

N~ (claimant) was born on September XX, 19XX. A birth certificate was provided which listed S~ as the claimant’s mother and J~ as the claimant’s father.

A marriage certificate was also provided showing that S~ and J~ were married on April XX, 19XX demonstrating that they were married at the time of the claimant’s birth.

A DNA test conducted by National Legal Laboratories, Inc. on February XX, 19XX showed a zero probability that J~ was the claimant’s father. A DNA test for M~ the numberholder, showed a 99.99% probability that he was the father of the claimant.

In April 1999, S~ had her parental rights terminated and the claimant was placed under guardianship. An Order Appointing Guardian/Co-Guardian of A Minor from April XX, 19XX ordered that full guardianship be appointed to C1~ and D~. The order also noted that J~ was excluded as the father. Therefore, he was not obligated to pay support to the guardians. Further, the numberholder was listed as absent and thus he did not have to pay support either.

An Order Following Annual Review of Juvenile Guardianship from September xx, 20xx shows that the claimant has been under the temporary guardianship of R~ and C2~ since September xx, 20xx.

The numberholder applied for disability insurance benefits and was subsequently awarded such benefits. On his application, the numberholder did not list the claimant as his child.

On October xx, 20xx, the numberholder, a Michigan resident, died. You indicated that the numberholder was never ordered to pay child support, or otherwise supported the claimant.

ANALYSIS

Section 202(d) of the Social Security Act provides for the payment of benefits to the child of an insured numberholder who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that, when determining whether an applicant is the child of a numberholder, the Agency will apply the law that would be applied to determine the inheritance of intestate personal property by the courts of the state where the numberholder was domiciled at the time of death. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 40.355(b)(4).^[2] Thus, if the claimant could inherit the numberholder’s property under Michigan’s intestate succession laws, he would be considered the numberholder’s child for the purpose of eligibility for benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 400.355(b)(4).

Under Michigan intestacy law, the right to inherit is based on a showing of paternity. MCLS § 700.2114. Both spouses are the presumed natural parents when a child is born during a marriage. MCLS § 700.2114(1)(a). If the child is born during the marriage but is not an issue of that marriage, the marital father can still be considered the child’s natural father if his name appears on the birth certificate. MCLS § 700.2114(1)(b)(ii). J~ was married to the claimant’s mother when he was born and his name appears on the claimant’s birth certificate. Therefore J~ is also considered the claimant’s natural father. MCLS § 700.2114(1)(a); MCLS § 700.2114(1)(b)(ii).

The claimant’s relationship to J~, however, would not preclude a paternal relationship with the numberholder. But, to inherit from the numberholder, the record would need to show that there has been some affirmative action in accordance with Michigan’s intestate succession law. MCLS § 700.2114(b). Specifically, the numberholder could have completed an acknowledgment of parentage; requested and obtained a corrected birth certificate with the numberholder’s name listed as the father; established a mutually acknowledged relationship with the claimant that began before the claimant turned 18; requested an order of filiation establishing a determination of paternity; requested a determination that he is the claimant’s father under the Paternity Act; or requested a determination that he is the father in an action under the Revocation of Paternity Act. MLCS § 700.2114(b)(i)-(vi). But, there is no evidence that the numberholder took any of the above steps. In fact, the numberholder had an opportunity to acknowledge his relationship with the claimant by listing him as a child on the application for disability insurance; however, the numberholder did not do this. Additionally, the 1999 order appointing a guardian for the claimant noted that the numberholder was absent from the claimant’s life.

Michigan’s intestacy law also provides for what happens to inheritance rights when parental rights are terminated. MCLS § 700.2114(c)(3). A permanent termination of parental rights of a minor child by an order of a court of competent jurisdiction prohibits a child from inheriting property from the parent via intestate succession. Id. An Order Appointing Guardian/Co-Guardian of A Minor dated April 6, 1999 noted that J~ was excluded as the father and thus he was not obligated to provide support to the appointed guardians. However, the form could have marked that J~ parental rights were terminated, but this box was left unchecked. It is unclear whether “excluded as father” is equivalent to the termination of parental rights. However, In re T.K. does make clear that the appointment of a juvenile guardianship alone is not tantamount to a de facto termination of parental rights. In re T.K., 859 N.W.2d 208, 212 (Mich. Ct. App. 2014).

In any event, while the status of J~’s parental rights is not entirely clear, we can safely conclude, on the evidence before us, that the numberholder had not taken any affirmative action in accordance with Michigan’s intestacy law to demonstrate parentage between himself and the claimant. As a consequence, we do not see any basis on which to conclude that the claimant could inherit from the numberholder.

CONCLUSION

For the reasons discussed above, we conclude that the existing evidence is insufficient to establish that the claimant is the numberholder’s child for purposes of child’s benefits.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

 

By: ___________________________

OGC Legal Intern

We believe that a Michigan court would find that Natalie’s DNA results provide sufficient evidence of paternity to satisfy the preponderance of evidence test. We also believe that a Michigan Court would find by a preponderance of the evidence that Philden Jr. is Philden Sr.’s child and, therefore, had inheritance rights with respect to Philden Sr.’s estate. As such, you could reasonably conclude that Philden Jr. is Philden Sr.’s child for purposes of establishing eligibility to child’s insurance benefits.

ISSUE

Tianne filed an application for child’s benefits on behalf of her son, Philden Jr. claiming that he was the surviving child of Philden Sr. You asked us whether DNA results that showed a 99.34% probability of relationship between Natalie , Philden Sr.’s mother and Philden Jr. would meet the clear-and-convincing standard to establish paternity under Michigan law. As we explained previously, paternity actions in Michigan need only be established by a preponderance of the evidence. Since the evidence shows that Philden Sr. lived in Michigan when he died and did not have any brothers (a fact noted but not verified), we conclude that a Michigan court would find that Natalie’s DNA results would be sufficient to establish paternity.

BACKGROUND

Philden Sr. passed away on May 8, 2009. At the time of his death, he was a resident of Michigan. According to his death certificate, Natalie is his mother. Philden Jr. was born on May , three weeks after Philden Sr. died.

On July 2, 2009, Tianne filed an application for child’s insurance benefits on behalf of her son, Philden Jr. Tianne claimed that Philden Jr. was entitled to benefits on Philden Sr.’s account. The application was denied because there was not sufficient evidence that Philden Jr. was Philden Sr.’s child. Two years later, Natalie , Philden Sr.’s mother, took a DNA test. Tianne filed another application for child’s benefits in September 2011. This time Tianne submitted the results of Natalie’s DNA analysis from Genetic Testing Laboratories. The statistical results of Natalie’s DNA test showed a 99.34% percent probability that Natalie was biologically related to Philden Jr.  

DISCUSSION

An applicant for child’s insurance benefits must be the wage earner’s “child” as that term is defined by the Social Security Act. 42 U.S.C. §§ 416(e), 416(h)(2)-(3). According to the Social Security Act, a child applicant can obtain benefits on the account of a wage earner if the child is entitled to a child’s share of the wage earner’s intestate personal property under the relevant State law. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); POMS GN 00306.055(A). If the wage earner is deceased, SSA applies the intestacy laws of the state in which the wage earner had a permanent home at the time of his death. 20 C.F.R. § 404.355(b)(1). According to Philden Sr.’s death certificate, he was a resident of Michigan when he died. We assume, for purposes of this memo, that Philden Sr. had a permanent home in Michigan at the time of his death. Therefore, Michigan intestacy laws would apply to decide whether Philden Jr. is Philden Sr.’s child.

Michigan’s intestacy law lists several ways a child born out of wedlock can be considered a man’s natural child for purposes of intestate succession including: an acknowledgment of parentage by the man and the mother; a written request to correct a birth certificate that results in a substituted certificate; a mutually acknowledged relationship between the man and child that began before the child became 18; a court ordered filiation establishing paternity as provided in the Paternity Act; or a determination by a probate court that a man is the child’s father using the standards and procedures established under the Paternity Act. See Mich. Comp. Laws Ann. § 700.2114 (West 2012). The evidence contained in the file does not indicate that any of the above statutory criteria for establishing a parent-child relationship for purposes of intestate succession have been met.

Even though Philden Jr. has not established paternity under any of the above statutory criteria, SSA may still permit him to establish paternity. SSA regulations provides that“[i]f applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” 20 C.F.R. § 404.355(b)(2); See also POMS GN 00306.525(B). As we explained previously, Michigan law provides that, in paternity actions the less stringent preponderance-of-the-evidence standard applies. See Bowerman v. MacDonald, 427 N.W.2d 477, 484 (Mich. Jul. 13, 1988) (“[T]he standard of proof in a paternity trial is not proof beyond a reasonable doubt, but rather the lesser burden of proof by a preponderance of the evidence.”); POMS PR 01115.025 (PR 07-165). The Michigan Supreme Court has defined a preponderance of the evidence as “that evidence which outweighs that which is offered to oppose it.” Martucci v.Ballenger, 33 N.W. 2d 789, 791 (Mich. 1948); See also POMS GN 00306.525 (H) (noting that a preponderance of the evidence is more than 50%).

Under the Michigan Paternity Act, paternity is presumed when the DNA results of the mother, child, and alleged father, conducted by a person accredited for paternity determinations, show a 99% or higher probability of paternity. See Mich. Comp. Laws Ann. § 722.716 (West 2012). The Michigan statute does not address whether there is a presumption when DNA testing establishes the likelihood of a grandparent relationship. Id. As we advised previously, we believe that a Michigan court would consider a grandparent’s DNA test as probative of the issue of paternity. POMS PR 01115.025 (PR 07-165; PR 11-096). In In Re Estate of J~, 525 N.W.2d 493, 497 (Mich. Ct. App. 1994), the court stated that “one method of proving paternity in this case is to utilize a DNA profile by using the child’s tissue and the tissue of either decedent or decedent’s mother.” Here, Natalie’s DNA results Natalie’s DNA testing was conducted at Genetic Testing Laboratories, an American Association of Blood Banks (AABB) testing Facility. Under Michigan law, blood testing, tissue typing, and DNA testing performed for purposes of determining paternity must be “conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks.” Mich. Comp. Stat. Ann. § 711.716(b)(2) (West 2012). The DNA test report does not state that the testing procedure was conducted by a person who was accredited for paternity determinations by the AABB, but does state that the center is accredited by the AABB. Absent any evidence in the file that would call into question the qualifications of the testing staff or the authenticity of the report, we believe it would be reasonable to conclude that the testing satisfied the requirements of Michigan law. show a 99.34% likelihood that she is biologically related to Philden Jr. Because Philden Sr.’s death certificate confirms that Natalie is his mother, Natalie’s DNA results indicate a high probability that she is Philden Jr.’s grandmother. If Tianne’s statement, that Philden Sr. did not have any brothers, is taken as true, we can assume that Philden Sr. did not have any brothers that could be Philden Jr.’s natural father. Therefore, you could conclude that Natalie’s DNA results would be sufficient to establish that Philden Sr. is Philden Jr.’s father. 

Assuming that all information provided is true and accurate, we believe that a Michigan Court would find by a preponderance of the evidence that Philden Jr. is Philden Sr.’s child and, therefore, had inheritance rights with respect to Philden Sr.’s estate. As such, you could reasonably conclude that Philden Jr. is Philden Sr.’s child for purposes of establishing eligibility to child’s insurance benefits.

CONCLUSION

In summary, we believe that a Michigan court would find that Natalie’s DNA results provide sufficient evidence of paternity to satisfy the preponderance of evidence test. Assuming that Philden Sr., had a permanent home in Michigan at the time of his death, and did not have any brothers, you could reasonably conclude that Philden Sr. fathered Philden Jr. and thus that Philden Jr. had the right to inherit from Philden Sr.

Grace M. Kim

Acting Regional Chief Counsel V

By:______________

Kiywhanna Kellup

Assistant Regional Counsel.

We believe that a Michigan court would not decline to establish paternity where, as here, an unmarried woman was impregnated using a known donor’s sperm.  Therefore, if you credit the evidence submitted in this case, it would appear to be sufficient to find that NH is Claimant’s natural father. Claimant should be considered NH’s child under the Social Security Act (Act), as we believe that Claimant would be able to inherit as NH’s child under Michigan law. 

QUESTION PRESENTED

You asked whether, under Michigan law, the claimant, Jack (Claimant), is the child of the deceased number holder (NH), David , for purposes of an award of child’s insurance benefits based on the use of NH’s donated sperm to impregnate Claimant’s mother, Elinor .

 

SHORT ANSWER

Under the particular facts of this case, Claimant should be considered NH’s child under the Social Security Act (Act), as we believe that Claimant would be able to inherit as NH’s child under Michigan law. 

SUMMARY OF EVIDENCE

On December 15, 2007, NH and Elinor signed a “Sperm Donor Agreement” whereby NH agreed to donate his sperm to Elinor for the purpose of artificial insemination. NH and Elinor agreed to a number of terms, including that:

NH would not assert parental rights over any resulting child(ren), nor demand or compel any guardianship, custody, or visitation rights;

NH would terminate his parental rights in the event that Elinor chose another person to legally adopt the resulting child(ren);

No father would be named on the birth certificate;

NH’s identity would be made known to the resulting child(ren) only at a time and manner chosen by Elinor; and

Any resulting child(ren) would maintain a relationship with NH only upon Elinor’s written consent, and if such a relationship were formed the parties agreed that it would be similar to that of an uncle rather than a parent.

Claimant was born to Elinor in Michigan in September. No father was named on the birth certificate. NH died on August 14, 20xx. NH’s obituary indicated that he lived in Michigan and identified Claimant as his son.

On November 3, 2010, Elinor filed an application for child’s benefits on NH’s record on behalf of Claimant. Elinor stated that there is no medical evidence documenting her insemination with NH’s sperm because the process took place at her home, and the only people present were NH, Elinor, and a woman who was Elinor’s same-sex partner at the time. Elinor stated that she was involved with no men when the conception occurred and had not been for some period of time, such that no other man’s sperm had been available to her.

Witness statements supporting Claimant’s application were submitted by:

NH’s sister;

NH’s same-sex partner;

Claimant’s maternal grandparents; and

A doctor.

NH’s sister, Carol , stated that NH acknowledged Claimant as his child to her orally and in writing via e-mail, but she no longer had the e-mails. Elinor stated that NH and Claimant had regular contact; NH did not provide any support for Claimant; and Claimant never lived with NH. Elinor stated that Claimant referred to NH as uncle, not dad.

NH’s same-sex partner, William, stated that NH acknowledged Claimant as his child to him orally, but not in writing. Elinor stated that NH may have acknowledged Claimant as his child in writing to other people, who he would contact to find out if that was the case. The file contains no such writings. Elinor stated that NH referred to Claimant as his son and Claimant referred to NH as his uncle, but when Claimant was older NH and Elinor intended to tell Claimant that NH was his father. Jack stated that Claimant and NH had regular contact; Claimant never lived with NH; NH babysat Claimant; and NH did not provide any support for Claimant. Mr. S~ stated that, before NH died, he wanted Mr. S~ to give Claimant certain personal items, including a roc Davidchair that NH had received from his father and wanted passed down to his family, i.e. father to son. Mr. S~ stated that the funeral home has NH’s DNA, which could be used to prove paternity if necessary.

Claimant’s maternal grandparents stated that Elinor and NH acknowledged that NH was Claimant’s father orally, but not in writing. They stated that NH referred to Claimant as his son and Claimant referred to NH as his uncle, but when Claimant was older NH and Elinor intended to tell Claimant that NH was his father. They stated that Claimant and NH had regular contact; Claimant never lived with NH; and NH did not provide any support for Claimant, but NH occasionally babysat Claimant.

A doctor, Camille , related her understanding that Claimant was conceived at home using NH’s donated sperm and an insemination kit. Dr. F~ stated that Elinor confirmed Claimant’s biological parentage to her prior to his birth and that NH did so orally.

The file contains a State of Michigan Affidavit of Parentage, which identifies NH as Claimant’s father and Elinor as Claimant’s mother. It is not signed, dated, or notarized. Apparently, NH and Elinor were in the process of completing this document, but did not do so before NH died. Claimant’s maternal grandmother stated that NH was in the process of having a lawyer prepare this document, but NH died before he could sign it. It appears that neither Elinor nor any other witness offered an explanation regarding the origin of or circumstances surrounding this document.

DISCUSSION

Under the Act, a claimant who is the “child” of an individual who died a fully or currently insured individual may be entitled to benefits. 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. §§ 404.350, 404.355, 404.361. To determine whether the claimant is the insured’s child, the Agency applies the law of intestacy of the state in which the insured was domiciled at the time of his death. A claimant who is not the child of the insured under the state law of intestacy may still be deemed to be the insured’s child if the insured acknowledged in writing that the claimant is his son.  42 U.S.C. § 416(h)(3)(C)(i)(I); POMS GN 00306.001(C)(1)(b), 00306.105. We do not reach the question of whether a written acknowledgment could be found in this case because we believe that the evidence is sufficient to establish inheritance rights.

 42 U.S.C. § 416(h)(2)(A); POMS GN 00306.001(C)(1)(a).

Michigan law provides that, for purposes of intestate succession, an individual is the child of his natural parents regardless of their marital status An exception to this general rule exists where the parental rights of a minor child have been permanently terminated by: a court order; a release for purposes of adoption given to the family independence agency or a licensed child placement agency or before a court; or “by any other process recognized by the law governing the parent-child status at the time of termination . . . . ”  Id. at § 700.2114(3). and enumerates any of the ways in which the parent-child relationship may be established. Mich. Comp. Laws Ann. § 700.2114(1); see Matter of V~’s Estate, 327 N.W.2d 340, 342 (Mich. Ct. App. 1982) (explaining that it is not sufficient only to demonstrate that an individual is a natural parent because, where the statue expressly mentions the circumstances under which a man is considered to be the father of a child born out of wedlock, the statute implicitly excludes all other circumstances). When a child is born out of wedlock, a man is considered to be the child’s natural father for purposes of intestate succession if any of the following occur:

1. 1. 

   The man and the child’s mother acknowledge the child as his child by completing an acknowledgement of parentage as prescribed in the Acknowledgment of Parentage Act;

2. 2. 

   The man and the child’s mother make a written request for a correction of birth certificate;

3. 3. 

   The man and the child have established a mutually acknowledged relationship of parent and child that begins before the child becomes age 18 and continues until terminated by the death of either;

4. 4. 

   The man is determined to be the child’s father and an order of filiation establishing that paternity is entered; or

5. 5. 

   Regardless of the child’s age or whether the alleged father has died, the court with jurisdiction over probate proceedings relating to the decedent’s estate determines that the man is the child’s father using the standards and procedures established under the Paternity Act. 

Mich. Comp. Laws Ann. § 700.2114(1)(b). 

In this case, none of the preceding circumstances occurred. Although there is some evidence that NH and Elinor may have intended to complete an acknowledgement of parentage form, they did not do so. In order to be valid and effective, an acknowledgement of parentage form must be signed by the mother and father, and those signatures must be notarized. Id. at § 722.1003(2). Here, the form is not signed, dated, or notarized. Therefore, the form does not meet the statutory requirements.

However, consistent with Michigan intestacy law, an Agency adjudicator also can find that paternity is established by a preponderance of the evidence under Michigan’s Paternity Act.  POMS GN 00306.525(H); see 20 C.F.R. § 404.355(b)(2) (explaining that, if the applicable state law requires a court determination of paternity, the Agency will decide paternity using the same standard of proof that the state court would use); Mich. Comp. Laws Ann. § 700.2114(1)(b)(v); Smith v. Robbins, 283 N.W.2d 725, 730 (Mich. Ct. App. 1979) (stating that, under the Paternity Act, the standard of proof in a paternity proceeding is proof by a preponderance of the evidence).  The Paternity Act defines a child born out of wedlock as “a child begotten and born to a woman who was not married from the conception to the date of birth of the child . . . . ” Mich. Comp. Laws Ann. § 722.711(a). It appears that an action under the Paternity Act would be the proper means for determining NH’s paternity of Claimant. See Ssyrkowski v. Appleyard, 362 N.W.2d 211, 214 (Mich. 1985) (holding that the trial court had subject matter jurisdiction over a biological father’s action under the Paternity Act where the biological mother and father had entered into a surrogate parenting agreement).

Our research has not revealed any Michigan legal authority addressing the nature of the relationship between a sperm donor and the resulting child where the child’s mother was unmarried.  Michigan statutes address artificial insemination involving a married couple, providing that a child conceived by a married woman with the consent of her husband following the utilization of assisted reproductive technology is considered to be the legitimate child of the husband and wife. Mich. Comp. Laws Ann. § 333.2824(6).  Michigan statute also addresses surrogacy arrangements, providing that a surrogate parentage contract is void and unenforceable as contrary to public policy and that a surrogate parentage contract entered into for compensation is unlawful. Mich. Comp. Laws Ann. §§ 722.855, 722.859.  Specifically, Michigan law expresses harsh criticism of surrogacy agreements based on concerns about preventing children from becoming commodities, protecting the best interest of the child as opposed to the contracting parents’ desires and interests, and preventing the exploitation of women. See Doe v. Attorney Gen., 487 N.W.2d 484, 486-89 (Mich. Ct. App. 1992). Additionally, Michigan case law disfavors attempts by a child’s parents to bargain away the child’s right to support, although neither the Michigan legislature nor the courts have addressed this issue in the context of artificial insemination. In re B~, 788 N.W.2d 697, 699 (Mich. App. Ct. 2010); Estate of K~, 327 N.W.2d 437, 439 (Mich. Ct. App. 1983); Van Laar v. Rozema, 288 N.W.2d 667, 669 (Mich. Ct. App. 1980). 

The Restatement of Property explains that much of the debate about the role of a known sperm donor in the rearing of a child has turned on the intentions of the birth mother, her lesbian partner, and the sperm donor at the time of conception and whether the courts should recognize that understanding. Restatement (Third) of Property § 2.5 cmt. l. A uniform statute on point, the Uniform Parentage Act, expressly provides that, where a child is conceived as the result of assisted reproduction, a donor of sperm or egg is not the parent of the resulting child. Unif. Parentage Act § 702. But Michigan is not among the nine states that have adopted the Uniform Parentage Act. Unif. Parentage Act § 702.

In S~, a case involving artificial insemination and a surrogacy agreement (before such agreements were banned), the Michigan Supreme Court held that the clear language of the Paternity Act permits a court to decide the paternity of children born out of wedlock. S~, 362 N.W.2d at 214. The court rejected arguments that the legislature had not intended to address these unusual types of arrangements. Id. at 213-14. Given this holding, and because Michigan law disfavors surrogacy contracts as well as agreements that purport to limit a child’s right to support, we believe that a Michigan court would not decline to establish paternity where, as here, an unmarried woman was impregnated using a known donor’s sperm.  Therefore, if you credit the evidence submitted in this case, it would appear to be sufficient to find that NH is Claimant’s natural father.

CONCLUSION

In sum, Claimant should be considered NH’s child for purposes of an award of child’s insurance benefits based on the use of NH’s donated sperm to impregnate Claimant’s mother.  

Donna L. Calvert

Regional Chief Counsel, Region V

By__________

Rachel C. Steiner

Assistant Regional Counsel

We believe that a Michigan court would find that the DNA test results and statements made by Wayne’s mother to be sufficient to establish a preponderance of evidence of paternity.  The DNA test results and statements by Sharon constitutes a preponderance of evidence that Wayne is Rashad’s biological father. Therefore, Rashad is entitled to child insurance benefits on the NH's record under the Social Security Act.

Twana filed an application for child’s insurance benefits on behalf of her son, Rashad , claiming that Rashad is the surviving child of Wayne .  You asked us whether DNA test results indicating a 99.998% probability that Wayne’s parents, Sharon and Walter , were the grandparents of Rashad, in combination with statements made by Sharon, constitute a preponderance of evidence that Wayne is Rashad’s biological father. We believe that, if you have sufficient evidence that Sharon and Walter are Wayne’s parents, the DNA test results and statements by Sharon would constitute a preponderance of evidence that Wayne is Rashad’s biological father. Thus, Rashad would be entitled to child’s insurance benefits.

BACKGROUND

Rashad was born to Twana in August. His birth certificate did not list the name of a biological father. 

According to the file, Wayne was domiciled in Michigan at the time of his death in December 2000. Sharon , who has alleged that she is Wayne’s mother, stated that Wayne had told her in 1999 that he had fathered two sons, born within a few months of each other. Wayne’s Master Beneficiary Record indicates that three children have been awarded benefits as his surviving children: a female born in March , a female born in March , and a male born in June . 

Sharon stated that Wayne was an only child and did not have any brothers. Sharon did not meet Twana or Rashad until October 4, 2010. On October 7, 2010, Twana filed an application for child’s insurance benefits on behalf of Rashad. Twana, Rashad, Sharon, and Walter , Wayne’s alleged biological father, underwent DNA testing at DNA Diagnostics Center on October 13, 2010.  The results, which a Laboratory Director verified as correct on October 21, 2010, indicated that the probability that Sharon and Walter were Rashad’s biological grandparents was 99.998%. 

DISCUSSION

An applicant for child’s insurance benefits must be the wage earner’s “child” as that term is defined by the Social Security Act. 42 U.S.C. §§ 416(e), 416(h)(2)-(3). Under the Social Security Act, an applicant can obtain benefits on the account of a wage earner if the applicant is entitled to a child’s share of the wage earner’s intestate personal property under the relevant State law. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); POMS GN 00306.055(A).  If the wage earner is deceased, SSA applies the intestacy laws of the state in which the wage earner had a permanent home at the time of his death. 20 C.F.R. § 404.355(b)(1).  You indicated that Wayne was domiciled in Michigan at the time of his death. Therefore, Michigan intestacy laws apply to decide whether Rashad is his “child.”

Under Michigan intestacy law, if a child is born out of wedlock, a man can be considered the child’s natural father for purposes of intestate succession in several enumerated circumstances, including when a court has entered an order of filiation establishing paternity, or when a probate court determines that a man is the child’s father using the standards and procedures established under the Paternity Act.  See Mich. Comp. Laws Ann. § 700.2114 (West 2011). The material submitted to our office does not indicate that any of the statutory methods of establishing a parent-child relationship for purposes of intestate succession have been satisfied. 

Although no court has made a determination regarding Rashad’s paternity, SSA’s regulations explain that “[i]f applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” 20 C.F.R. §404.355(b)(2).  POMS GN 00306.525(B) reiterates this principle, stating that for claims filed on or after November 27, 1998, or pending on that date, a State court order adjudicating paternity need not actually be obtained, and an SSA adjudicator may independently determine paternity by applying relevant state law. 

Michigan statutory law only presumes paternity if DNA testing of the mother, child, and alleged father, conducted by a person accredited for paternity determinations, shows a 99% or higher probability of paternity. See Mich. Comp. Laws Ann. § 722.716 (West 2011).  The Michigan statute does not address any presumption when DNA testing establishes the likelihood of a grandparent relationship. Id. Absent a presumption of paternity, paternity actions are decided under a preponderance of the evidence standard. Bowerman v. MacDonald, 427 N.W.2d 477 (Mich. 1988); POMS GN 00306.525(H); POMS PR 01115.025 (PR 07-165); Burnside v. Green, 431 N.W.2d 62, 64 (Mich. Ct. App. 1988), citing Schigur v. Keck, 286 N.W.2d 917, 919 (Mich. Ct. App. 1979) (witnesses can testify to physical similarities). 

As we advised previously, we believe that a Michigan court would consider the results of DNA testing on a child’s grandparents as probative of the question of paternity.  POMS PR 01115.025 (PR 07-165). In In re Estate of J~, 525 N.W.2d 493, 497 (Mich. Ct. App. 1994), the Court of Appeals of Michigan stated that “one method of proving paternity in this case is to utilize a DNA profile by using the child’s tissue and the tissue of either decedent or decedent’s mother.” Similarly, in Outwater ex rel. McClinchey v. Secretary of Health & Human Services, 894 F. Supp. 1114, 1118 (E.D. Mich. 1995), the United States District Court for the Eastern District of Michigan noted that a paternity judgment had been based on testing of the deceased wage-earner’s parents.  Based on these cases, it appears that a Michigan court would consider the DNA test results of a child’s putative grandparents when determining paternity.

The DNA test results in this case indicate a high probability that Sharon and Walter are Rashad’s grandparents. Notably, Sharon stated that Wayne was an only child and did not have any brothers. Thus, if Sharon’s statement is taken as true, it rules out the possibility that Wayne had a brother who could be the natural father of Rashad. Assuming you have satisfactory evidence that Sharon and Walter are Wayne’s parents, the DNA evidence would be sufficient to show Wayne is Rashad’s father. If you do not have evidence of Wayne’s relationship to Sharon and Walter, you may want to request a copy of Wayne’s birth or death certificate to verify that Sharon and Walter are Wayne’s parents.

Under Michigan law, blood testing, tissue typing, and DNA testing performed for purposes of determining paternity must be “conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks.” Mich. Comp. Stat. Ann. § 711.716(b)(2) (West 2011).  The Internet site for DNA Diagnostics Center has a link to a certificate of accreditation by the American Association of Blood Banks (AABB) for relationship testing activities. See AABB Accreditation (visited Apr. 25, 2011) <http://www.dnacenter.com/images/AABB-cert.jpg>.  The Internet site for the AABB also indicates that DNA Diagnostics Center has been accredited for DNA relationship testing. See AABB http://www.aabb.org/SA/FACILITIES/Pages/Accredited Relationship (DNA) Testing Laboratories (visited Apr. 25, 2011) < RTestAccrFac.aspx>.  The DNA test report does not state that the testing procedure was conducted by a person who was accredited for paternity determinations by the AABB, but does state that the center is accredited by the AABB. Absent any evidence in the file that would call into question the qualifications of the testing staff or the authenticity of the report, we believe it would be reasonable to conclude that the testing satisfied the requirements of Michigan law. 

CONCLUSION

In sum, we believe that a Michigan court would find that the DNA test results and statements made by Wayne’s mother would be sufficient to establish a preponderance of evidence of paternity.  Accordingly, if satisfactory documentation verifies that Sharon and Walter are Wayne’s parents, you can find that Rashad has established that he is entitled to child insurance benefits under the Social Security Act. 

Donna L. Calvert III

Regional Chief Counsel, Region V

By__________

Deborah H. Lee

Assistant Regional Counsel

In Michigan, DNA testing showing a 97.6 percent probability that the claimant and another child already adjudicated to be the deceased number holder's son share a common father would be sufficient when combined with other evidence to meet the preponderance of the evidence standard.

Sibling DNA test results show that Bryan and Scott share a 97.6% chance of a having a common father. Before he died, Daniel was adjudicated to be Scott's father. And an address book allegedly belonging to Daniel contains Bryan's and Scott's names and birthdates under the words "MY SONS." You asked whether this and other evidence meets the clear-and-convincing standard for paternity in Michigan. We reiterate our previous advice that in Michigan, paternity for children born out-of-wedlock need only be established by a preponderance of the evidence. We again suggest that the POMS be updated to reflect this standard. Under this standard, assuming that Daniel lived in Michigan when he died (a fact assumed but not explicitly stated), we conclude that a Michigan court would find paternity has been established.

BACKGROUND

In November, Bryan was born to Sandra. Sandra was unmarried. But Daniel had lived with Sandra for an unknown period of time before Bryan was born, according to Daniel's sister. Daniel's mother met Sandra after she was pregnant. Daniel continued to live with Sandra until he died in 1995, according to both Daniel's sister and mother. And they said that, before and after Bryan was born, Daniel referred to Bryan as his son, and he never denied it. After Daniel died, his mother and sisters became, and continue to be, Bryan's legal guardians. Sandra's whereabouts are unknown.

Scott was born in 1981 to Donna. Daniel acknowledged to the Muskegon County Court that Scott was his child. A similar petition to have Bryan declared Daniel's child was dismissed upon Daniel's death. But testing of Scott's and Bryan's DNA showed a 97.6% chance that they had the same father.

After Daniel died, his mother produced an address book that she claimed was his. The address book page captioned "This book belongs to" is empty. But the page captioned "Birthdays & Important Dates" has written on it:

Daniel had a younger brother, born in August . The younger brother was 18 when Bryan was born, but was only seven when Scott was born. Daniel's sister claims that Daniel's brother could not be Bryan's father because Daniel's family did not meet Sandra until she was already pregnant.

DISCUSSION

The Act Provides Three Relevant Ways To Establish Paternity.

The Social Security Act provides three ways relevant here to establish paternity. First, the Act provides that paternity is established if, "in the case of a deceased individual-such insured individual-had acknowledged in writing that the applicant is his or her son or daughter."

Second, the Act provides that paternity is established if:

in the case of a deceased individual-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.

You asked about the third method, under which the Act provides that:

In determining whether an applicant is the child or parent of a fully or currently insured individual . . . 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 [the insured individual] was domiciled a the time of his death. . . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

The regulations explain that, under this third method, "[i]f applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity." The regulations further provide that, "[i]f the insured is deceased, we apply the law of the State where the insured had his or her permanent home when he or she died." It appears from the material that we received that Daniel lived in Michigan when he died.

The Current Evidentiary Standard in Michigan for Determining Paternity for Intestate Succession of a Child Born Out-of-Wedlock is a Preponderance of the Evidence, Not (as the POMS Says) Clear and Convincing Evidence.

POMS GN 00306.525H currently states that, in Michigan, "after the death of the father paternity is established by clear and convincing evidence." We have previously advised that this standard is no longer correct and should be updated. We reiterate that request here.

As we explained previously, Michigan law currently provides that, for children born out-of-wedlock after the death of the father, the less stringent preponderance-of-the-evidence standard applies. Prior to amendments to the statute that took effect April 1, 2000, there were no provisions in Michigan law for determining paternity after the death of a putative father. It was thus reasonable to infer that courts would have applied a stricter standard of proof in those cases. Effective April 1, 2000, however, the new law now provides that, in determining child status for inheritance, the probate court applies the standards established under the procedures of the Paternity Act, "whether or not the alleged father has died." Under the Paternity Act, paternity actions are decided under a preponderance of the evidence standard. The Michigan Supreme Court has defined a preponderance of the evidence as "such evidence as when weighed with that opposed to it has the more convincing force." Accordingly, we again suggest revising POMS GN 00306.525H, as follows

Effective April , when a child was born out-of-wedlock, the SSA adjudicator can find that paternity is established if "a preponderance of the evidence" establishes paternity, even if paternity is established after the death of the father. "A preponderance of the evidence" is more than

Although Daniel died in 1995, the Agency will apply the current State law to adjudicate the claim, at least where, as here, it is more favorable to the claimant. Thus, the issue here is whether a paternity is established by a preponderance of the evidence.

Paternity is Established by a Preponderance of the Evidence.

Although you were primarily interested in whether Bryan could be entitled to benefits as Daniel's child under the laws of intestacy, we begin with the written notation in the address book allegedly belonging to Daniel, since this could be construed as an "acknowledge[ment] in writing that the applicant is his . . . son."

Conflicting factors abound as to whether the address book establishes paternity. The nondescript pocket address book is a most informal format. On the other hand, Daniel's mother stated that the address book was Daniel's. And the address book does contain the first names and birth dates of two children who were stated to be the son's of the address book's owner. The Act requires only a written acknowledgement of paternity, and the POMS explains that the acknowledgement does not need to be in any form and need not be signed.

It is also possible that the Agency could find the evidence of paternity is sufficient under the second provision of the Act described above based on satisfactory evidence, as Daniel was living with Bryan when he died. But we need not reach these issues since it appears, based on the other evidence, that Bryan could inherit from Daniel as his child.

The most persuasive other evidence is, of course, the DNA test results showing that Bryan and Scott had a 97.6% chance of having the same father. While he was alive, Daniel acknowledged in court that he was Scott's father. (Acknowledgement in court establishes paternity in Michigan.) There is thus a 97.6% chance that Daniel was also Bryan's father.

The Michigan statute only presumes paternity if DNA testing of the father, mother, and child shows a 99% or higher probability of paternity. But we have previously noted the willingness of Michigan courts to look beyond the statutory presumptions to establish paternity. For example, we have opined three times that Michigan courts would accept grandparent DNA testing to establish paternity. The same principle applies here-just as the Michigan courts would accept grandparent DNA testing, so too would they accept sibling DNA testing. And although the 97.6% probability of paternity here is lower than the 99% statutory threshold for presumptive paternity, the DNA testing may still be considered with the other evidence to establish paternity by a preponderance of the evidence.

The other evidence is consistent with the DNA test results. For example, Daniel's mother and sister both stated that Daniel acknowledged Bryan was his son when Bryan's mother was pregnant, and he later always introduced Bryan as his son, and never denied Bryan was his son. Daniel lived with Bryan's mother before Bryan was born in 1991, and then with Bryan and his mother until Daniel died in 1995. Since Daniel died, Daniel's mother and sisters have had custody of Bryan. We believe that a Michigan court would find the DNA and other evidence sufficient in this case to establish paternity.

CONCLUSION

In sum, we believe that a Michigan court would find that the evidence provides sufficient evidence of paternity to satisfy the preponderance-of-evidence test. Accordingly, assuming that Daniel lived in Michigan when he died, Bryan has established that Daniel is his father under the Social Security Act. We further recommend revising POMS GN 00306.525 to reflect the current standard of proof for establishing paternity is a preponderance of the evidence.

Donna L. Calvert III

Chief Counsel

By__________

Charles R. Goldstein

Assistant Regional Counsel

The evidence of paternity in this case consists of a statement of the child's mother and a statement from the mother of the deceased NH that her son told her that the child claimant was his prior to his death. This evidence does not constitute clear and convincing evidence of paternity under Michigan law.

You have asked whether an illegitimate posthumous child can be entitled to child's insurance benefits on the record of a deceased wage earner based on statements made by the mother of the deceased and by the mother of the child. Based upon our review of the law and facts as you presented them, the available evidence does not establish paternity.

FACTUAL BACKGROUND

The materials you sent us indicate that the field office in St. Louis, Missouri denied Esther 's application for posthumous child insurance benefits in 1997 on behalf of her son, Antonio, based on the record of deceased wage earner, Joseph. Joseph was domiciled in Michigan at the time of his death on December 28, 19xx. Antonio was born in February, in St. Louis, Missouri. Esther and Joseph never lived together and he never provided support to Esther. The deceased wage earner's mother, Annie , provided a relationship statement in 1997. Esther filed a second application for Antonio on September 11, 2001, and stated therein that she had no new evidence to submit. The Social Security Administration took a statement from the deceased wage earner's mother who had provided the relationship statement in 1997. In both statements, she indicated that her son acknowledged prior to his death that Esther was carrying his child.

ANALYSIS

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child's insurance benefits. This section provides that every child (as defined in section 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who is "legitimate" or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

An "illegitimate" child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured's death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, prior to his death: (a) acknowledged in writing the child as his child; (b) been decreed by a court to be the child's parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Section 202(d)(3) of the Act provides that any child who meets the tests in sections 216(h)(2) or (h)(3) "shall be deemed to be the legitimate child of such individual."

In this case, none of the above requirements can be met by Antonio. An "illegitimate" child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could inherit personal property under "such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such individual . . . was domiciled at the time of his death . . ." Id. An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). In this case, you have indicated that the deceased number holder was domiciled in Michigan; therefore, Michigan intestacy law applies.

Under Michigan intestate law, if a child is born out of wedlock or if a child is born or conceived during a marriage but is not the issue of that marriage, the man is considered to be the natural father of that child for all purposes of intestate succession if any of the following occurs:

(a) The man joins with the mother of the child and acknowledges that child as his child by completing an acknowledgment of parentage as prescribed in the acknowledgment of parentage act.

(b) The man joins with the mother in a written request for a correction of certificate of birth pertaining to the child that results in issuance of a substituted certificate recording the birth of the child.

(c) The man and the child have borne a mutually acknowledged relationship of parent and child that began before the child became age 18 and continued until terminated by the death of either.

(d) The man has been determined to be the father of the child and an order of filiation establishing that paternity has been entered as provided in the paternity act.

See M.C.L.A. § 700.111(4) (West, WESTLAW through 2001).

In this case none of the preceding situations under Michigan law are present. Under the POMS GN 00306.525, an SSA adjudicator may use the evidentiary standard of clear and convincing evidence to determine the relationship of the posthumous child in the absence of the presumptions under Michigan law. Clear and convincing evidence requires more certainty on the part of the fact-finder than a "preponderance of the evidence" standard (more than 50 percent), but less certainty than the "beyond a reasonable doubt" standard. See POMS GN 00306.525. Furthermore, Michigan courts have defined clear and convincing evidence as evidence that produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct, and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. See Kefgen v. Davidson, 241 Mich. App. 611, 625, 617 N.W.2d 351, 360 (2000); In re M~, 450 Mich. 204, 227, 538 N.W.2d. 399 (1995).

Our research suggests that there is insufficient evidence in this case to establish paternity under Michigan law. The Court of Appeals of Michigan previously held that evidence that the deceased putative father had told friends and relatives that the then unborn out-of-wedlock child was his, had discussed plans to marry the mother, and had made payments for the mother's medical care during her pregnancy was insufficient to establish heirship of the child for purposes of intestate succession. See Estate of Vellenga v. Thistlethwhite, 120 Mich. App. 699, 699-700, 327 N.W. 2d 340, 340-341 (1983).

In the Sixth Circuit case of Chester for Chester v. Secretary of HHS, 808 F.2d 473 (6th Cir. 1987), the Court found that Plaintiff did not establish by clear and convincing evidence that the deceased number holder was the father of the illegitimate child. Id. at 480. In C~, the putative father's gift of thirty dollars to the mother and his statements to his parents about having fathered a child, failed to establish paternity of the Plaintiff's illegitimate child by clear and convincing evidence for purpose of determining whether the child was entitled to survivor's benefits upon the putative father's death. Id. The Court also held that the absent father must provide at least some nominal contribution to the support of the expectant mother in order for the posthumous illegitimate child to be eligible for survivor's benefits. Id. at 477.

Other circuits have addressed similar cases. In I~ on Behalf of Hayes v. Heckler, 797 F.2d 508 (7th Cir. 1986), the Seventh Circuit Court of Appeals found that the plaintiff did not establish by clear and convincing evidence under Missouri's laws of intestate succession that the deceased number holder was the father of her illegitimate child. Id. at 511-12. In I~, the plaintiff had informed the insured that she might be pregnant two weeks before his death but she was unable to inform him that she was in fact pregnant before he died. She alleged that he nonetheless "knew" that he was the father. She offered evidence concerning the statements and actions of third parties as well as photographic evidence to support her claim. An administrative law judge found that she had not established by clear and convincing evidence that the insured was the father of the child. The decision was upheld by the Seventh Circuit Court of Appeals. Id. See also Cooper v. Sullivan, 985 F.2d 390, 391 (8th Cir. 1993) ( Evidence supported the Commissioner's denial of surviving child benefits where paternity was not proved by clear and convincing evidence under an Illinois intestacy statute, despite the child's mother testimony that the deceased number holder was the child's father and affidavits of the mother's mother, sister, and brother-in-law which supported her testimony).

In the fact situation you present, the evidence consists only of a statement of the child's mother and a statement from the mother of the deceased wage earner that her son told her that the child was his prior to his death. The question is whether these statements constitute clear and convincing evidence that Antonio was the deceased wage earner's son under Michigan law or as set forth above in the POMS. As Esther admitted, the deceased wage earner paid her no support, did not acknowledge in writing that she was carrying her son, did not cohabitate with her prior to his death, and made no statements concerning his relationship to the child she carried to other third parties. Based upon Michigan law, we do not believe that the statements of Esther and the mother of the deceased wage earner would produce in the trier of fact a firm belief or conviction of truth of the allegations made. This evidence is not so clear, direct, weighty, and convincing to enable anyone to come to a clear conviction, without hesitancy that Antonio is the child of the deceased number holder in this case. See e.g. Estate of V~; C~ for C~; J~ on Behalf of B~. Furthermore, based on this evidence, the fact-finder would not be more certain than 50 percent that Antonio was the son of the deceased wage earner.

Therefore, based on the information you gave us, we believe it is reasonable to conclude that the evidence does not establish paternity by "clear and convincing" proof within the meaning of Michigan case law and the POMS, and the requirements for entitlement under section 216(h)(2)(A) of the Act were not met.

Frank V. Smith, III

Chief Counsel

By__________

Jeffrey J. Leifert

Assistant Regional Counsel

DNA test results from alleged paternal grandparents do not establish a presumption of paternity, but would be considered as evidence in a Michigan paternity proceeding. Even if the results of such tests show a high probability percentage, they only demonstrate that the child is biologically linked to the alleged grandparents' family. They do not rule out the possibility that the alleged father may have had a brother who could be the natural father. Therefore, the test results would not be clear and convincing evidence of paternity absent additional evidence that the alleged father did not have a brother who had access to the child's mother. For example, a statement from the paternal grandmother would be sufficient to meet the clear and convincing standard.

You asked whether the State of Michigan would find Billy II to be the child of deceased wage earner Billy for inheritance purposes based on results of testing using the DNA of the deceased wage earner's parents. We conclude that the test results, without further evidence, probably would not suffice to establish paternity by clear and convincing evidence. However, we believe that a Michigan court would consider the test results in addition to any other relevant evidence in making a paternity determination. We recommend further development.

FACTS

The wage earner, Billy , who was domiciled in Michigan, died on September 5, 19xx. His death certificate indicates he was never married and shows William and Joan as the deceased's parents (Joan is listed as the informant). In December, Jill gave birth to a child whom she named Billy II. The space labeled "Father's Name" is blank on the child's birth certificate. On May 19, 2000, the wage earner's mother, Joan , filed an application, on behalf of Billy II, for child's insurance benefits on the wage earner's account. On that application, Joan indicated that the wage earner had stated several times that he was the child's father, that Jill had alleged the wage earner was the child's father, and that the wage earner and Jill were living together prior to the wage earner's death. Jill's whereabouts were unknown to Joan. A May 3, 2000 letter from a foster care worker at the Genessee County Family Independence Agency states that the child was placed with his paternal grandmother, Joan.

As evidence of the child's relationship to the wage earner, Joan submitted a report and memorandum, dated December 20, 1999, from Analytical Genetic Testing Center, Inc. Those documents indicate that, based on comparison of the umbilical cord blood and DNA material from Jill and the wage earner's parents, Joan and William , the probability that Joan and William are the child's biological grandparents is 99.840%.

Discussion

An applicant for child's insurance benefits must be the wage earner's "child" as that term is defined by the Social Security Act. 42 U.S.C. §§ 416(e), 416(h)(2-3). To determine entitlement as a wage earner's natural child, SSA first applies the law that would determine devolution of intestate personal property by the courts of the State where the wage earner was domiciled at death.

42 U.S.C. § 416(h)(2)(A). If, under State law, the claimant could take intestate personal property as the deceased wage earner's child, he is considered the wage earner's child for Social Security benefit purposes. Id. Because the wage earner was domiciled in Michigan at the time of his death, the question is whether a Michigan court would consider Billy II to be the wage earner's child for purposes of intestate succession.

Mich. Comp. Laws Ann. § 700.2114 (West 2000 Supp.) provides that a man is considered to be the natural father of a child born out of wedlock, for purposes of intestate succession, only if one of the following circumstances apply: (1) the man and the child's mother acknowledge the child as his child by filing an acknowledgment of parentage form with the state registrar, in accordance with the Michigan Acknowledgment of Parentage Act, Mich. Comp. Laws Ann. §§722-1001 to 722.1013; (2) the man and the child's mother file a written request to correct the birth certificate; (3) the man and the child have a mutually acknowledged relationship of parent and child that begins before the child is age 18 and continues until the death of either; or (4) the man is determined to be the child's father and an order of filiation establishing paternity is entered in accordance with Michigan's Paternity Act, Mich. Comp. Laws Ann. §§ 722.711-522.730.

There is no indication in the material submitted to our office that any of the above four methods of establishing the parent/child relationship for intestate succession purposes could be shown. Since the child was born after the wage earner's death, the second and third methods would not be applicable. The Michigan Acknowledgment of Parentage Act does not mention whether an acknowledgment could be filed prior to the child's birth. See Mich. Comp. Laws Ann. §§ 722-1001-722.1013 (West 2000 Supp). The Paternity Act, however, explicitly allows for a paternity proceeding to be brought during the pregnancy or at any time before the child reaches age 18. Mich. Comp. Laws Ann. § 722.714(3). Therefore, inquiry should be made as to whether an acknowledgment of parentage was filed or a determination was made as a result of an action under the Paternity Act.

Assuming none of the statutory methods for establishing the parent/child relationship was met, the question becomes whether SSA can determine that a Michigan court would nevertheless have found Billy II to be the wage earner's child for purposes of intestate succession. Effective November 27, 1998, SSA revised the way that it applies 42 U.S.C. § 416(h)(2)(A). See 20 C.F.R. § 404.354-404.356 (1999), 63 Fed. Reg. 57590. Under the regulations now in effect, if State law requires a court determination of paternity to establish inheritance rights, SSA will not require such a court determination for Social Security benefit purposes. 20 C.F.R. § 404.355(b)(2). Instead, SSA will make a determination under 42 U.S.C. § 416(h)(2)(A) by applying the standard of proof that the State court would have used in a paternity proceeding. See 20 C.F.R. § 404.355(b)(2). Thus, even though there may be no existing court order of filiation establishing paternity, SSA must determine what a Michigan court would have decided had a paternity action been filed.

Michigan's Paternity Act provides for blood or tissue typing or DNA profile determination, based on samples from the mother, child, and alleged father, by a person accredited for paternity determinations by a nationally recognized scientific organization, such as the American Association of Blood Banks (AABB). Mich. Comp. Laws Ann § 722.716(2). If the results demonstrate a probability of 99% or higher, paternity is presumed. Mich. Comp. Laws Ann. § 722.716(5). Where two or more persons are determined to have a probability of paternity of 99% or higher, the person with the highest probability is presumed to be the father. Id. The Paternity Act does not mention testing of DNA material from parents or other relatives of the putative father. Therefore, we believe the test results submitted in connection with Billy II's application would not give rise to a presumption of paternity in a Michigan court.

We conclude, however, that the results of testing using DNA material from alleged paternal grandparents, although not establishing a presumption of paternity, would be considered as evidence in a Michigan paternity proceeding, in addition to any other relevant evidence. In evaluating paternity claims, Michigan courts have considered factors beyond merely whether there is a presumption of paternity. See Burnside v. Green, 431 N.W. 2d 62, 64 (Mich. App. 1988); Schigur v. Keck, 286 N.W.2d 917, 919 (Mich. App. 1979) (witnesses can testify to physical similarities). In In re Estate of Jones v. Jones, 525 N.W.2d 493 (Mich. App. 1994), the court dealt with a prior version of the intestate succession statute that did not include an order of filiation as a method to establish the parent/child relationship.

The court acknowledged, however, that caselaw allowed for establishing the right to inherit based not only on the intestate succession statute but also on a judicial determination of paternity. Id. 525 N.W.2d at 497, citing In re M~ Estate, 524 N.W.2d 246 (1994). The court suggested that the parties be given the opportunity to bring a paternity action. Id. The court further suggested that one method of proving paternity could be to obtain a DNA profile using the child's tissue and the tissue of the deceased putative father or the deceased putative father's mother. Id. This case supports our conclusion that a Michigan court would consider test results using DNA material from an alleged paternal grandmother. The underlying facts of Outwater for McClinchey v. Secretary of Health & Human Servs., 894 F. Supp. 1114 (E.D. Mich. 1995), also support our conclusion. In that case, a Michigan probate court had previously found a child was sole heir at law based in large part on results of testing of DNA material from the putative father's parents. Id. at 1116, 1118.

Although the DNA test results submitted by Joan constitute evidence the Michigan courts would consider in determining paternity, they do not, standing alone, establish that Billy II is the natural child of the wage earner. Absent the presumption of paternity, Michigan law requires clear and convincing evidence of paternity. See POMS GN 00306.080. Although probative because of the high probability percentage, the results demonstrate only that Billy II is biologically linked to the alleged grandparents' family. They do not rule out the possibility that the wage earner may have a brother who could be the natural father.

Here, the claim is bolstered somewhat by the letter from the Family Independence Agency stating that the child was placed with Joan, as the paternal grandmother. It is further bolstered by Joan's statements on the application for benefits that: (1) the wage earner told her that the child was his; (2) Jill stated that the wage earner was the father; and (3) Jill and the wage earner were living together at the time of his death. However, absent additional evidence that the wage earner did not have a brother who had access to the child's mother and could be the natural father, it is doubtful whether this evidence would be sufficient as clear and convincing evidence of paternity. We recommend that you attempt to develop further evidence to assure that the wage earner did not have a brother who could be Billy II's father. We believe that a statement from Joan that the wage earner had no brothers would suffice to meet the clear and convincing evidence standard. If there are brothers, however, statements should be obtained from those having knowledge about whether the brothers had access to Joan around the time of conception. Such statements might be obtained from the brothers, other members of the Billy family, Joan, or members of her family with whom she was close. After the additional evidence is secured, if it appears to establish that no brother of the wage earner is likely to be the father, the clear and convincing evidence standard will have been met and Billy II should be found to be the wage earner's "child" under the Act.

Conclusion

In summary, we conclude that the Michigan courts would allow consideration of valid DNA tests of paternal relatives as evidence concerning paternity. We also conclude that the testing center that performed the DNA tests in this instance is properly accredited. However, absent clear and convincing evidence that the wage earner was the only male in his family who was likely to have fathered the child, we conclude that it is doubtful whether the Michigan courts would find that Billy II was the wage earner's natural child. Additional documentation is recommended to rule out any likelihood that other family members could have fathered the child.

While test results of the alleged father's relatives do not create a statutory presumption, Michigan courts would consider valid DNA tests of paternal relatives as other probative evidence of paternity. Birth certificates from all the tested individuals and the deceased NH verify the relationship of the tested individuals to the putative father.

Since testing of paternal relatives only demonstrates the child's biological link to the paternal family, it does not rule out the possibility that one of the deceased's male relatives fathered the child. Therefore, additional documentation is required to establish that no other male in the paternal family, alive at the time of conception, could be the father of the child. Evidence could include statements from the NH's family concerning other males and the biological mother concerning the access of the NH.

You asked that we give an opinion concerning whether the State of Michigan would allow the testing of paternal relatives' DNA to be used to determine paternity where the putative father is deceased. You also asked for an opinion as to whether, under Michigan statutory law, accreditation of the DNA testing center by the American Association of Blood Banks (AABB) constitutes proper accreditation for purposes of paternity determinations. Finally, you asked for an opinion as to whether a reopening of the original claim is warranted (assuming that new and material evidence established paternity).

For the reasons that follow, we believe that Michigan courts would allow consideration of valid DNA tests of paternal relatives as "other evidence" concerning paternity. We also believe that the testing center in question is properly accredited. Notwithstanding the fact that the DNA testing creates a 99.93% likelihood that the alleged paternal relatives are the biological paternal family members of this child, there is no evidence in the claims file regarding whether the paternal family includes other males. Absent probative evidence that the deceased wage earner was the only male in his family who could have fathered this child, we believe that the Courts of Michigan would likely find that paternity is not established. Accordingly, we conclude that a reopening of the original claim is not warranted based on the current evidence.

However, we recommend further investigation of this matter, and if a finding of paternity is properly reached thereafter, we recommend reopening of the original claim.

Facts

Jeffrey, a Michigan domiciliary, was born in September and died as the result of suicide on December 12, 19xx. He is alleged to be the father of Jeffrey, a child born in May, who is also domiciled in Michigan.

According to the file, a previous application for surviving child's benefits, filed January 3, 1996, was denied because paternity was not established. On July 2, 1999, the child's custodial aunt (allegedly paternal), Sherry , filed a new application for surviving child's benefits on behalf of Jeffrey . Included with the application were genetic test results dated June 22, 19xx. DNA Diagnostics Center in Fairfield, Ohio analyzed the DNA of the child, his mother, two alleged paternal aunts, and the alleged paternal grandmother. The DNA test results indicated that the probability of the paternal biological relationship to the alleged father (whose DNA makeup was reconstructed through the DNA samples submitted by his relatives) is 99.93%. The test did not evaluate the DNA of any paternal male relatives and there is nothing in the claims file regarding the existence of paternal male relatives.

The evidence in the claims file includes statements from Sherry and friends of the child's mother, June , that they believe Jeffrey is the child's father. Additionally, there are two certificates in the claims file: (1) A CLIA (Clinical Laboratory Improvement Amendments) Certification of Accreditation, issued by the Department of Health and Human Services Health Care Financing Administration to DNA Diagnostics Center, dated April 1998, and (2) a certificate of accreditation issued by the AABB to DNA Diagnostics Center in December 1998. The curriculum vitae of Richard , co-founder and director of DNA Diagnostics Center, is also included.

Discussion

1. It is proper to consider the DNA test results of paternal relatives.

Under the Social Security Act, a child can obtain benefits on the account of a wage earner if the child can take a child's share of the wage earner's intestate personal property. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1) (1999); POMS GN 00306.001(A). If the wage earner is deceased, 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). Jeffrey was domiciled in Michigan; therefore, Michigan intestacy laws apply to determine whether Jeffrey is his biological child.

The POMS properly describes Michigan law as creating a presumption of paternity if valid DNA tests establish a 99% (or greater) likelihood of paternity. POMS GN 00306.080 (Michigan). However, as we previously advised, (see Validity of Grandparent DNA Testing to Establish Paternity in Michigan, Lisa, SSAN: ~, OGC-V (Messer) to Donna , ARC-MOS (January 13, 2000), at 2) the POMS and Michigan statutory law do not address any presumption when DNA testing establishes the likelihood of a relative's (such as grandparent) relationship. Id.; see also Mich. Comp. Laws § 722.716. Here, the DNA results discuss the likelihood of a paternal relationship and establish a 99.93% probability of such relationship, based on a paternal DNA profile that was reconstructed from the DNA samples submitted by the alleged father's relatives. We do not believe that this test result would not give rise to a statutory presumption of paternity.

Michigan law, however, permits a finding of paternity notwithstanding the absence of a statutory presumption of paternity. The POMS make this clear. POMS GN 00306.080 (Michigan). Court cases in Michigan have further considered factors other than the presumptions when evaluating paternity claims. See Schigur v. Keck, 286 N.W.2d 917 (Mich. Ct. App. 1979) (witness can testify to physical similarities). The POMS explain that blood test results showing a probability of paternity of less than 99% are still evidence concerning paternity even if the results do not establish a statutory presumption or completely rule out the paternity claim.

We believe that the Michigan courts would allow the fact finder to consider grandparent and other relative blood tests as probative of the issue of paternity. In In Re Estate of J~, 525 N.W.2d 493, 497 (Mich. Ct. App. 1994), the court stated that "one method of proving paternity in this case is to utilize a DNA profile by using the child's tissue and the tissue of either decedent or decedent's mother." We believe that the Michigan courts would consider the DNA test results of the child's putative paternal relatives. See Outwater ex rel. McClinchey v. Secretary of Department of Health and Human Servs., 894 F.Supp. 1114, 1118 (E.D. Mich.) (noting that the paternity judgment was based on testing of the deceased wage-earner's parents).

2. The DNA Testing Center May Be Considered Properly Accredited.

As the POMS recognize, under Michigan law, blood testing, tissue typing, and DNA testing performed for purposes of determining paternity "must be conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including but not limited to, the American Association of Blood Banks." POMS GN 00306.080. Here, the claims file contains an AABB certificate of accreditation for the DNA Diagnostics Center, the testing facility that prepared the DNA profile in this case. Additionally, the center meets the standards of the Health Care Financing Administration. Still further, the Associate Director of the center verified on the DNA test results that she conducted the testing in accordance with the AABB's recommended guidelines for DNA testing. Absent any evidence in the file that would call into question the qualifications of the testing staff, we conclude that the center (and hence, its staff) has proper accreditation under Michigan law.

3. Further Investigation and Documentation of the Paternal Family Is Advised.

Based on the considerations addressed above, the DNA testing of the child's putative paternal relatives was conducted by properly accredited staff and constitutes evidence of paternity that the Michigan court would consider. We recommend further investigation of the matter and documentation of the paternal family members. First, as noted in your memorandum, birth certificates from all of the tested individuals and the deceased wage-earner would help to verify that the relationship of these individuals to the putative father. Additionally, without further development of some pertinent facts, the DNA testing in this case only demonstrates the child's biological link to the putative paternal family; it does not rule out the possibility that one of the deceased's male relatives fathered this child. As a result, without further information, the DNA testing does not in itself show that the deceased wage earner was the biological father of the child.

We therefore recommend that you obtain additional documentation to establish that no other male in the paternal family, alive at the time of the child's conception, could be the father of this child. This evidence could include statements from the wage earner's family concerning other males, and from the biological mother concerning the access of the wage earner. After all of the evidence is collected, the adjudicator should determine whether "clear and convincing" evidence supports the paternity claim.

4. A Reopening the Original Claim Is Appropriate if Clear and Convincing Evidence Supports the Paternity Claim.

Finally, you asked whether a reopening of the original claim would be appropriate in this case. We conclude, assuming that paternity is established by clear and convincing evidence, that such a reopening is warranted. The applicable Michigan statute is a legitimating statute, in that if a child born out of wedlock satisfies one of its provisions, the Michigan statute accords the child the right of inheritance as a legitimate child. Section 700.111 of the Michigan Probate Code states in pertinent part:

If a person is considered or presumed by a provision of this section. . . to be the natural parent of a child born out of wedlock. . . that child shall bear the same relationship to that person as a child born or conceived during a marriage for all other purposes and shall have the identical status, rights, and duties of a child born in lawful wedlock effective from birth.

Mich. Comp. Laws Ann. § 700.111(6) (emphasis added). Accordingly, if new and material evidence satisfies the clear and convincing standard for paternity, we would recommend treating this case as if a court order of filiation had been entered pursuant to the Michigan Paternity Act (see Mich. Comp. Laws Ann. § 700.111(4)(d)), and reopening the original claim for a retroactive award of benefits.

Conclusion

In summary, we conclude that Michigan courts would allow consideration of valid DNA tests of paternal relatives as "other evidence" concerning paternity. We also believe that the testing center in question is properly accredited. However, absent probative evidence that the putative father was the only male in his family who could have fathered this child, we believe that the Courts of Michigan would likely find that paternity is not established. Additional documentation would be needed to rule out that possibility. If, after further investigation, you find that clear and convincing evidence exists to establish paternity, it is appropriate to reopen the original claim for a retroactive award.

Michigan statutory law does not address any presumption when DNA testing establishes the likelihood of a grandparent relationship.

Where the putative father is deceased, Michigan courts would allow the valid testing of a grandparent's DNA to be considered as "other evidence" of paternity under the applicable standard.

The Western Program Service Center asked that we give an opinion concerning whether the State of Michigan would allow the testing of a grandparent's DNA to be used to determine paternity where the putative father is deceased. For the reasons that follow, we believe that Michigan courts would allow consideration of valid DNA tests as "other evidence" concerning paternity. Here, the DNA testing creates only an 8% likelihood that the alleged paternal grandfather is the biological grandfather of the child. Thus, absent other probative evidence, we believe that the Courts of Michigan would likely find that paternity is not established.

Facts

Donald was born in Illinois in March, and he died of a heroin overdose at age 19 in Michigan on January 9, 19xx. He is alleged to be the father of Lisa, a child born in October, in Michigan.

According to the file, Tammy, Lisa's mother, applied for child's benefits on behalf of Lisa in 1998. That claim was denied, and the determination was not appealed. Tammy reapplied in June 1999, and she submitted additional evidence.

The evidence in the claims file includes statements from Tammy and several of Donald's family that they believe Donald is Lisa's father. Also included are the results of DNA testing conducted on Lisa, Tammy, and Donald's father, also named Donald. These test results neither confirm nor rule out the possibility that Donald, Sr., is the Lisa’s grandfather, but the testing laboratory, the Memorial Blood Centers of Minnesota, computed the likelihood that Donald, Sr., is the paternal grandfather as 8%.

DISCUSSION

Under the Social Security Act, a child can obtain benefits on the account of a wage earner if the child can take a child's share of the wage earner's intestate personal property. 40 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1) (1999); POMS GN 00306.001(A). If the wage earner is deceased, 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). Tammy lived in Michigan. Therefore, Michigan intestacy laws apply to decide whether Lisa is his "child."

As the Winfield, Kansas, district office observed, the POMS properly describes Michigan law as creating a presumption of paternity if valid DNA tests establish a 99% likelihood of paternity. GN 00306.080 (Michigan). The POMS and Michigan statutory law do not address any presumption when DNA testing establishes the likelihood of a grandparent relationship. Id.; see also Mich. Comp. Laws § 722.716. Here, the DNA test results (we presume that the laboratory meets the standards set out in the Michigan statutes), discuss only the likelihood of a grandparent relationship, and they establish an 8% likelihood of such relationship.

The law in Michigan, however, allows a finding of paternity even if there is not statutory presumption at issue. The POMS explains this. POMS GN 00306.080 (Michigan). Court cases in Michigan have further considered factors beyond the presumptions in evaluating claims of paternity. See Schigur v. Keck, 286 N.W.2d 917 (Mich. Ct. App. 1979) (witnesses can testify to physical similarities). The POMS explains that blood test results showing a probability of paternity of less than 99% are still evidence concerning paternity even if the results do not establish a statutory presumption or completely rule out the paternity claim.

We believe that the Michigan courts would also allow the fact finder to consider grandparent blood tests as probative of the question of paternity. In In re Estate of J~, 525 N.W.2d 493, 497 (Mich. Ct. App. 1994), the court stated that "one method of proving paternity in this case is to utilize a DNA profile by using the child's tissue and the tissue of either decedent or decedent's mother." Similarly, in Outwater ex rel. McClinchey v. Secretary of Health & Human Services, 894 F. Supp. 1114, 1118 (E.D. Mich.), the United States District Court for the Eastern District of Michigan noted that a paternity judgment had been based on testing of the deceased wage-earner's parents. In light of these cases, we believe that the Michigan courts would consider the DNA test results of the child's putative grandfather.

In this case, the DNA results show a probability that Donald, Sr., was the grandfather was only 8%. Thus, if Donald, Sr., is in fact the biological father of the deceased wage-earner, it seems that this evidence does little to support the claim that the deceased wage-earner is the biological father of the claimant.

CONCLUSION

For the foregoing reasons, we believe that it is proper to consider the DNA test results of Lisa , Tammy, and Donald, Sr., to determine whether Donald, Jr., was the father of Lisa . In this case, however, it appears that the test results do not support the paternity claim.

Where blood test performed after the NH's death showed a 99.9 percent probability of paternity of a child born out of wedlock, and there is evidence of a biological relationship between the child and the NH, a posthumous Michigan court order of paternity would give the child inheritance rights in the father's estate. The failure of the child, in strict terms, to satisfy her duty to acknowledge the NH as her biological father would not preclude a finding of inheritance rights. ( Byron, - RAV (W~) to Director, RSI/SSIB, Chicago 01/29/92)

ISSUE

This is with reference to your memorandum inquiring whether the Social Security Administration can accept a posthumous court order of paternity. We conclude that the court may accept such order.

FACTS ^[3]

The facts may be briefly summarized: In October Tammy gave birth to Samantha. Tammy was not married, but she claimed that Byron, the number holder, was Samantha's biological father. On June 6, 1989, Byron was killed in an automobile accident. The following day, blood samples were taken from Byron's body, and five days later both Tammy and Samantha submitted to blood tests. None of the blood test systems excluded Byron as the father of Samantha. In fact, the paternity test results indicated that Byron's probability of being the natural father of Samantha was 99.9 percent. On November 7, 19xx, following the submission of signed affidavits of Byron's sister and father and testimony of his mother, the Probate Court of Kent County determined that Samantha had, in fact, been Byron's biological daughter and ordered her to be counted among his heirs.

DISCUSSION

In order to decide this question, we must determine whether in a case such as this the Michigan courts would accept a posthumous court order of paternity that would bestow on an illegitimate child the full rights of intestate succession.

Section 700.111 of the Michigan Compiled Laws Annotated (Intestate Succession Act) provides in relevant part:

If a child is born out of wedlock or if a child is born or conceived during a marriage but not the issue of that marriage, a man is considered to be the natural father of that child for all purposes of intestate succession if any of the following occurs:

a. The man joins with mother of the child and acknowledged the child as his child in a writing executed and acknowledged by them...

b. The man joins with the mother in a written request for a correction of certificate of birth pertaining to the certificate recording the birth of the child.

c. The man and the child have borne a mutually acknowledged relationship of parent and child which began before the child became age 18 and continued until terminated by the death of either.

Mich. Comp. Laws Ann. § 700.111(4) (West 1991).

In Matter of Estate of S~, 383 N.W.2d 266 (Mich.App. 1985), a Michigan court had occasion to interpret section 700.111(4)(c). At issue there was whether the alleged deceased father and child had borne a mutually acknowledged relationship of parent and child. The court remarked that 'the Legislature's concern was to insure that a biological relationship of parent and child did indeed exist.' Matter of Estate of S~, 383 N.W.2d at 268. In determining that "overwhelming" evidence existed to support the probate court's finding that the decedent acknowledged a parental relationship with the child, the court pointed to past statements and actions of the decedent. It noted that the decedent told the mother to tell everyone that the baby was his and that they were married. Id. at 269. Moreover, according to the court, the decedent had provided some voluntary child support'. Id.

In the present case, the file contains signed affidavits that state that Byron had acknowledged Samantha as his child. In their affidavits, Elizabeth and Richard , Byron's sister and father respectively, stated that Byron had acknowledged to her that he was Samantha's biological father and that he intended to continue to support Samantha financially. While this evidence may not be as 'overwhelming" as that in Spencer, it does seem to satisfy the legislature's concern that a biological relationship of parent and child did exist.

It is clear, however, that Samantha has not satisfied, in strict terms, her duty to acknowledge Byron as her biological father. Yet her failure to acknowledge Byron as her biological father should not be fatal for two reasons. First, Samantha, at her age, is obviously incompetent to acknowledge anyone as her parent, and Tammy, her legal guardian, 'has acknowledged Byron as Samantha's biological father. Perhaps more important, however, is that this is not a situation where the father is attempting to take by intestate succession from the estate of an out-of-wedlock child. Instead, it is the child that would benefit from her father's acknowledgment'. In other words, it appears that the legislature by including the child's acknowledgement was simply trying to guard against a long-lost father making specious and deceitful claims against the estate of his alleged deceased child. Such situation does not, of course, exist here.

We conclude that Michigan courts would accept the posthumous court order of paternity and allow Samantha to share in her father's estate.

Where a child's mother initiated a paternity suit shortly after the child's birth and well before the NH's death, and blood tests provided strong proof of paternity, a posthumous court order of paternity gives the child full rights of intestate succession under Michigan law. ( Darwin J., RAV (W~) to Dir., RsI/SSIB 05/01/91)

This is with reference to your memorandum inquiring whether the Social Security Administration may accept a posthumous court order which relied on a blood test to establish paternity. We conclude that SSA may accept the court order.

FACTS:

The relevant facts may be briefly summarized: In May Kimberly gave birth to Adriana. Kimberly was not married, but she claimed that Darwin was Adriana's father. To establish paternity, Kimberly initiated suit in Michigan state court. On January 9, 199x, Adriana, Kimberly and Darwin all submitted to a paternity blood test. None of the blood test systems, the ABO, Rh, or the MNSs, excluded Darwin as the father of Adriana. In fact, the paternity test results indicated that Darwin's probability of being the natural father of Adriana was 99.9 percent. According to John , M.D. and Kenneth , Ph.D., both of whom conducted the tests, paternity was practically proved. On June 11, 199x, Darwin died after fracturing his cervical spine. No court order or decree had yet been issued, and Darwin had not acknowledged in writing that Adriana was his child. On October 16, 199x, however, the court issued its order finding Darwin to be the father of Adriana.

DISCUSSION:

In order to decide this question, we must determine whether in a case such as this the Michigan courts would accept a posthumous court order of paternity that would bestow on an illegitimate child the full rights of intestate succession.

Section 700.111 of the Michigan Compiled Laws Annotated (Intestate Succession Act) provides in relevant part:

If a child is born out of wedlock or if a child is born or conceived during a marriage but not the issue of that marriage, a man is considered to be the natural father of that child for all purposes of intestate succession if any of the following OCCURS:.

a. The man joins with the mother of the child and acknowledges child as his child in a writing executed and acknowledged by them...

b. The man joins with the mother in a written request for a correction of certificate of birth pertaining to the child which results in issuance of a substituted certificate recording the birth of the child.

c. The man and the child have borne a mutually acknowledged relationship of parent and child which began before the child became age 18 and continued until terminated by the death of either.

Section 2{b} of Michigan's Paternity Act (M.C.L.A. § 722.712(b)) states:

If the father dies, an order of filiation or a judicially approved settlement made prior to his death shall be enforceable against his estate in the same manner and way as a divorce decree.

At first glance, it appears that these sections preclude use of the posthumous court order of paternity to establish Adriana as Darwin's child. Yet these provisions, which require a pre-death order of filiation or written acknowledgement, obviously attempt to minimize the number of specious and deceitful claims. See Matter of Estate of S~, 147 Mich.App. 626, 383 N.W.2d 266, 269 (1985) ("It appears that the mischief these provisions were intended to obviate is the situation where deceitful claims are made against an estate by individuals posing as the deceased's long-lost children"). By requiring that a written acknowledgement, court order, or court decree be made before the wage earner's death, these statutes guarantee that the insured individual would have had the opportunity to defend against and defeat such specious claims.

The Supreme Court of Michigan has held that an illegitimate child can inherit from her intestate father if, in a paternity suit, it is determined that the intestate is her father. Easley v. John Hancock Mutual Life Insurance Co., 403 Mich. 521, 271N.W.2d 513 (1978). See also, In Re B~ Estate, 117 Mich.App. 281, 323 N.W.2d 671 {1982). Thus, even though Adriana does not satisfy any of requirements of the Intestate Succession Act, she still would be able to share in Darwin's estate if the Michigan courts would accept the posthumous court order of paternity.

In the present case, Kimberly filed the paternity suit on Adriana's behalf well before the death of Darwin. In January of 1990, Darwin submitted to blood tests that practically proved that he was Adriana's father.^[4] After Darwin died in June of 1990, his father, the personal representative of Darwin's estate, briefly continued the defense of the suit, but eventually acknowledged in face of the overwhelming evidence that Darwin was Adriana's father. The court agreed and entered its order to that effect.

This case does not present a situation where the claimant initiated suit after the wage earner's death, thereby depriving the wage earner of all opportunity to contest the action. As a matter of fact, the claimant filed her paternity suit very shortly after Adriana's birth. Moreover, Adriana's blood test was conducted at virtually the earliest date permitted by Michigan law. ^[5] Thus, the claimant cannot be accused of loafing. Darwin had ample opportunity to contest paternity, but he could not do so successfully because the evidence indicated that he was Adriana's father. Consequently, the statutory language should not be read so narrowly as to deny acceptance of the posthumous court order and thereby preclude Adriana from receiving benefits to which she is entitled.

Indeed, the Court of Appeals of Michigan has intimated that under circumstances present here, it would not apply such a cramped and inflexible interpretation of the Paternity Act's pre-death court order requirement. "[U]nder no circumstances would a Michigan court permit an illegitimate child (or her mother) to wait until long after the death of a putative father to assert a paternity claim and then, without corroborating proof, make a finding [of paternity]." In Re B~ Estate, supra at 323 N.W.2d 679. Here, on the other hand, Kimberly did not wait until long after Darwin's death, and the blood test results provided strong corroborating proof. Accordingly, we conclude that Michigan courts would recognize the posthumous court order of paternity and thereby allow Adriana to share in Darwin's estate.

This case presents intriguing and obviously sympathetic facts - facts apparently not contemplated by Congress or the drafters of Michigan's Intestate Succession Act and Paternity Act. Although this is a close question, granting child's benefits to Adriana is not inconsistent with Michigan law.

PARENT AND CHILD — COURT DECREE OF PATERNITY — MICHIGAN

Although DHHS is not free to disregard a State Court finding of paternity where all four criteria in Gary v. Richardson, 474 F.2d 1370, are met it is not required to disregard the State Court finding where all of the criteria are not met. The criterion that the issue be genuinely contested before a State Court by parties with opposing interests was not met but there were adequate notice and opportunity to enable the parties to contest the proceedings upon which the court finding was based. This fact, together with other evidence would be sufficient to enable DHHS to make a determination consistent with the Court finding. ( W., — RAV(W~), to ARC, 03/11/85.)

By referral dated January 22, 1985, you asked whether SSA should follow a state court finding of paternity in this case even though all four criteria of Gray v. Richardson, 474 F.2d 1370 (1973) are not met. In our opinion, SSA is not free to disregard a state court opinion where all four criteria of Gray v. Richardson are met. However, the converse is not required. That is, where all four criteria are not met, SSA is not required to reject the court's outcome. Rather, SSA may nonetheless choose to follow the court's decision based on its own assessment of the evidence and of the reasons why a criterion is not met. In this case, it is our opinion that there is sufficient evidence along with the state court order on which to find that De J. would be viewed under Michigan law as the child of the wage earner William for purposes of intestate succession, and should therefore be found to be the wage earner's child for purposes of SSA benefits. Our reasons follow.

BACKGROUND FACTS

De J. was born September. His mother was not married at the time. The wage earner, William, died domiciled in Michigan on September 23, 19xx. An application for child's benefits was filed on October 27, 1983 for De J. by his mother, Nan. The application was denied because there was insufficient evidence to establish paternity.

Nan then filed a petition in the Wayne County Probate Court to determine the heirs of the deceased wage earner's estate. On October 12, 19xx, the court found that a mutually acknowledged relationship existed between the child and the decedent and named De J. as an heir of the wage earner. Nan reapplied for child's benefits for De J. on October 12, 1984.

The evidence includes statements by Nan and two of her sisters that the wage earner orally acknowledged De J. from the child's birth until the wage earner's death, visited the child who called him "Daddy", and made regular contributions for De J.'s support. There is no evidence to substantiate the contributions. Although Nan alleged that the wage earner told his brother and sister that he was De J.'s father, the wage earner's brother and sister refuse to make a statement to SSA. Hospital records from the time of De J.'s birth show the wage earner as the child's father, although the birth certificate does not name a father. The wage earner's estate was advised of the probate court hearing to determine the wage earner's heirs, but did not respond or attend the hearing. SSA has not obtained any evidence relied on in the court proceeding other than Nan original petition.

DISCUSSION

Under Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. §416(h){2}{A), De J. the child of the deceased wage earner if he would be entitled to share in the distribution of the wage earner's intestate personal property as the wage earner's child under the law of the decedent's domicile. The wage earner lived in Michigan at the time of his death.

The Wayne County Probate Court ruled on October 12, 19xx that De J. was the son of the deceased wage earner for purposes of intestate succession under the provisions of M.C.L.A. §700.111{4}(c). Under that section, one way to establish heirship for a child born out of wedlock is that

The man and the child have borne a mutually acknowledged relationship of parent and child which began before the child became age 18 and continued until terminated by the death of either.

The court order states that "notice of hearing was given to or waived by all interested parties," that the court heard Nan testimony and received a favorable guardian ad litem report on behalf of De J., and that the court was satisfied that a mutually acknowledged relationship of parent and child existed between the decedent and De J.

As you are aware, the Sixth Circuit Court of Appeals held in Gray v. Richardson that, although the Secretary is not bound by a state court decision to which he was not a party, he cannot ignore a state court decision where the following four prerequisites are found:

1) An issue in a claim for social security benefits previously has been determined by a state court of competent jurisdiction; 2) this issue was genuinely contested before the State court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

474 F.2d at 1373. The decision in G~ has been adopted by SSA. SSR 83-37c (July 1983).

Prior opinions from our office have clarified that although SSA is not free to disregard a state court opinion where all four criteria of Gray v. Richardson are met, it is not necessary that all four criteria be met for the Secretary to accept a state trial court decision under certain circumstances. See Howard P ~ , ~ , RA-V (M~)to ARC-Programs V

(W~), 6/21/83, and Larry, G~ , ~ - RA-V (H~) to ARC-

Programs V (W~), 7/8/82. In Larry G~, for example, we indicated that to require a genuine contest may be to require the impossible in some cases.

In this case, the first and third criteria were met. The issue of paternity was decided by a court of competent jurisdiction and the issue of paternity falls within the general category of domestic relations law.

With regard to the second criterion, there was no genuine contest by parties with opposing interests in that nobody representing the estate appeared and disputed paternity. The estate, however, was given notice of the hearing and given an opportunity to appear. Nobody from the decedent's family ever denied paternity; at most they refused to make statements to SSA or the court supporting or refuting the wage earner's paternity. Under these circumstances, the estate's failure to contest the proceedings cannot serve to weaken the effect to be given to the probate court's order. As with Larry G~, supra, the absence of a genuine contest in these circumstances should not alone defeat deference to the court's order. A knowing voluntary waiver of the opportunity to contest can compensate for the absence of a contest. See, L. , RA-V {G~} to ARC-Programs V {W~}, 4/18/84

The fourth criterion also appears to be met. There is no basis to conclude that the trial court's resolution is inconsistent with the law enunciated by the state's highest court. In Michigan a lower standard of proof need be met to establish paternity of a child born out of wedlock, because unlike a child born in wedlock there is no presumption of legitimacy to overcome. Bowman v. Bowman, 115 Mich. App. 309, 320 N.W.2d 355 (1982). Based on the evidence that we know the trial court reviewed, which included the unrebutted allegations supporting mutual acknowledgment in Ms. G~ petition, her testimony, and a favorable guardian ad litem report, it appears that Ms. G~ met her standard of proof. A higher court would not overturn the trial court's opinion for being "against the overwhelming weight of the evidence," which is the standard of appellate review in this case. Kenner v. Watha, 115 Mich. App. 521, 323 N.W.2d 8 (1982).^[6]

We have recommended further investigation by SSA in some cases where the basis for a trial court's decision is unclear or it is uncertain that the trial court's decision is consistent with the law enunciated by the state's highest court. E.g., Howard P~ , supra. Further investigation is unnecessary in this case, however, because as stated above it is our opinion that a higher court would not overturn the trial court's decision if appealed. Moreover, even if the trial court's decision is not binding on SSA, in our opinion the total evidence reviewed by SSA is sufficient to establish that the highest Michigan court would find De J. to be the wage earner's child for inheritance purposes and thus for purposes of Section 216(h)(2)(A) of the Social Security Act. ^[7]

All the evidence in the file supports a finding of the wage earner's paternity of De J. The mother has consistently identified the wage earner as the child's father. Hospital records from the time of the child's birth show the wage earner as the child's father. The mother's position has always been consistent. Her statements regarding paternity and support contributions are corroborated by her sisters. No statements have ever been made refuting the wage earner's paternity. The wage earner's family refused to make statements to SSA and failed to appear at the court proceedings, but they have never publicly denied the wage earner's paternity. The wage earner does not appear as the father on the child's original birth certificate, and this reflects his failure to give written consent to give his name as the father. Under M.C.L.A. §333.2824 the name of a father of a child born out of wedlock cannot appear on the child's birth certificate without the written consent of both parents. ^[8] This does not amount to a denial of paternity, however, especially with the remaining evidence of mutual acknowledgment.

Your request for an opinion refers to a regional transmittal, POMS GN R TOO306.135{E){2), which requires that a mother's statement establishing mutual acknowledgment on behalf of a young child in Michigan be corroborated by individuals that are not related to or friends of the mother. We were advised by Evelyn , RSI, SSA-V, on March 5, 1985 that the regional transmittal contains errors and will be deleted. We cannot find any Michigan case or statute which prohibits establishing mutual acknowledgment solely on the basis of unrebutted statements of the mother on behalf of the young child or decedent which are corroborated by her family or friends. ^[9] It is therefore our opinion that the evidence herein would be sufficient for the highest court in Michigan to find that De J. was the wage earner's child for purposes of inheritance. ^[10]

CONCLUSION

For the foregoing reasons, whether or not the state court order satisfies all four criteria of Gray v. Richardson in this case, in our opinion SSA should nonetheless conclude that the highest court in Michigan would find De J. to be the son of the wage earner for inheritance purposes based on mutual acknowledgment under M.C.L.A. §700.711C4}{c). De J. is therefore the deceased wage earner's son for purposes of entitlement to SSA benefits under Section 216{h)(2}CA} of the Social Security Act.

LEGITIMACY AND LEGITIMATION — LEGITIMATING ACTS BY PARENTS — MICHIGAN

Under Michigan law a correction of a birth certificate showing an individual as the father of a child is sufficient to establish inheritance rights for the child. However, this inference may be rebutted by clear and convincing evidence to establish paternity on the part of another individual, applying the test of acknowledgment and conduct on the part of both father and child consistent with such a relationship. In the instant case, conflicting and self-serving statements on the part of the claimants and various witnesses were sufficient to render the truth of the statements doubtful and thus were insufficient to establish inheritance rights under the acknowledgment test. ( Derreich, RAV (G~), to ARC, O3/12/84.)

This is with reference to your January 20, 1984 request for a legal opinion. You asked whether the Social Security Administration (SSA) may reach the question of whether under Michigan law a child born out of wedlock is the intestate heir of the deceased wage earner (DWE). The child already appears to be the intestate heir of his mother's still living former husband under the "birth certificate" provision of the governing statute.

Your question poses the issue whether the first "legitimation" is conclusive, or whether it may be rebutted. In our opinion, although a "birth certificate" legitimation may be rebuttable in this case, the present evidence precludes a determination that the claimant is the intestate heir of the DWE.

RELEVANT FACTS

1. The Immediate Claim

Claimant Andre was born in August. The available undisputed evidence indicates that prior to that. time his mother, Amanda, then Amanda, and the DWE, Detreich, had a sustained relationship. Although their cohabitation might have ended before claimant's conception, TIll and Detreich continued to see each other regularly until she met J. It is also undisputed that Amanda did not meet J, whom she married in 1972, until after Andre's birth. Amanda states that prior to Andre's birth, Detreich was the only man she was seeing.

In 1974, a birth certificate for Andre was issued which named J. as the father, and gave Andre the surname of J. Both the mother and J. explain this step as prompted by the fact Andre was nearing school age, and their desire to avoid embarrassment to him and provide stability. Both Amanda and J. state that Andre was never legally adopted by J.

In 1983, J. sued for divorce. His July, 1983 Amended Complaint named only one child of the marriage, J., born in 1973, of whom he sought custody. Amanda had countersued for divorce in June, 1983, and named both Andre and J. as issue of her marriage to J. June, 1983 interim decree awarded custody of both children to Amanda and ordered J. to pay child support for both Andre and J.

In November, 1983, Amanda told the district office that J. was paying support for J. only, that Andre was "taken off the later divorce complaint" with her agreement, that J. did not wish to support someone else's child, and that she would to along with his wish. J. has made similar statements.

Detreich died in June, 1983. In September, 1983, Amanda filed Andre's claim for benefits based on Detreich. She initially reported as Detreich's only acknowledgement of Andre statements that he had made to her family prior to Andre's birth. She gave negative responses to the questions whether Detreich had performed as a father to Andre or whether Andre referred to Detreich as "daddy," etc., or that Detreich referred to Andre as "son," etc. She similarly stated that the two had not visited, and that Detreich had not taken the child to school or on trips or family visits. She further answered that Andre did not know or act toward Derreich as his father. She also volunteered the information that Andre learned only in April, 1983 that J. was not his father, and that he did not know Detreich was his father.

Subsequently, Detreich 's mother and a sister gave statements that he was Andre's father. Both also stated that he orally acknowledged the child, took the child on visits, and provided some gifts and minor support. The sister also stated that Andre referred to Derreich as his father. A statement by a couple who were neighbors of Amanda until her 1972 marriage to J is similar in terms of Detreich's actions but appears limited to a time when Andre was a baby.

After the addition of these statements, Amanda advised the district office that her earlier statements were not correct. Explaining that she was very ill at the time of her September statements, Amanda maintained that Detreich widely admitted that Andre was her son, including to his family, that he regularly took Andre out on weekends, including to family gatherings, and called Andre "son." She further stated that to her Andre referred to Detreich as his father. ^[11]

Andre also was interviewed at this later date. He stated that he had known Detreich B~ as his father since he was a baby. He reported that he saw his father frequently, called him "dad" .or "daddy" and heard his father refer to him as "son." He claimed that the two of them had a very close relationship.

The district office worker reported that mother and son on this occasion were "very sincere," and that the reason given by Amanda for her earlier "incorrect" answers was believed.

2. Other Information

In the statement offered by Detreich's sister in support of his paternity and acknowledgment of Andre, she answered that Detreich had another child, Detreisha. The claims folder reflects that a benefits claim was filed after Detreich's death on behalf of Detreisha, (born in late 1974), who was awarded benefits as an out of wedlock intestate heir of Detreich under Michigan law. Detreisha's mother is not Amanda .

Among the evidence supporting Detreisha's claim are statements from Detreich's mother and the sister, who gave similar statements in support of Andre's claim, and statements from two other sisters. All four statements respond negatively to the question of whether Detriech had any other children. All were made prior to the date Andre's claim was filed.

The claim filed by Detreisha's mother, Marie, states that

Detreich. 8m does have another child in Spain. He is 17 or 18 years old. His birthday is in July .... Andre is the child's name but his whereabouts are unknown.

The claims folder also contains an overpayment recovery questionnaire signed by Detreich in 1980. Where asked to list those he supports either fully or in part, he listed Detreisha. The signature on this form and elsewhere in the file appears to be the same as on Other evidence that supported Detreisha's claim: an Easter card to Detreisha and a written August, 1979 notarized and witnessed statement of Detreisha's birth signed by Detreich as "father."

A final item of information of some relevance appears in J. 's statement in support of Andre's claim. He reports that when he married Amanda in 1972, she had another child in addition to Andre, a daughter named Tanya.

ANALYSIS

1. Under Michigan Law, Claimant Is Not the Intestate Heir of DWE

There is no evidence on which to base benefits for Andre under the "federal tests" of §216(h){3)(C} of the Social Security Act. Andre's claim must therefore rest on the state law test of §216{h}{2){A), whether he would be considered the child of the DWE under such law as would be applied by the courts of Michigan in determining the devolution of intestate personal property.

It is undisputed that Andre was not born or conceived during a marriage. His claim is therefore governed by M.C.L.A. 700.111(4), as set out in POMS GN T00306.135. For purposes of intestate succession under Michigan law, a man is considered to be the father of a child born out of wedlock if any of three circumstances exist. The first two are a written acknowledgment by the man recorded in probate court or a successful written request by the man to correct the child's birth certificate. Neither applies to the DWE. The third circumstance is that

The man and the child have borne a mutually acknowledged relationship of parent and child which began before the child became age 18 and continued until terminated by the death of either.

This provision has been interpreted by Michigan appellate courts only once to date. Matter of Estate of V~, 327 N.W. 2d 340 (Mich. App. 1982). The facts of that case do not bear on the present claim. The court's ruling, however, makes clear that the requirement of a "mutually acknowledged relationship" between the father and child is to be taken literally and determined by reference to the actions of those individuals only. ^[12] Id. at 342

In our opinion, the weight of the evidence does not permit a determination that Andre and Derreich had a mutually acknowledged relationship as father and son. Amanda 's initial statements when she filed the claim in September 1983 are completely inconsistent with concluding that such a relationship existed.

Amanda's later correction of her statements is not, in our opinion, credible. While we defer to the DO worker's superior opportunity to judge demeanor, we think the sincerity of Amanda's explanation is beside the point. The fact that she might have been ill the day she made her initial statement does little to explain why she gave explicit information that was so "incorrect."

We also recognize that the claim of mutual acknowledgment is supported by the DWE's mother and sister. Again, the credibility and weight of the statements are diminished by other evidence. Prior to Andre's claim, both relatives in supporting the benefits claim for the DWE's child by another woman, Detriesha, answered that Detreich had no other children. Two other sisters gave the same answer in their statements in support of Detreisha's claim. ^[13]

The sequence of these statements strongly suggests that Amanda later learned of the unfavorable impact on Andre's claim of her initial statements. In this light, the weight of Andre's own later statement in support of his claim is diminished as well.

Several other factors also weigh in the balance against the determination that the DWE and Andre had a mutually acknowledged relationship. There is the contrast between the kind of documentary evidence Detreisha's mother was able to produce in support of her claim and the absence of same in Andre's claim. There is the discrepancy between the nearly identical descriptions of support that the DWE's relatives report for both children and the fact that the DWE listed Detreisha only as a dependent on the overpayment recovery questionnaire. Amanda's credibility is also hurt by the information from J. that she had another child, Tanya, when he married her. Amanda not only fails to mention this child, but her existence appears inconsistent with her statement that until her marriage, Detreich was the only man with whom she was involved. ^[14]

None of these other factors alone is conclusive or particularly damaging. ^[15] They do, however, reinforce our opinion based on the conflicts among the primary statements in support of Andre's and Detreisha's claims. The weight of the evidence does not support the conclusion that there was a mutually acknowledged relationship between claimant and the DWE.

2. Correction Of Claimant's Birth Certificate To Show Still-living Mother's Former Husband As Father Does Not Bar A Determination That Claimant Is An Intestate Heir Of The DWE

As explained above, we believe the evidence does not support the claim for child's benefits in this case. Therefore, the outcome of the claim is the same regardless of the effect of the birth certificate listing J. as claimant's father. For future reference, however, we reach the question asked. In our opinion, the birth certificate here does not preclude applying the mutually acknowledged relationship provision to the relationship between claimant and the DWE because the father named in the certificate is still living and disavows paternity. This opinion, however, is limited to these facts and does not address other circumstances.

a)The 1974 Certificate Invokes The Legitimation Statute

You are correct in stating that under M.C.L.A 700.111(4)(b) the effect of the 1974 "correction" of Andre's birth certificate to show J. as his father was to make him legitimate under that later law. M.C.L.A. 700.111(5). That step also made him the contingent intestate heir of J. M.C.L.A. 700.111(4). These effects, however, require a written request by Amanda and J. for the substituted birth certificate. M.C.L.A. 700.111(4)(b).

The claims file does not indicate the basis on which the J obtained the certificate. The law in effect in 1974 when the certificate was obtained provided that a new birth certificate for an illegitimate child could be issued based on evidence of alleged intermarriage of the child's natural parents, such as affidavits, certified copies of records, and so forth, or on similar evidence that facts in the original certificate are not correct. M.C.L.A. 326.17.

In your request for a legal opinion, however, you advised us that SSA policy for this period is to presume written acknowledgment where a man's name has been added to the birth record of an illegitimate child, absent evidence to the contrary, citing Regional Transmittal No. 71, 01/78, §R2420. You have advised further that at that time the Michigan Bureau of Vital Statistics required either an acknowledgement of paternity filed with the probate court or evidence of intermarriage to add a man's name to a birth certificate. Id.

We have previously advised you that the Michigan legislature intended the legitimation statute to generously expand the class of illegitimate children who could inherit from their fathers. See Jeffrey , supra. When M.C.L.A. §700.111(4)(b) was enacted, another statute, M.C.L.A. 333.2872, had replaced §326.17. It requires both a written request and a probate court acknowledgement of paternity to obtain a birth certificate for a child born out of wedlock corrected as to paternity. To merely change the child's surname requires a written request only. M.C.L.A. 333.2872. M.C.L.A. 700.111(4)(a) provides for legitimation by a probate court acknowledgement alone, if properly executed. If M.C.L.A. 700.111(4)(b) could be satisfied only by a birth certificate issued under the statute in effect when §700.111(4)(b) was enacted, M.C.L.A. 333.2872, the "acknowledgement" and "birth certificate" provisions of the legitimation statute would overlap with each other. The step that is sufficient to legitimate a child under §700.111(4)(a) — a probate court acknowledgement — is, under §333.2827, only part of what is required to obtain a substituted birth certificate that legitimates under §700'.111(4)(b). §700.111(4)(b) would appear redundant. A non-duplicative reading is presumed and preferred.

We therefore conclude that the Michigan legislature intended to reach with M.C.L.A. 700.111(4)(b) all children with paternity-corrected birth certificates that were valid when issued. This legislative intent and the requirements of former M.C.L.A. 326.17 are not in conflict with giving effect to SSA's policy in Regional Transmittal No. 71 to assume that J. and Amanda submitted some document sufficient to be considered a "written request" under M.C.L.A. 700.111(4)(b). Therefore, based on that assumption the 1974 certificate was effective to make claimant the contingent intestate heir of J. as of the DWE's death.

b) The 1974 Certificate Is Not Irrebutable In This Case

We have concluded that the 1974 birth certificate operated to legitimate claimant as the child of J. under the later statute . We next consider the pivotal question under §216(h)(2)(A): whether a state court asked to declare Andre to be the intestate heir of the DWE under the "mutually acknowledged relationship" provision of M.C.L.A. 700.111(4)(c) could do so, given the effect of the birth certificate under M.C.L.A. 700.111(4)(b), (5).

In our opinion, a court in these circumstances could declare Andre the DWE's intestate heir because the "father" named in the certificate is still living and he disavows paternity. We reach this conclusion based on three features of established Michigan law, unless and until there is a Michigan Supreme Court decision to the contrary.

First, Michigan law clearly provides that the legitimate status of a child born or conceived in wedlock, and the husband's presumed status as natural father, may be rebutted. M.C.L.A. 700.111(2)-(3); Serafin v. Serafin, 258 N.W.2d 461 (Mich. S. Ct. 1977) [divorce proceeding]. The statute also makes clear that, for purposes of legitimation and intestate inheritance, only the presumed natural father may disprove the presumption, and that this exclusive right terminates upon the death of the presumed parent.

We can see no reason for different treatment with regard to the status conferred on the legitimated child by the acts of a "father" that meet §700.111(4)(a)-(c). Principles of "Equal Protection" provide a reason to treat the two categories of cases consistently. Moreover, since the statute is silent as to this point with regard to children born or conceived out of wedlock, we expect a court would look to the provisions for children born or conceived in wedlock for guidance.

Second, the possibility of spurious claims of paternity is judicially recognized. See In re B~'s Estate, 323 N.W. 2d 671, 678 (Mich. App. 1982), citing Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518 (1978). If the effect of M.C.L.A. 700.111(4) were irrebuttable, the law would permit no remedy for fraud or mistake that is discovered by a "father" who had legitimated a child on which he might wish to act.

Finally, under Michigan law an official record such as a birth certificate corrected to show paternity is prima facie evidence of the facts stated therein. M.C.L.A. 333.2886. ^[16] Prima facie evidence is, by definition, that which is conclusive unless and until rebutted. ^[17] Accord, People v. Nichols, 341 Mich. 311 (1954), [mother's naming of third-person on birth certificate as father does not estop paternity claim against another].

We emphasize that this analysis is 'confined to the situation present here: the "father" whose legitimation is to be rebutted is still living, and he joins in the proof disavowing his paternity. The statute, §700.111(3), implies a different result where the "father" whose paternity is to be disproved is no longer living, or, possibly, is living, but does not disavow paternity. The outcome in those other circumstances is unclear under Michigan law, with no guiding court decisions. Should a claim require rebutting the paternity otherwise established by M.C.L.A. 700.111(4) where the "father" is deceased or, if living, not involved in the rebuttal, please resubmit the question. ^[18]

Thus, this particular claimant's status as contingent intestate heir and legitimated son of J. by operation of M.C.L.A. 700.111(4)(b) is rebuttable. If rebutted, claimant's status as heir of another may be reached. The standard for rebuttal is clear and convincing evidence, see Serafin v. Serafin, supra, which is arguably met in this case. However, as noted previously, we do not think that a court would find the test of M.C.L.A. 700.111(4)(c) met on the present evidence as to Detreich by either a preponderance of the evidence, let alone clear and convincing evidence, which arguably is the standard. See Raleigh v. Watkins, 293 N.W.2d 789, 791 (Mich. App. 1980) [in child custody proceeding, man claiming paternity must both rebut presumption of paternity and prove his own by clear and convincing evidence]. ^[19]

LEGITIMACY AND LEGITIMATION — OTHER METHODS OF LEGITIMATION OR LEGITIMIZING—MICHIGAN

Although previous opinions held that it is possible legally to establish the existence of mutually acknowledged relationships as a basis for establishing paternity even in cases where the alleged father has died prior to the birth of the child, Michigan courts have recently held that when the death of the father precedes the birth of a child born out of wedlock, inheritance rights of the child may not be established under any circumstances. This is considered the law of Michigan until such time as it is overruled, and supersedes prior opinions on this issue. (Mutually Acknowledged Relationship Provision of Michigan Intestacy Statute — RAV (D~), to AC for OPP, 05/02/83.)

This is in reference to your request for our assistance in determining whether, based upon a recent Michigan Court of Appeals decision, a posthumously born illegitimate child may inherit from his father under the "mutually acknowledged relationship" requirement of Michigan's intestacy statute. Mich. Comp. Laws Ann. 700.111(4)(c) (West 1980). In Estate of V~, No. 57128 (Mich. App. Sept. 14, 1982) (available April 15, 1983 on LEXIS, Michigan library), the Michigan Court of Appeals held that a posthumously born illegitimate child cannot be determined to be the heir of the purported natural father for purposes of intestate succession under Michigan law. For the reasons discussed below, we conclude that the Social Security Administration should follow this decision, unless and until it is reversed or otherwise overturned by the Michigan Supreme Court.

The background of this issue may be briefly summarized: Prior to July 1, 1979, an illegitimate child in Michigan could inherit from his natural father only if his parents or the father executed a recorded acknowledgement. Mich. Comp. Laws Ann. 702.83 (West 1979). In Easley v. John Hancock Mutual Life Insurance Company, 271 N.W.2d 513 (Mich. 1978), the Michigan Supreme Court declared this provision to be unconstitutional. The father in E~^[20] had, during his lifetime, acknowledged his paternity in a filiation proceeding and had been ordered to contribute to the child's support. The Michigan Supreme Court relied on Trimble v. Gordon, 430 U.S. 762 (1977), in which the Supreme Court held unconstitutional an Illinois statute allowing an illegitimate child to inherit from his father only if the child was legitimated by the marriage of his parents and acknowledgement by the father. The purported father in T~ ^[21] had been found to be the child's father in a judicial decree ordering him to contribute to the child's support. The Michigan Supreme Court in E~ stated that T required heirship whenever there has been a judicial determination of paternity. 271 N.W.2d at 515.

The Michigan Probate Code was revised effective July 1, 1979 (P.A. 1978, No. 642), following the decisions in T and E, and included a new provision governing the inheritance rights of illegitimate children. Section 111(4) of the Probate Code, Mich. Comp. Laws Ann. 700111(4) (West 1980), provides that an illegitimate child may inherit from his purported father if: (1) the man and the mother jointly acknowledge the man's paternity "in a writing . . . recorded at any time during the child's lifetime in the office of the judge of probate;" (2) the man joins with the mother in a written request for a correction of the child's birth certificate; or (3) "the man and the child have borne a mutually acknowledged relationship of parent and child which began before the child became age 18 and continued until terminated by the death of either."

The first two procedures prescribed by the statute for establishing inheritance rights are, by their terms, inapplicable in the cases of posthumously born children. However, in Jeffrey, E-145, RA V (K~) to Director, IPB V, 3/4/82, we stated that the "mutually acknowledged relationship requirement" could be met where the purported father died prior to the birth of the child. We based this conclusion on several grounds. First, we observed that, in view of T~ and E~, "the Michigan legislature clearly attempted to expand the classes of illegitimate children who may inherit from their parents." Cagle, at p. 3. Second, we noted by way of analogy that several court decisions and a Social Security Ruling (68-22) had indicated that a posthumous child is not foreclosed from entitlement under the criteria of 42 U.S.C. 416(h)(3)(C)(ii) (the "purely federal" test) merely because he or she was born following the wage earner's death. Finally, the Chief Judge of a Michigan Probate Court, who had assisted in drafting the Revised Probate Code, had informally advised this office that acknowledgement b the posthumously born child of his purported father's paternity would likely satisfy the "mutually acknowledged relationship" requirement of the statute, since it is the mother who in most cases (whether or not the child is born posthumously) advises a child that a particular man is his or her father.^[22]

At the time of the C~ opinion, there were no reported Michigan cases interpreting the "mutually acknowledged relationship" requirement of 700.111(4)(c). On September 14, 1982, the Michigan Court of Appeals held in Estate of V~, No. 57128 (Mich. App. Sept. 14, 1982) (available April 15, 1983 on LEXIS, Michigan library), that 700.111 did not accord inheritance rights to posthumously born illegitimate children. The child in V~ ^[23] was born six days after the decedent's death. Relatives and friends of the deceased testified in the probate court proceedings that the deceased had orally acknowledged his paternity of the unborn child, had paid for the mother's medical care during her pregnancy, and had planned to marry the mother. The probate court held that the decedent's actions had satisfied the requirements of 700.111(4)(c).^[24] The Court of Appeals disagreed:

This interpretation of the statute eliminates the requirement of a 'mutually acknowledged relationship.' Both the ordinary and legal usages of the word 'mutual' require action by both sides. See Webster's Third New International Dictionary (1961), p. 1493, and Black's Law Dictionary (4th Ed., 1951), p. 1172.

The Court of Appeals also rejected the contention that 700.111(4)(c) requires acknowledgement of the father by the child when the father seeks to inherit from the child. The Court found that the legislature intended that mutual acknowledgement be required in both cases, since 700.111(5) provides the "the father . . . shall not be considered as (a) relative( ) of the child (for purposes of intestate succession) unless the child might have inherited from the father as provided in this section." The Court also rejected the contention that since 700.111(1) provides that "for all purposes of intestate succession, a child is the heir of each of his or her natural parents," noncompliance with the "mutually acknowledged relationship" requirement of 700.111(4)(c) was irrelevant if the probate judge determined that the deceased was the natural father of the child. Citing the principles that a statute must be construed as a whole and that the express mention of one thing in a statute implies the exclusion of other similar things, the court stated that the express mention in 700.111(4) of three circumstances under which, for purposes of intestate succession, a man is considered to be the father of an illegitimate child excludes all other circumstances.

The Court of Appeals concluded:

It appears to us that the Legislature intended a statutory scheme under which a child born out of wedlock and after the death of his or her purported natural father could not be determined to be the heir of the purported natural father for purposes of intestate succession.

As we mentioned earlier, at the time of our C~ opinion, no reported Michigan case had interpreted 700.111(4)(c). For the reasons already sated above, we believe that our position in

C~ - that the "mutually acknowledged relationship" requirement may be met in the case of a posthumously born child - was and still remains a legally supportable result. However, although the V~ Court correctly observed that the term "mutual" requires action "by both sides," this fact does not necessarily mean, in our opinion, that the action must be performed by both sides at the same time, although this result is probably implicit in the V~ holding.

Nevertheless, we acknowledged in the C~ opinion that 700.111(4)(c) "is subject to different interpretations." The V~ holding represents a reasonable interpretation of the statute, although not the only possible one. Although for purposes of applying state law under 42 U.S.C. 416, only decisions of a state's highest court are binding upon the Secretary, we believe that a decision of an intermediate court should be followed unless it is likely that that decision would be reversed or overturned by the state's highest court. We cannot say that the V~ holding is either inconsistent with the law enunciated by the Michigan Supreme Court or is likely, as an issue of first impression, to be either reversed by the Michigan Supreme Court or overturned in a subsequent case. Moreover, the Michigan Court of Appeals is a single court with statewide jurisdiction, although it sits in panels of three for individual cases. The holding of a panel in one case is rarely overturned by another panel in a subsequent case. The holdings of the Michigan Court of Appeals are binding on all trial courts in the state absent a contrary decision by the Michigan Supreme Court. Therefore, we conclude that unless and until there is a Michigan Supreme Court decision to the contrary, the Social Security Administration should follow the V~ decision, with the result that a posthumously born child cannot be considered the heir of his purported father under Michigan Law.

Your memorandum also asks whether, in light of V~, the "mutually acknowledged relationship" requirement may be met when the purported father dies during the child's infancy. V~ did not address this situation, although we believe that the decision necessarily implies that acknowledgement by the child of the deceased's paternity cannot be based on statements by the mother or others to the child following the purported father's death. Instead, as discussed above, V~ implies that the acknowledgement by both father and child occur at approximately more or less the same time. Whether mutual acknowledgement has occurred in the "infant child" situation must be determined on a case-by-case basis. We recognize that it may be virtually impossible to establish a "mutually acknowledged relationship" in the cases of very small infants.

However, we believe that the "mutually acknowledged relationship requirement" must be applied liberally in the "infant child" cases. In the S~ opinion, cited above, the wage earner had died when the child was approximately three years old. Prior to his death, the wage earner contributed small sums of money to the child's support and occasionally visited and played with the child. The Administrative Law Judge, in a decision issued on June 27, 1980, concluded that the wage earner and the child had not borne a "mutually acknowledged relationship of parent and child," since the child had been too young to recognize the nature of his relationship with the man who had visited and played with him. The Appeals Council, in a decision issued on September 9, 1980, reversed the decision of the Administrative Law Judge, stating that the statute does not require the child's acknowledgement to be "rational." We believe that the Appeals Council decision should be used as a guide in future cases unless and until a Michigan court holds to the contrary. We emphasize again, however, that it may be difficult, if not impossible, to establish a "mutually acknowledged relationship" in the "infant child" cases.

LEGITMACY — Presumption and Proof

Paternity may be established by a "mutually acknowledged relationship" of parent and child. In a case where the parent dies before the birth of the child the relationship may be established by statements of third parties as to the oral statements of the purported father and the mother of the child who may acknowledge the relationship on behalf of the child. ( Jeffrey, - RA V (K~) to ARC, GLPSC - 3/4/82)

This is in reference to your January 22, 1982 memorandum inquiring whether the "mutual acknowledgment" provision of section 700.111(4)(c) of the Revised Michigan Probate Code would permit claimant's entitlement to child's insurance benefits under section 216(h)(2)(A) of the Social Security Act.

The wage earner, Jeffrey died domiciled in Michigan on May 5, 19xx. Jessica was born to Robin in May. The wage earner was the reputed father. Robin and the wage earner never married one another nor was either party married at the time of Jessica's conception or birth. Also, there is no written acknowledgment or corrected birth record which would satisfy sections 700.111(4)(a) or (b) of the Revised Michigan Probate Code. Robin her mother, and the wage earner's parents signed statements contained in the claims folder confirming that the wage earner is the father of the child. Prior to his death, there is evidence that the wage earner spoke of the child as his and bought baby supplies in anticipation of the birth.

The Michigan Probate Code was revised effective July 1, 1979 following two United States Supreme Court decisions and a Michigan Supreme Court decision. In Trimble v. Gordon, 430 U.S. 762 (1977), the United States Supreme Court held unconstitutional an Illinois statute allowing an illegitimate child to inherit from his father only if legitimated by the intermarriage of his parents and acknowledgment by the father. The father in T~ had been found to be the child's father in a judicial decree ordering him to contribute to the child's support.^[25] When the father died intestate, the child was excluded as a distributee because the statutory requirements for inheritance had not been met.

In Easley v. John Hancock Mutual Life Insurance Company, 271 N.W.2d 513 (Mich. 1978), the child's father had, during his lifetime, acknowledged his paternity in a filiation proceeding and had been ordered to contribute to the child's support. Because the provisions of former section 702.83 of the Michigan Probate Code requiring intermarriage or recorded acknowledgment had not been met, the child was unable to share in the father's estate. The Michigan Supreme Court held that section 702.83 was unconstitutional under Trimble v. Gordon, supra.

In Lalli v. Lalli, 439 U.S. 259 (1978), decided three weeks after E~, the United States Supreme Court upheld a New York statute requiring illegitimate children, in order to inherit from their fathers, to produce a court order of affiliation made during the father's life. The Supreme Court distinguished its decision in T~ by pointing out that the Illinois statute was constitutionally flawed since by requiring not only acknowledgment by the father and intermarriage children of intestate men in excess of justifiable statutory purposes. 439 U.S. at 266, 273.

Thus, based on the T~ decision as implemented by E~ in Michigan, it appears that the Michigan legislature intended to expand the class of illegitimate children who may inherit from their fathers by enacting the Michigan Revised Probate Code (Act 642 of 1978, as amended by Act 51 of 1979). Our office has previously answered a number of questions concerning the Michigan Revised Probate Code. RA V (D~) to Acting RC SSA V (SSA-9269) (D~), 6/26/80.

Section 700.111(4)(c) of the Revised Code provides:

(4) If a child is born out of wedlock or if a child is born or conceived during a marriage but not the issue of that marriage, a man is considered to be the natural father of that child for all purposes of intestate succession if any of the following occurs:

* * *

(c) The man and the child have borne a mutually acknowledged relationship of parent and child which began before the child became 18 and continued until terminated by the death of either. (Emphasis added)

There are no reported Michigan Court decisions interpreting this provision. You have inquired whether Michigan courts would find a "mutually acknowledged relationship" in the case where the father died before the birth of the child and in the case of a very young child.

The above-quoted statutory provision is subject to different interpretations. The questions you raised in this case were briefly addressed as follows at page three of our aforementioned June 26, 1980 memorandum:

The "mutually acknowledged relationship" may be proved through the statements of third persons who heard oral acknowledgments by the deceased. In addition, in cases where the child is incapable of recognizing and/or ^[26] testifying to such a relationship (for example, where the father died prior to the birth of the child or during its infancy, or where the child is otherwise demonstrably incompetent to make such an acknowledgment), acknowledgment on the part of the child may be established by the mother, as the child's representative.

There were two bases for the position taken in our June 26, 1980 memorandum with regard to acknowledgment by unborn and very young children. First, in view of T, the Michigan legislature clearly attempted to expand the classes of illegitimate children who may inherit from their parents. Secondly, this office solicited the informal opinion of a Chief Judge of a Michigan Probate Court who assisted in drafting the Revised Probate Code and presented him with the questions you have raised herein. The Chief Judge pointed out that it is the mother who in most cases advises a child that a particular man is his or her father. The judge was of the opinion that it would be possible under 700.111(c)(4) of the Revised Code for an unborn child or infant to mutually acknowledge the father. We agree that such relationship could be established consistent with Regional Transmittal No. 410 to the Claims Manual dated May 29, 1981.

Unless and until there is a Michigan Supreme Court decision to the contrary, we believe that acknowledgment of an unborn or infant child toward the father is possible. Accordingly, we suggest that the subject case be fully developed in order to attempt to document and/or establish a "mutually acknowledged relationship" between Jessica and her father, Jeffrey .

1. Legitimating Acts by Parents — Constitutionality

Section 702.83 of Michigan statute providing that in order for a child born out of wedlock to have inheritance rights, the child must be legitimated by the intermarriage of his or her parents or in the absence of such intermarriage, by written acknowledgment by other parents executed and recorded in the same manner as deeds, is unconstitutional (Michigan Supreme Court).

2. Legitimatizing Acts of Parents — Corrective Statute

Section 700.111 of Michigan statute providing for inheritance rights to a child born out of wedlock if (1) the father and mother join in a written acknowledgment of the child and the acknowledgment is recorded, (2) the father and mother join in a request for and obtain a corrected certificate of birth, or (3) the father and child are shown to have born a "mutually acknowledgment relationship of parent and child" beginning before the child became age 18 and continuing until the death of either, applies to any cases pending on or after July l, 1979 (the effective date of the statute) regardless of the date of death of the wage earner.

This is in reference to your request for our assistance in determining the appropriate month of entitlement of the claimant to child's insurance benefits. We conclude, for the reasons outlined below, that the claimant is entitled to full retroactive benefits based on his April 1977 application.

The relevant facts may be briefly summarized: The claimant, Jonathan, was born in July. Neither the claimant nor his mother, JoAnn, lived with the wage earner at any time prior to the latter's death on February. The wage earner was never declared by a court to be the father of the claimant, nor was the wage earner ever ordered by a court to contribute to the claimant's support. While the wage earner never executed a written acknowledgement of paternity, he did orally acknowledge his paternity to a number of individuals. Prior to his death, the wage earner occasionally contributed small sums of money to the claimant's support and occasionally visited and played with the claimant.

On April 8, 1977, JoAnn filed a claim for child's benefits on behalf of Jonathan on the account of John . Following denial of the application, a hearing was requested. On June 22, 1978, the Administrative Law Judge issued a decision holding that the claimant did not qualify as the child of the wage earner under Section 216(h)(3) of the Social Security Act, 42 U.S.C. §416(h)(3). The issue of entitlement under Section 216(h)(2)(A) of the Social Security Act was not raised by the claimant, and therefore was not addressed in the decision. The latter section provides that a claimant will be considered the child of the wage earner if he would be able to inherit from the wage earner under pertinent State law. At the time of the wage earner's death, Michigan law provided that a child born out of wedlock could inherit from his father if legitimated by the intermarriage of his parents or, in the absence of such intermarriage, by written acknowledgement by both parents, executed and recorded in the same manner as deeds. M.C.L.A. §702.83 (West). The requirements of §702.83 were not satisfied in the instant case.

The Appeals Council affirmed the decision of the Administrative Law Judge on September 11, 1978. The claimant filed an action for judicial review on April 3, 1979. At the request of the Secretary, the District Court remanded the case on August 31, 1979. The Secretary requested remand because a transcript of the administrative hearing could not be prepared.

Prior to the District Court's remand, the Michigan Probate Code was revised effective July 1, 1979.. As part of this revision, §702.83 was replaced by new Section 700.111. The latter section now provides that a child born out of wedlock may inherit from his father if (1) the father and mother join in a written acknowledgement of the child and such acknowledgement is recorded, (2) the father and mother join in a request for, and obtain, a corrected certificate of birth, or (3) the father and child are shown to have borne a "mutually acknowledged relationship of parent and child" beginning before the child became age 18 and continuing until the death of either.

The new statute followed decisions of the United States and Michigan Supreme Courts which affected the validity of former Section 702.83. In Trimble v. Gordon, 430 U.S. 762 (1977), the United States Supreme Court held unconstitutional an Illinois statute allowing an illegitimate to inherit from his father only if legitimated by the intermarriage of his parents and acknowledgement by the father. The father in T~ during his lifetime had been found to be the child's father in a judicial decree ordering him to contribute to the child's support. When the father died intestate, the child was excluded as a distributee because the statutory requirements for inheritance had not been met.

In Easley v. John Hancock Mutual Life Insurance Con, any, 271 N.W. 2d 513 (Mich. 1978), the child's father had, during his lifetime, acknowledged his paternity in a filiation proceeding and had been ordered to contribute to the child's support. Because the provisions of former Section 702.83 (requiring either intermarriage or recorded acknowledgement) had not been met, however, the child was unable to share in the father's estate. The Michigan Supreme Court held that "such inequality of treatment . . by failure to meet the conditions contained in M.C.L.A. §702.83 . . . is barred, where filiation has been judicially declared, by Trimble v. Gordon." 271 N.W. 2d at 514-515.

While it is not clear from the E~ decision whether the Court held §702.83 unconstitutional per se or merely unconstitutional as applied, we believe that the decision is best read as declaring the statute unconstitutional per se. Nor is it clear that T~ necessitated a holding that §702.83-was unconstitutional. Whereas the Illinois statute involved in T~ required both intermarriage and acknowledgement as preconditions to the inheritance rights of an illegitimate child, §702.83 required only either intermarriage or acknowledgement. In Lalli v. Lalli, 439 U.S. 259 (1978), decided three weeks after E~, the Supreme Court upheld a New York statute requiring illegitimate children, in order to inherit from their fathers, to produce a court order of affiliation made during the lifetime of the father. The Court distinguished its decision in T~:

The Illinois statute [in T~ was constitutionally flawed because, by insisting upon not only an acknowledgement by the father, but also the marriage of the parents, it excluded "at least some significant categories of illegitimate children of intestate men . . ."

The Illinois statute in T~ was constitutionally unacceptable because it effected a total statutory disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage of their parents. The reach of the statute was far in excess of its justifiable purposes. [The New York statute] does not share this defect. Inheritance is batted only where there has been a failure to serve evidence of paternity during the father's lifetime in the manner prescribed by the State. 439 U.S. at 266,273.

Moreover, the Court stated that its decision did not "restrict a State's freedom to require proof of paternity by means other than a judicial decree." States were allowed to "prescribed any formal method of proof, whether it be similar to that provided by [the New York statute] or some other regularized procedure that would assure the authenticity of the acknowledgement." 439 U.S. at n.8.

Because former Section 702.83 of the Michigan statutes provided that a recorded acknowledgement itself was sufficient to establish the inheritance rights of illegitimate children, the statute is arguably valid under the Supreme Court decisions in T~ and L~. Nevertheless, the Michigan Supreme Court did hold that §702.83 was unconstitutional, and we are bound by that decision in the absence of it being overturned by the United States Supreme Court. The decision in E~ was not appealed to the Supreme Court and we therefore accept the decision of the Michigan Supreme Court as controlling on the constitutionality of §702.83.

Following the District Court's remand in the instant case, a second administrative hearing was held on May 15, 1980. The claim t contended, through his attorney, that he and the decedent had borne a "mutually acknowledged relationship of parent and child" and that he was therefore the heir of the decedent under new Section 700.111. The Administrative Law Judge, in a decision issued on June 27, 1980, rejected this contention and denied the claim. The Administrative Law Judge determined that the claimant had been too young to recognize the nature of his relationship with his father. The Appeals Council, in a decision issued on September 9, 1980, reversed the decision of the Administrative Law Judge and held that the claimant was entitled to child's benefits.

Benefits were paid to the claimant beginning July 1979 as the effective date of the revised Michigan Probate Code. On December 16, 1980 JoAnn filed, on behalf of the claimant, a request for reconsideration of the effective date of entitlement. The claimant contended that Section 700.111 of the revised Probate Code had been repealed, and that the former law, under which he was entitled to benefits, had been substituted in its place. The claimant argues, therefore, that he is entitled to full retroactive benefits based on his April, 1977 application.

We believe that the claimant is entitled to full retroactive benefits, but for quite different reasons than those advanced by the claimant. Section 700.111 of the revised Probate Code has not been repealed by the Michigan legislature, and in any event the claimant did not qualify as an heir of the wage earner under former Section 702.83. However, Section 700.992(a) of the revised Probate Code, of which §700.111 is a part, provides that the Code "applies to any proceedings in court then pending [on its effective date] or thereafter commenced regardless of the time of the death of the decedent . . ." We have found no subsequent statutory revision nor case restricting the meaning of this provision. Thus, §700.111 is applicable to claims pending for decision before the Social Security Administration on or after July 1, 1979, the effective date of the revised Probate Code, regardless of the date of the wage earner's death. In the present case, the claim was pending before SSA after August 31, 1979, the date of the District Court's remand. Because §700.111 has retroactive application, the claimant is entitled to full retroactive benefits based upon his April 1977 application.

Even if §700.111 did not have retroactive application, we believe that the Secretary would be required to apply it retroactively so as to entitle the claimant to full benefits. This is so because absent such application, the Secretary would be applying to the period prior to July 1, 1979 a statutory provision declared unconstitutional by the Michigan Supreme Court. While, as discussed above, the decision of the Michigan Supreme Court in E~ holding former Section 702.83 invalid is somewhat questionable, we must accept the decision of that Court as controlling.

A situation similar to that involved in the instant case was addressed in Social Security Ruling 80-13. SSR 80-13 announced that with regard to all claims pending before SSA on or after July 10, 1978, the date of the District Court decision in Allen v. Califano, 456 F. Supp. 168 (D. Md. 1978), the Maryland intestacy statute in effect subsequent to January l, 1970 would be applied in cases where the wage earner died domiciled in Maryland prior to January l, 1970. In Allen, plaintiffs who had failed to qualify for child's benefits under the intestacy statute in effect prior to 1970 successfully claimed that such statute was unconstitutional and therefore could not constitutionally be used as a standard under Section 216(h)(2)(A) of the Social Security Act. The rationale of SSR 80-13 applies equally to the instant case.

We emphasize, however, that even had former Section 702.83 not been declared unconstitutional in E~, new Section 700.111 would still have retroactive application by virtue of the provisions of Section 700.992(a). Thus, it is unnecessary to determine at this time whether new Section 700.111 should be applied to claims pending before SSA on or after July 1, 1979 (the effective date of the revised Probate Code) or to claims pending before SSA on or after November 20, 1978 (the date of the Michigan Supreme Court's decision in E~). Since the instant claim was pending before SSA after August 31, 1979, it is clear in any event that the claimant is entitled to full retroactive application of §700.111, even though the wage earner died in 1976. Moreover, the determination of which claims Section 700.111 should be retroactively applied to those pending on or after November 20, 1978 or those pending on or after July 1, 1979 is one of policy most appropriately resolved by your central office.

We conclude, therefore, that the claimant is entitled to full retroactive benefits based on his April 1977 application. The claims file is returned herewith.