Program Operations Manual System (POMS)
TN 27 (12-00)
GN 00306.435 Colorado Intestacy Laws
For purposes of determining the heirs of someone who died intestate on or after that date, an individual is the child of his or her birth parents regardless of their marital status if the parent and child relationship may be established under Colorado's Uniform Parentage Act (UPA). Under the UPA, a man is presumed to be the natural father of a child if:
He and the child's natural mother are or have been married to each other and the child is born during the marriage, within 300 days after the marriage is terminated by death, annulment, declaration of invalidity of marriage, dissolution of marriage, or divorce, or after a decree of legal separation is entered by a court; or
Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:
If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within 300 days after its termination by one of the events specified in a. above; or
If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation; or
After the child's birth, the man and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; and:
He has acknowledged his paternity of the child in a writing filed with the court or registrar of vital statistics;
With his consent, he is named as the child's father on the child's BC; or
He is obligated to support the child under a written voluntary promise or by court order or by an administrative order issued pursuant to Colorado law; or
While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child; or
He acknowledges his paternity of the child in a writing filed with the court or registrar of vital statistics, which shall promptly inform the mother of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the court or registrar of vital statistics. If another man is presumed under this section to be the child's father, acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted; or
Genetic tests or other tests of inherited characteristics have been administered in accordance with Colorado law and the results show that the alleged father is not excluded as the probable father and that the probability of his parentage is 97 percent or higher. If the probability is less than 97 percent, and none of the other presumptions in a.- e. above applies, there is no presumption of paternity. The adjudicator should consider "any relevant evidence," as stated in 3. below.
State law does not specify who may provide the blood or tissue samples used for genetic testing; rather, the emphasis is on the reliability of the test results. Therefore, if the wage earner/putative father is deceased and blood or tissue samples from him are not available, a court would likely rely on the results of genetic testing that used blood and tissue samples from members of the deceased wage earner's family.
A presumption of paternity under the Colorado UPA may be rebutted in an appropriate action only by "clear and convincing evidence." The Colorado Supreme Court has held that "proof by 'clear and convincing evidence' is proof which persuades the trier of fact [i.e., SSA] that the truth of the contention is 'highly probable.' It is evidence which is stronger than a 'preponderance of the evidence.'" If there are two or more conflicting presumptions, the presumption that is founded on the weightier considerations of policy and logic (based on the facts) will be the controlling presumption. The presumption is rebutted by a court decree establishing paternity of the child by another man.
If there is no presumption of paternity, any evidence relevant to the issue of the child's paternity may be considered using a "preponderance of the evidence" standard (see definition in B. below), such as:
Evidence of sexual intercourse between the mother and alleged father at any possible time of conception;
An expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy;
Blood test results, weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity;
Medical or anthropological evidence relating to the alleged father's paternity of the child based on tests performed by experts. (Submit cases involving such evidence to the RCC per GN 01010.815 ff. in the absence of a legal precedent opinion.)
The parent-child relationship may also be established by a court order entered either before or after the death of the putative father.
From 07/01/73 through 06/30/95, a child acquired status of child and father acquired status of parent if:
(I) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
(I) paternity is established by an adjudication before the father's death or is established by a preponderance of the evidence, except that, for purposes of father acquiring status of parent under this provision, the father must have openly treated the child as his own and must not have refused to support it.
The Colorado Supreme Court has defined the "preponderance of the evidence" standard as "proof which leads the [fact finder, i.e. SSA] to find that the existence of the fact is more probable than its nonexistence.”
Prior to 07/01/73, a child acquired status of child if:
(I) parents intermarried and father subsequently recognized child; or
(I) if father is alive after 05/11/59, the father during his lifetime in writing or by his conduct, or otherwise, acknowledged the child to be his and regularly contributed to his/her support and maintenance for a reasonable period prior to his death.
Prior to 07/1/73, the father acquired status of parent if child is alive after 05/11/59 and:
(I) the parents intermarried and father subsequently recognized the child, or
(I) during child's lifetime, father, in writing, by his conduct, or otherwise acknowledged the child to be his and regularly contributed to his/her support and maintenance for a reasonable period prior to his death.