TN 27 (01-13)

PR 01005.035 New York

A. PR 13-017 Gianna ; Posthumously-Born Child Seeking Survivor’s Benefits; New York

DATE: November 26, 2012

1. SYLLABUS:

Under New York intestacy law the following evidence may be used to establish the claimant is the number holders child.

  1. The DNA test establishing an 83.3% probability that the claimant is related to the NH’s mother could be used to meet the clear and convincing standard imposed by the law.

  2. The claimant’s mother’s statement, as well as those of relatives and friends, contains evidence that the NH fathered a previous child with the mother, corroborating her claim of a longstanding intimate relationship.

Based on the facts in this case it is the Chief Counsel’s opinion that the claimant is entitled to survivor’s benefits on the NH’s account because, under New York’s intestacy laws, the claimant could inherit the NH’s personal property as his child.

2. OPINION

QUESTION PRESENTED

Whether Gianna (the claimant), who was born after the death of number holder Gerald (the NH), is entitled to survivor’s benefits as the child of the NH.

OPINION

It is our opinion that the claimant is entitled to survivor’s benefits on the NH’s account because, under the intestacy laws of the State of New York, the claimant could inherit the NH’s personal property as his non-marital child.

BACKGROUND

The claimant was born in Richmond County, New York, at Staten Island University Hospital on September 2011. The Certificate of Birth, as issued at the time of the claimant’s birth, did not record a father’s name.1

The claimant’s alleged father, the NH, died unexpectedly on January 15, 2011, eight months prior to the claimant’s birth. At the time of the NH’s death, both the claimant’s mother, Deborah, and the NH were unaware that Deborah was pregnant with the claimant. Deborah and the NH were not married at any time.

The NH’s obituary, published by local newspaper the Staten Island Advance, reported that the NH lived in the Dongan Hills section of Staten Island, New York, at the time of his death. Deborah similarly reported in a sworn statement to the Social Security Administration (the agency) that the NH lived three blocks from her apartment, which she said was located in Staten Island. There is no evidence that the NH was domiciled outside of New York at the time of his death.

Deborah filed a petition for a posthumous order of filiation with the Family Court for the State of New York in Richmond County on March 29, 2012. On May 7, 2012, Family Court Support Magistrate Gregory granted Deborah’s petition, adjudging and declaring that the NH was the father of the claimant.

In support of this holding, Magistrate cited to several pieces of evidence submitted in support of the petition. These included a DNA test establishing an 83.3% likelihood that the claimant is related to Nancy, the mother of the NH, and the credible testimony of Deborah, who stated that the NH had exclusive sexual access to her, and that the claimant was conceived as a result.

Deborah filed an application for survivor’s benefits on behalf of the claimant on May 9, 2012.

In support of this application, Deborah supplied the agency with several pieces of documentary evidence. These included the above-mentioned DNA test and an amended birth certificate that listed the NH as the claimant’s father. Deborah also submitted eight signed statements from relatives and friends of the NH and Deborah, as well as a letter from Deborah herself, attesting that the NH and Deborah were engaged in a long-term, intimate relationship, that the NH had fathered a previous child with Deborah, and that the NH was the claimant’s father.

ANALYSIS

The Social Security Act (the Act) requires that a person be the dependent “child” of an insured individual to qualify for benefits as a surviving child. See section 202(d)(1) of the Act; 42 U.S.C. § 402(d)(1). Section 216(h) of the Act provides the analytical framework that the agency must follow to determine whether an individual is the “child” of an insured individual. Under section 216(h), a child may be entitled to survivor’s benefits on the earnings record of a deceased insured individual if the child could inherit the insured individual’s personal property as his natural child under the intestacy laws of the state in which the insured individual was domiciled at the time of his death. See section 216(h)(2)(A) of the Act; 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). A child who meets the standard that Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). As the NH was domiciled in New York State at the time of his death, the intestacy laws of New York are controlling in this matter.

New York intestacy law allows for a non-marital child to be considered the legitimate child of a father such that the child may inherit from the father, provided one of three sets of conditions is satisfied. N.Y. Est. Powers & Trusts § 4-1.2 (McKinney 2012). A child may inherit (A) if “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,” or (B) if “the father of the child has signed an instrument acknowledging paternity.” N.Y. Est. Powers & Trusts § 4-1.2(a)(2)(A)-(B). In this case, there was no order of filiation “during the lifetime of the father,” and no formal acknowledgement of paternity. However, a child may also inherit under a third prong of the law if “paternity has been established by clear and convincing evidence, which may include, but is not limited to…evidence derived from a genetic marker test.” N.Y. Estate Powers & Trusts § 4-¬1.2(a)(2)(C).2 As the first two subsections of the law are inapplicable, the third subsection must be satisfied if the claimant is to establish her entitlement to survivor’s benefits.

In matters of paternity, the clear and convincing standard requires “evidence which is entirely satisfactory and creates a genuine belief that the [alleged father] is the father of the child.” Matter of Anne R. v. Estate of Francis C., 234 A.D. 2d 375 (N.Y. App. Div. 1996) (quoting Matter of Comm’r of Soc. Services [Patricia A.] v. Philip De G., 59 N.Y. 2d 137, 141-142 (N.Y. 1983)) (internal quotations omitted). Paternity is commonly established by reliance on genetic marker tests. Such tests usually involve a comparison of the child’s DNA with the DNA of the alleged father. This case involves a comparison between the child’s DNA and that of the NH’s mother. However, New York has “no prohibition against establishing paternity by the DNA testing of the putative paternal grandparents in an effort to provide the clear and convincing evidence that is required to establish paternity under” section 4-1.2(a)(2)(C). In re N~, 748 N.Y.S. 2d 654 (N.Y. Surr. Ct. Sept. 16, 2002) (citing Matter of Sandler, 612 N.Y.S.2d 756 (N.Y. Surr. Ct. April 26, 1994)). Courts have also noted that “nowhere is there a requirement that blood testing [be] 100% accurate” to establish paternity. King v. Tanner, 545 N.Y.S. 2d 649, 651 (N.Y. Sup. 1989). Furthermore, paternity may be established where DNA testing reveals a less than 90% probability of paternity. See, e.g., Reidy on Behalf of Charlotte P v. Jeffrey K, 125 A.D.2d 825(N.Y. App. Div. 1986) (upholding a finding of paternity based upon DNA testing reflecting an 85.4% probability, as well as the mother’s testimony that she had engaged in sexual intercourse exclusively with the putative father).

In light of these understandings, the DNA test establishing an 83.3% probability that the claimant is related to the NH’s mother could be used to meet the clear and convincing standard imposed by § 4-1.2(a)(2)(C).3 See also Palmer v. Carter, 543 N.Y.S. 2d 625, 625-626 (N.Y. Fam. Ct. 1989) (“Although paternity must be supported by more than a mere preponderance, the evidence need not be sufficient to overcome any reasonable doubt”) (citing Hanley v. Wilcox, 57 A.D. 2d 697 (N.Y. App. Div.1977).

This case also involves additional evidence that favors a finding of paternity. Deborah’s statement, as well as those of relatives and friends, contains evidence that the NH fathered a previous child with Deborah, corroborating her claim of a longstanding intimate relationship. The NH’s mother, brother, and several other friends and family members all similarly stated that Deborah and the NH were in a committed relationship at the approximate time of the claimant’s conception. Deborah’s uncontroverted statement that the NH had exclusive sexual access to her, and that the claimant was conceived as a result also favors a finding of paternity. See Matter of Dep’t of Soc. Services of Suffolk County [Debra L.] v. William J., 191 A.D. 2d 558 (N.Y. App. Div. 1993); see also R~, 125 A.D. 2d 825.

Moreover, this is all in addition to the fact that a New York Court has already held that the NH is the claimant’s father, after expressly considering both the DNA test and Deborah’s “credible testimony.” While the Family Court decision is not dispositive in this matter, it strongly supports a finding that the claimant has satisfied the requirements of section 4-1.2(a)(2)(C), because section 4-1.2(a)(2)(C) and filiation proceedings apply the same standard of proof. See Lyssa G. v. Anthony H., 240 A.D. 2d 744, 744 (N.Y. App. Div. 1997) (noting that, in filiation proceedings, it “is well settled that paternity must be established by clear and convincing evidence”) (citing Matter of Jane PP. v. Paul QQ., 64 N.Y. 2d 15 (N.Y. 1984); Patricia A., 59 N.Y. 2d 137)).

CONCLUSION

It is our opinion that the claimant is entitled to survivor’s benefits on the NH’s account because, under New York’s intestacy laws, she could inherit the NH’s personal property as his child.

Stephen P. Conte
Acting Regional Chief Counsel

By: _________
Fergus Kaiser
Assistant Regional Counsel

B. PR 12–088 Justin – Posthumously-Born Child – Relationship between Child Applying for Survivor Benefits and Number Holder Lemitre (deceased)

DATE: April 11, 2012

1. SYLLABUS:

Based on the facts in this case a New York court would likely find that the NH openly and notoriously acknowledged that he is the father of the claimant, and therefore, he could inherit the NH’s personal property as his child under New York’s intestacy law. The NH died on June 8, 2001. Prior to his death the NH acknowledged the child by telling his mother and siblings who signed statements to that effect. Therefore, it is the Chief Counsel’s opinion that the claimant is entitled to survivor benefits on the NH’s account.

2. OPINION

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.

QUESTION PRESENTED

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).

OPINION

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.

BACKGROUND

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. 4

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.

ANALYSIS

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.5 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. 6

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) (McKinney 2010).

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). 7 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 that

(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 (B).

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 notorious acknowledgment).

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).

CONCLUSION

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

By: _________
Susan Reiss
Assistant Regional Counsel


Footnotes:

[1]

The certificate was eventually amended following a filiation proceeding (discussed below) to name the NH as the claimant’s father.

[2]

This portion of the law was amended in 2010, and applies when (as in this case) the decedent died on or after April 28, 2010. See 2010 N.Y. Sess. Laws Ch. 64.

[3]

The DNA test only links the claimant to the NH’s grandmother, and not directly to the NH. Furthermore, the NH’s obituary states that the NH has a brother. However, at no time has any person raised the possibility that the NH’s brother may be the claimant’s father, and the record is devoid of any evidence that even hints at such a possibility.

[4]

Yaneth’s maiden name was B~.

[5]

The child must also (1) apply for child’s insurance benefits; (2) at the time such application is filed be unmarried and either be under age 18 or be under age 19 and a full-time elementary or secondary school student, or over 18 and under a disability which began before he attained the age of 22; and (3) be dependent on the NH. Act § 202(d)(1); 20 C.F.R. § 404.350.

[6]

Third, a child may be deemed the child of an insured person if “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.” Act § 216(h)(3)(C)(ii); 42 U.S.C. § 416(h)(3)(C)(ii). Here, while there is evidence establishing that the NH was the father, the NH was not living with or contributing to the support of Justin at the time the NH died.

[7]

Under the prior version of EPTL 4-1.2(a)(2)(C), paternity is established by “clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own.” Thus, both prongs of this provision had to be met. In contrast, the revised version sets forth a disjunctive test and requires only that one of two prongs be met to show paternity. See Memorandum in Support of Legislation, New York State Assembly, (Assemb. B. A7899, 233rd Leg. (N.Y. 2010); see also 2010 Sess. Law News of N.Y. Ch. 64 (A7899-A), §2 (McKinney). The revised version provides that paternity may be established by &