QUESTION PRESENTED
Whether Jonathan D. C~ (the claimant), who was born after the death of number holder
Jonathan C~ (NH), is entitled to survivor's benefits as the child of the NH. If so,
what is the effective date of paternity/legitimation?
OPINION
The claimant is entitled to survivor's benefits on the NH's account based on a posthumous
Kinship Order which found that the child was entitled to inherit from the NH's estate
under New York law. The order meets all four prerequisites of Social Security Ruling
(SSR) 83-37c and thus, SSA is required to accept the state court's adjudication. The
effective date of legitimation is September 7, 2009, the child's date of birth.
BACKGROUND[1]
The NH died August 24, 2009, in Buffalo, NY. At the time of his death, the NH was
engaged to Ingrid P~. Ms. P~ resided in Burlington, Ontario, Canada. On September
7, 2009, Ms. P~ gave birth to the claimant in Hamilton, Ontario. The claimant's birth
certificate listed the NH as his father.
At the time of his death, NH had another child, Joanna L. C~ C~. Her mother is Mercedes
C~.
Ms. P~ filed a paternity petition in New York State Family Court, Erie County. On
November 24, 2009, the Family Court issued an order directing that DNA testing, using
a preserved sample from the NH, be done to determine the NH's paternity. DNA results
showed a 99.99% probability that the NH was the claimant's father. On December 15,
2009, the Family Court issued an Order of Filiation finding that the NH was the claimant's
father.
Because the Family Court issued its filiation order months after NH's death, and New
York intestacy laws provide that a non-marital child can inherit from his father only
if the filiation order was made during the father's lifetime, Ms. P~ appeared at an
evidentiary hearing on February 1, 2010, before New York State Surrogate's Court (Surrogate's
Court) to determine the NH's paternity and the claimant's inheritance rights from
NH's estate. N.Y. Est. Powers & Trusts Law (EPTL) §§ 4-1.2(a)(2)(A); 4-1.2(a)(2)(C).
The following made appearances in the matter: an attorney for the Erie County Public
Administrator; an attorney for Ms. P~, an attorney for Ms. C~, the Guardian ad Litem
for Joanna, and the Guardian ad Litem for the claimant. The Surrogate's Court found
that the DNA test results clearly and convincingly established that the NH was the
claimant's father. Based on testimony from a former colleague of the NH that the NH
was "very excited" about his expected child, the Court further found that the NH had
openly and notoriously acknowledged the claimant as his child well before the claimant
was born. On February 2, 2010, the Surrogate's Court issued a Kinship Order declaring
that NH was the claimant's father and that the claimant was entitled to inherit from
NH's estate.
On December 22, 2009, Ingrid P~ filed an application for child benefits on behalf
of the claimant. The NH's other child, Joanna, is currently being paid Social Security
Survivor Benefits on the NH's record. In the claim for Joanna, her mother - Ms. C~
- mentioned that the NH had had a pregnant girlfriend at the time he died.
ANALYSIS
A. Kinship Order and Memorandum
SSA is bound by the Kinship Order and Memorandum holding that the NH is the father
of the claimant and that the claimant is entitled as his son to inherit from the NH's
estate pursuant to EPTL § 4-1.2(a)(2)(C). Pursuant to SSR 83-37c, although the Commissioner
is not bound by the decision of a state trial court in a proceeding to which he was
not a party, he is not free to ignore an adjudication of a state trial court where
the following prerequisites have been 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. SSR 83-37c, adopting the holding of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973).
Here, the Kinship Order meets all four prerequisites. Regarding prerequisite one,
the judgment was issued by the Erie County Surrogate's Court, a State court of competent
jurisdiction. The judgment satisfies the second prerequisite because it was contested
before the state court by parties with opposing interests. Specifically, the attorney
for Ms. C~, and the Guardian ad Litem for Joanna appeared during the proceedings and
had interests that diverged from the interests of Ms. P~ and the claimant. Regarding
prerequisite three, the issue of paternity falls within the general category of domestic
relations law.
Finally, regarding prerequisite four, non-marital children may inherit from their
father when "paternity has been established by clear and convincing evidence and the
father of the child has openly and notoriously acknowledged the child as his own.
EPTL § 4-1.2 (a)(2)(C). With respect to this section of the law, New York courts have
generally allowed posthumous DNA testing to serve as "clear and convincing evidence."
[2] As one court explained:
There is no basis in law or logic to exclude the results of posthumously conducted
DNA tests on a decedent's genetic material from the category of "clear and convincing"
evidence under EPTL § 4-1.2 (a)(2)(C). This is particularly true where the material
is available without the drastic remedy of exhumation, comes from a reliable source,
and is amenable to accurate testing. To hold otherwise would ignore the precision
that DNA testing contributes to the paternity issue.
In re Estate of Bonanno, 745 N.Y.S.2d 813, 815 (N.Y. Surr. Ct. 2002) (citations omitted); see also In re Poldrugovaz, 851 N.Y.S.2d 254, 260-61 (App. Div. 2d Dept. 2008) (discussing evolution of judicial
interpretation of EPTL 4-1.2 (a)(2) and describing cases that allowed use of posthumous
genetic marker testing as clear and convincing proof of paternity).
Open and notorious acknowledgment is established when the putative father openly acknowledged
the child in his community. See In Re Poldrugovaz, 851 N.Y.S.2d at 264; see also Tumminia v. Savattere, 654 N.Y.S.2d 676_(N.Y. 2d Dept. 1997) (disclosure to friends and relatives); Matter
of Anne R. v. Estate of Francis C., 651 N.Y.S.2d 539 (N.Y. 2d Dept. 1996) (case decided pursuant to open and notorious
requirement for establishing paternity under Family Court Act; acknowledgment of paternity
in the community in which the child lives); Matter of Wilkins, 691 N.Y.S.2d 878_(Sur. Ct., N.Y. County 1999) (disclosure to family); cf. Matter of Gentile, 2002 WL 377024 (Sur. Ct., N.Y. County 2002) (statement made in confidence to spouse
and one friend did not constitute open and notorious acknowledgement).
The open and notorious prong of the intestacy statute is a factual one. Examples of
open and notorious acknowledgements have included the putative father's acknowledgement
that he was the father of his girlfriend's unborn child to his mother, sister, grandmother,
and the girlfriend's aunt. In re Estate of Thayer, 769 N.Y.S.2d 863, 865 (N.Y.Sur. 2003).
Here, the Kinship Order, which noted that posthumous DNA testing provided clear and
convincing evidence of the NH's paternity and that the testimony of a witness satisfactorily
established that the NH openly and notoriously acknowledged the claimant as his unborn
child, is consistent with New York statutory and case law. Accordingly, SSA may not
ignore the Kinship Order declaring that NH was the claimant's father and that the
claimant was entitled to inherit from NH's estate. SSR 83-37c.
B. Effective Date of Legitimation
Under current New York law, a child legitimated after birth is considered to be legitimate
from birth. POMS GN 00306.050; GN 00306.085.[3] Further, a non-marital child is the legitimate child of his father so that he and
his issue inherit from his father if paternity has been established by clear and convincing
evidence and the father has openly and notoriously acknowledged the child as his own.
EPTL§ 4-1.2(a)(2)(C); but see POMS GN 00306.575 (noting that EPTL § 4-1.2 only confers inheritance rights, not legitimacy). Therefore,
in this case, because paternity has been established by clear and convincing evidence
and the father openly and notoriously acknowledged the child as his own, the claimant
is the legitimate child of his father and the effective date of legitimation is September
7, 2009, the claimant's date of birth. EPTL 4-1.2(a)(2)(C); POMS GN 00306.050; GN 00306.085.
3 We believe that POMS GN 00306.575 is incorrect, in that New York law clearly states that legitimacy is conferred by
meeting any of the requirements of EPTL §4-1.2. We will submit a proposed POMS revision
to this effect. \
CONCLUSION
Based on the foregoing, an adjudicator could find that the claimant is entitled to
survivor benefits on the NH's account because he can inherit personal property from
him under New York intestacy law. The effective date on which the claimant could inherit
from NH is September 7, 2009.
Stephen P. C~
Regional Chief Counsel
By: ______________
Joanne J~
Assistant Regional Counsel