You asked us to research the laws of the states in Region V to determine how the termination
of parental rights affects a child's right to inherit from its natural parents in
the absence of subsequent adoption by other individuals and, consequently, the child's
potential entitlement to Social Security benefits. We discuss each state's law below.
Whether Justin, the biological child of Yaneth, is entitled to survivor benefits on
the record of his alleged biological father, Lemitre, the deceased number holder (NH).
Justin is entitled to survivor benefits on the NH’s account because he can inherit
personal property from the NH under New York’s intestacy law.
Based on the information you provided we understand the facts as follows:
The NH died on June 8, 2001 at Coney Island Hospital in Brooklyn, New York, from a
gunshot wound to the chest. The death certificate lists New York (Woodside Queens)
as the NH’s usual place of residence. Therefore, the NH was domiciled in New York
at the time of his death.
On January, seven months after the NH’s death, Yaneth gave birth to Justin at Elmhurst
Hospital in Queens, New York. The father’s name is not listed on the birth certificate.
Yaneth filed an application for survivor benefits for Justin on the record of the
deceased NH on July 31, 2007. Her claim was denied on August 9, 2007, because there
was insufficient evidence to prove that the NH was Justin’s father. Yaneth filed a
subsequent claim on December 8, 2011, and provided additional evidence, including
notarized statements from several of the NH’s family members.
The notarized statement from the NH’s mother, Yolanda, dated December 7, 2011, states
that Justin is her grandson and that her son, Lemitre (the NH), is Justin’s father.
Yolanda further stated that Lemitre (the NH) had a “stable relationship with Yaneth
” and that he told her that Yaneth was pregnant with his child. 
Yaneth also submitted notarized statements from the NH’s two siblings (Rafael ) dated
December 5, 2011, and notarized on December 5, 2011, and December 7, 2011, respectively.
In those statements, the NH’s siblings state that Justin is their nephew, and that
their brother, Lemitre (the NH), is the father. They further state that Lemitre “had
a stable relationship with Yaneth and before he passed away he told . . . [them] she
was pregnant with his child.” Additionally, a Report of Contact prepared by an SSA
employee, K. , notes that the NH’s mother was present at the interview with Yaneth,
and the NH’s mother confirmed that the NH had told members of the family that Yaneth
was pregnant with the NH’s child. This Report of Contact also notes that Yaneth stated
that the NH was married to someone else when she became pregnant with his child, but
that he did not live with his wife. Yaneth further reported that the NH did not live
with her either. She added that the NH did help her financially when he could, but
that he did not come to any doctor appointments, and she did not list his name on
any medical records because she was only two months pregnant. In a “Child Relationship
Statement,” Yaneth stated that the NH was never decreed by a court to be Justin’s
father, and that he was never ordered to contribute to Justin’s support. Yaneth stated
that the NH had admitted orally that he was the parent of the child. She repeated
that the NH helped her financially when he could, but that he did not accompany her
to any doctor appointments, and she did not list him on any medical records because
she was only two months pregnant.
A. Federal Law
To qualify for child’s benefits on the earnings record of an insured individual, an
applicant must be the “child” of the insured individual. See Act § 202(d)(1); 20 C.F.R. § 404.350(a) (2011). “Child” includes the natural child
of an insured individual. See Act § 216(e); 20 C.F.R. § 404.355 (2011). The Act provides that in determining whether
a claimant will be deemed the surviving child of an insured individual, the Commissioner
shall apply such law as would be applied in determining the devolution of intestate
personal property under the laws of the state in which the insured wage earner was
domiciled at the time of his death. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A);
20 C.F.R. §§ 404.355(a)(1), (b)(1) (2011). Because the NH was domiciled in New York
at the time of his death, New York’s intestacy law applies. Section 216(h)(2)(A) is
the only provision of the Act under which the claimant could qualify as the NH’s child.
B. New York Intestacy Law
The right of intestate succession in New York is a statutory creation and there is
no common-law right of inheritance. Irving Trust Co. v. Day, 314 U.S. 556, 562 (1946) (citations omitted); In Re W~’s Estate, 101 N.E. 793, 794 (N.Y. 1913).
The persons who are entitled to share in the estate of a decedent are to be determined
as of the date of the decedent’s death. In re Estate of U~, 818 N.Y.S. 2d 403, 405-06 (N.Y. App. Div. 2006); In re M~’s Will, 185 N.Y.S. 2d 588, 590 (N.Y. App. Div.), order aff’d, 164 N.E.2d 867 (N.Y. 1959). This finding necessarily requires that such persons
be in existence as of the date of the decedent’s death. New York intestacy laws have
carved out a limited exception for those who were conceived before the decedent’s
death but born alive thereafter, and permit them to inherit as though they were born
during the decedent’s lifetime. N.Y. Estates, Powers & Trust Laws (EPTL) § 4-1.1(c)
New York’s intestacy law specifies that the “issue” of a decedent are eligible to
inherit a decedent’s property. EPTL § 4-1.1 (McKinney 2010). The law defines “issue”
as “descendants in any degree from a common ancestor,” which would include a decedent’s
children. EPTL § 1-2.10 (McKinney 2010). Further, the term “issue” includes a “non-marital
child” who has inheritance rights from his alleged father under certain conditions.
EPTL § 4-1.2 (McKinney 2010). This section was recently amended to revise the standard
used for determining inheritance rights of non-marital children. The amendment specifies
that it applies to estates of decedents dying on or after the effective date, April
28, 2010. L.2010 c. 64 § 4.
Because the NH died on June 8, 2001, for purposes of intestate distribution, New York
courts would apply the prior version of the law. However, under 20 C.F.R. § 404.355(b)(4),
the agency applies the state law that exists at the time of the final decision on
the claimant’s application, unless the previous version would be more favorable to
the claimant. Because the previous version is not more favorable to the claimant,
the analysis below applies the amended version of EPTL § 4-1.2(a)(2). See 20 C.F.R. § 404.355(b)(4).  EPTL § 4-1.2(a)(2) holds that a nonmarital child may inherit from his father if any
of the following requirements are met:
A. a court of competent jurisdiction has, during the lifetime of the father, made
an order of filiation declaring paternity or the mother and father of the child have
executed an acknowledgment of paternity pursuant to section four thousand one hundred
thirty-five-b of the public health law, which has been filed with the registrar of
the district in which the birth certificate has been filed or;
B. the father of the child has signed an instrument acknowledging paternity, provided
(i) such instrument is acknowledged or executed or proved in the form required to
entitle a deed to be recorded in the presence of one or more witnesses and acknowledged
by such witness or witnesses, in either case, before a notary public or other officer
authorized to take proof of deeds and
(ii) such instrument is filed within sixty days from the making thereof with the putative
father registry established by the state department of social services pursuant to
section three hundred seventy-two-c of the social services law, as added by chapter
six hundred sixty-five of the laws of nineteen hundred seventy-six and
(iii) the department of social services shall, within seven days of the filing of
the instrument, send written notice by registered mail to the mother and other legal
guardian of such child, notifying them that an acknowledgment of paternity instrument
acknowledged or executed by such father has been duly filed or;
C. paternity has been established by clear and convincing evidence, which may include,
but is not limited to: (i) evidence derived from a genetic marker test; or (ii) evidence
that the father openly and notoriously acknowledged the child as his own, however
nothing in this section regarding genetic marker tests shall be construed to expand
or limit the current application of subdivision four of section forty-two hundred
ten of the public health law.
Justin may not be considered the child of the NH under EPTL §§ 4-1.2(a)(2)(A) and
Under EPTL § 4-1.2(a)(2)(A), there is no court order of filiation declaring the NH
the father of Justin. Nor had Yaneth and the NH executed an acknowledgment of paternity.
And, under EPTL § 4-1.2(a)(2)(B), there is no evidence that the NH executed a statement
acknowledging that he is the father of Justin.
Finally, under EPTL § 4-1.2(a)(2)(C), there is no genetic marker evidence establishing
paternity. But, we believe that there is open and notorious acknowledgment by the
NH that Justin was his son. A finding regarding the “open and notorious” prong of
the New York statute is a factual one. To constitute an “open and notorious” acknowledgment
of paternity, the father’s acknowledgement does not need to be universal. See Thomas o/b/o N.T. v. Astrue, 674 F. Supp 2d 507 (S.D.N.Y. 2009), citing In re Davis, 812 N.Y.S.2d 543, 546 (2d Dep’t 2006). Rather, acknowledgment of paternity in the
community where the child lives is sufficient. Thomas o/b/o N.T. v. Astrue at 5525-26; Matter of Anne R. v. Estate of Francis C., 651 N.Y.S.2d 539 (2d Dep’t 1996). Courts have found that a father’s acknowledgement
of the child as his own to family members and/or friends satisfies the statutory requirement
that he openly and notoriously acknowledge the child as his own.
In Matter of the of Estate T~, 769 N.Y.S.2d 863,865 (Sur. Ct., Madison County, 2003), decedant died about seven
months before the child’s birth. Decedent’s mother, sister, and grandmother testified
that shortly after decedent learned that his girlfriend was pregnant, he acknowledged
to them that he could be the father. Several weeks later, decedent and his girlfriend
made visits to the decedent’s mother’s home and to his girlfriend’s aunt’s home and
announced that they were going to have a baby. The court found that “the decedent
did all that he might reasonably be expected to do to openly and notoriously acknowledge
that he was the father of the child that would ultimately be born to [his girlfriend].”
Id. See also Thomas o/b/o N.T. v. Astrue, 674 F. Supp 2d at 526 (notarized statements from two of decedent’s siblings stating
that he acknowledged the child as his own constituted evidence to support open and
notorious acknowledgment); Seaton v. County of Suffolk, 912 N.Y.S.2d 289(2d Dept. 2010)(affidavit from decedent’s friend stating that decedent
had, shortly before his death, advised him that the child’s mother was pregnant with
his child, was sufficient to establish open and notorious acknowledgment); Matter of P~, 851 N.Y.S.2d 254, 264-65 (2d Dept 2008) (evidence, which included affidavits of
several acquaintances of the decedant attesting that decedent openly acknowledged
paternity, provided evidence that he openly and notoriously acknowledged paternity);
In re Estate of F~, 803 N.Y.S.2d 380, 384 (Sur. Ct., Bronx County, 2005)(decedent’s acknowledgment of
the children as his own to both the petitioner’s mother and sister, and to his own
mother and sister constituted open and notorious acknowledgment); In re Estate of K~, 793 N.Y.S.3d 710 (Sur. Ct., Rockland County, 2004) (decedent’s acknowledgment of
his paternity to the child’s mother, his mother, and his brother constituted open
and notorious acknowledgment); and Tumminia v. Savattere, 654 N.Y.S.2d 676 (2d Dep’t 1997) (affidavits from friends and relatives established
that decedent had openly and notoriously acknowledged paternity). Cf. In the Matter of D~, 812 N.Y.S.2d 543, 546 (2d Dep’t 2006) (affidavit of decedent’s friend describing
a “private” conversation, in which decedent acknowledged paternity, was not evidence
of open and notorious acknowledgment); and Matter of G~, 2002 WL 377024 (Sur. Ct., N.Y. County, 2002) (putative father’s acknowledgment of
paternity in confidence to child’s mother and one friend did not constitute open and
Based on the caselaw described above, a New York court would likely find that the
notarized statements from the NH’s mother and two siblings constituted an open and
notorious acknowledgment of paternity. Additionally, the Report of Contact prepared
by an SSA employee, K. , notes that the NH’s mother was present at the interview with
Yaneth and confirmed that the NH told family members that Yaneth was pregnant with
his child. Accordingly, we believe that Justin can establish that he is the child
of the NH under EPTL 4-1.2(a)(2)(C).
A New York court would likely find that the NH openly and notoriously acknowledged
that he is the father of Justin, and therefore, he could inherit the NH’s personal
property as his child under New York’s intestacy law. Therefore, it is our opinion
that Justin is entitled to survivor benefits on the NH’s account.
Mary Ann Sloan
Acting Regional Chief Counsel
Assistant Regional Counsel