You requested a legal opinion regarding whether the presumption of legitimacy provided
to a child born during a marriage can be rebutted by deoxyribonucleic acid (DNA) testing
showing a 99.99999 percent probability that the child’s father is someone other than
the marital father. Based upon the evidence presented and for the reasons discussed
below, we believe that the presumption can be, and indeed already has been, rebutted
through DNA testing and the divorce decree in place.
The materials that you provided indicate that the numberholder, Harry W. H~ (Mr. H~),
was entitled to disability benefits beginning in October 2005. Mr. H~ thereafter married
Angeline M. H~ (Ms. H~) on August 14, 2006, and on August 16, 2006, Avah M. H~ (Avah)
was born. Avah was enumerated at birth, and Mr. H~ was listed as the father name on
the birth certificate.
Benefits were thereafter awarded to Ms. H~ and Avah beginning in May 2007. All parties
were domiciled in Iowa when Ms. H~ and Avah applied for benefits.
After receiving advance notice of Avah’s entitlement, Mr. H~’s son, Harrison W. H~
(Harrison), submitted a request for reconsideration on July 9, 2008, alleging that
Avah was not Mr. H~’s child and providing the following evidence:
1. A report from DNA testing conducted on March 5, 2008, indicating that someone other
than Mr. H~ is the father of Avah, with a combined paternity index of 14,816,616 and
a probability of paternity of 99.99999 percent; and
2. A May 7, 2008 divorce decree terminating the marriage of Mr. and Ms. H~. The order
disestablished Mr. H~’s paternity of Avah, apparently on the basis of the DNA testing.
You have reopened the determination under the rules of administrative finality because
the DNA testing report and the divorce decree constitute new and material evidence
presented within four years of the initial determination that Ms. H~ and Avah should
be entitled to benefits on Mr. H~’s record, and because Harrison has questioned that
determination in writing.
Under the Social Security Act, the child of an insured individual entitled to old-age
or disability benefits is entitled to child’s insurance benefits when, as relevant
here, she has filed for benefits, is under age 18, and was dependent on the disabled
individual at the time of the application. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2009). To qualify as the child of an
insured individual, the child must be the natural child, legally adopted child, stepchild,
grandchild or stepgrandchild, or equitably adopted child of the insured individual.
See 20 C.F.R. §§ 404.350(a) and 404.355-404.359.
There is no evidence to suggest that Avah is a legally adopted child, stepchild, grandchild
or stepgrandchild, or equitably adopted child of Mr. H~. Thus, the only consideration
relevant to this inquiry is whether Avah qualifies as Mr. H~’s natural child, despite
the existence of the above-referenced DNA testing and the divorce decree.
To determine entitlement to benefits as an insured individual’s natural child, the
Agency applies the law that would determine devolution of intestate personal property
by the courts of the state where the insured individual was domiciled at the time
the claimant filed an application, or the state in which the insured individual was
domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A). If, under state intestacy law, the claimant could take a
share of personal property as the insured individual’s child, she is considered the
insured individual’s child for Social Security benefit purposes. See id.; 20 C.F.R. § 404.355. 
Mr. H~ was a resident of Iowa at the time that Avah filed her application for benefits.
Therefore, Iowa’s intestacy law is applicable in this case.
Under Iowa law, all surviving issue of an intestate decedent may share in an intestate
estate. See Iowa Code § 633.219. The term “issue” is defined as “all lawful lineal descendants
of a person, whether biological or adopted, except those who are the lineal descendants
of the person’s living descendants.” Iowa Code § 633.3(24). The term “biological”
is not defined in the statute; neither is the term “lawful lineal descendant.”
Here, an Iowa court has affirmatively declared, through a divorce decree, that Mr.
H~ is not the father of Avah, apparently on the basis of the DNA test.  Social Security Ruling 83-37c, which adopted the ruling in Gray v. Richardson, 474 F.3d 1370 (6th Cir. 1973), provides that the Agency must defer to a determination
by a state court where (1) an issue in a claim for benefits has been previously determined
by a state court of competent jurisdiction; (2) the 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.
Mr. H~’s divorce decree appears to meet the requirements of (1), (3), and (4), but
it is unclear whether the issue was genuinely contested such that the Agency is required
to accept the state court determination. Therefore, the Agency should make a paternity
determination using the standard of proof that the state court would use. See 20 C.F.R. § 404.355(b)(2).
There is a presumption of paternity when a child is born in a marriage in Iowa. See In re Marriage of Bethards, 526 N.W.2d 871, 873 (Iowa 1994) (noting that such presumptions “have historically
been very strong”) (citing Kuhns v. Olson, 141 N.W.2d 925, 926 (Iowa 1996)). However, that presumption is rebuttable. See Iowa Code § 600B.41A(1) (“[T]his section applies to the overcoming of paternity which
has been established . . . by operation of law when the established father and the
mother of the child are or were married to each other.”); Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996) (noting that section 600B.41A permits a father whose
paternity has been established by marriage “to overcome that legal presumption when
genetic testing indicates he is not the biological father”).
Iowa statutes provide for the establishment or disestablishment of paternity as a
result of, inter alia, genetic testing. First, Iowa law provides for the affirmative
establishment of paternity, either administratively or by private action. See generally Iowa Code ch. 252F (administrative establishment) and 600B (private right of action).
Where blood or genetic testing determines a probability of 95 percent or greater that
a man alleged to be the father is, in fact, the father of the child at issue, “there
shall be a rebuttable presumption that the putative father is the biological father,
and the evidence shall be sufficient as a basis for administrative establishment of
paternity.” Iowa Code § 252F.3(6)(i). See also Iowa Code § 600B.41(5)(b). That presumption of paternity may be rebutted by clear
and convincing evidence. See Iowa Code §§ 252F.3(6)(i)(4) and 600B.41(5)(b)(3). Evidence is clear and convincing
when it “leaves ‘no serious or substantial doubt about the correctness of the conclusion
drawn from it.’” In re D.D., 653 N.W.2d 359, 361 (Iowa 2002) (quoting Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct. App. 1983).
Similarly, a legally established paternity may be overcome if subsequent blood or
genetic testing indicates that the previously established father of the child is not
the biological father of the child. See Iowa Code § 600B.41A. The process requires that blood or genetic testing be conducted
as set forth in chapters 252F and 600B and further states that section 600B.41 applies
to those tests. See Iowa Code § 600B.41A(3)(e). As a result, the 95 percent baseline set forth in section
600B.41(5)(b) applies to tests seeking to disprove paternity as well. Under section
600B.41A, where genetic testing conducted pursuant to section 600B.41 establishes
that the established father is not the biological father of the child and where certain
other conditions are met, the court must relieve the established father of all future
support obligations. See Iowa Code § 600B.41A(4).
In this case, we believe the divorce decree and DNA test results effectively rebut
the presumption that Mr. H~ is Avah’s father by clear and convincing evidence. This
rebuttal of Mr. H~’s legally established paternity is consistent with Iowa Code §
600B.41A, as set forth above, and disestablishes any legal paternal relationship between
Mr. H~ and Avah. We therefore believe that Avah is not a “lawful lineal descendant”
of Mr. H~ for purposes of Iowa intestacy law and, as a result, does not qualify as
the child of the insured numberholder, Mr. H~, in this case. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355.
In addition, because Avah is not Mr. H~’s child, Ms. H~ did not have a child of the
numberholder in her care at any time relevant hereto. Therefore, she was ineligible
for mother’s benefits. See 20 C.F.R. § 404.341.
Kristi A. S~
Chief Counsel, Region VII
Matthew C. M~
Assistant Regional Counsel