Jordan G~ was awarded child's benefits, effective June 2006, on the record of Jeffrey
G~. Mr. G~ was presumed to be Jordan's father because Mr. G~ was married to Jordan's
mother at the time of Jordan's birth. However, DNA tests now show a 99.9509% chance
that Paul F~ is Jordan's biological father. And, even more recently, Jordan's mother
and Mr. G~ were granted a divorce, and the court found, in its order granting the
divorce, that Mr. G~ is not Jordan's father.
An application has now been filed for child's benefits on Mr. F~ record, as well.
You asked whether the DNA test is sufficient to rebut the presumption that Jordan
is Mr. G~'s child, or whether SSA should continue to pay Jordan child's benefits on
Mr. G~'s record, based on the presumption of legitimacy. We conclude that a Minnesota
court would most likely rule, based on the DNA test results and other evidence in
the record, that Jordan cannot inherit from Mr. G~ as his child. Therefore, the DNA
test results provide a basis for reopening and revising the award of benefits on Mr.
G~'s account. Furthermore, we believe that a Minnesota court would now likely find
that Jordan is Mr. F~ child and that this finding would relate back to Jordan's birth,
so that Jordan would be entitled to benefits on Mr. F~ account even before the DNA
test results were obtained.
Jordan's mother married Mr. G~ in 1984. Jordan was born during the marriage in 1997.
Mr. G~ is listed as Jordan's father on Jordan's birth certificate and on Jordan's
SS-5. Jordan was awarded child's benefits on Mr. G~'s record effective June 2006,
based on an application filed that month.
In February 2007, DNA testing showed a 99.95% probability that Mr. F~ is Jordan's
biological father. Jordan's mother has stated that she and Mr. G~ were separated at
the time of Jordan's conception, and that she developed a relationship with Mr. F~
In October 2008, a court issued an order granting Jordan's mother and Mr. G~ a divorce.
In the divorce order, the court found that Jordan was born during the marriage, but
that Mr. G~ did not have sexual intercourse with Jordan's mother during the possible
time of conception and that Jordan's mother did have sexual intercourse during that
time with the person (presumably Mr. F~) who was determined, by blood tests, to have
a probability of parentage of 99.95 %. The court found that "for these reasons and
by the agreement of the parties" Mr. G~ "is not the biological father" of Jordan.
The court ordered that Jordan's mother and Mr. G~ had joint custody of another child
born during the marriage, who the court found is Mr. G~'s child. The court further
ruled that, although Jordan "is not the child of" Mr. G~, the parties agreed that
Jordan should accompany "his half-sister" when she is in Mr. G~'s custody.
You indicated that Jordan's mother plans to request that Jordan's birth certificate
be amended. You informed us that Mr. F~ has asked to be named on the birth certificate
and wants to rename Jordan's middle name (presumably using his own last name). However,
you indicated that Jordan's mother was advised to complete the divorce proceedings
before adjudicating the paternity issue in court. It appears that no separate paternity
action has yet been filed.
You informed us that Jordan has bonded with both Mr. G~ and Mr. F~ and apparently
considers Mr. G~ to be his "dad" and Mr. F~ to be his "father." You previously advised
that Jordan was living part-time with his mother and part-time with Mr. G~ (which
appears consistent with the divorce order), and that Jordan also sees Mr. F~ twice
a week. Jordan does not have a relationship with Mr. F~ family, but he has a relationship
with Mr. G~'s mother and sister.
Everyone involved is domiciled in Minnesota.
Under section 216(h)(2) of the Social Security Act, a child is entitled to benefits
on the earnings record of an insured individual if the child could inherit the insured's
property as his or her natural child under the intestacy laws of the state in which
the insured was domiciled at the time of the application. 42 U.S.C. § 416(h)(2); see also 20 C.F.R. § 404.355(a)(1). If state inheritance law requires a court determination
of paternity, the Agency does not require the claimant to obtain a court determination,
but decides paternity using the standard of proof that the state court would use as
the basis for a determination of paternity. See 20 C.F.R. § 404.355. If a child would not qualify as a child of the insured under
the State law in effect at the time the child's application was filed, the Agency
must look at all versions of State law that were in effect from the first month for
which the child could be entitled to benefits up until the time of the final decision
and apply the version of State law that is most beneficial to the child claimant.
20 C.F.R. § 404.355(b)(3). Here, we must determine whether Jordan still could inherit
from Mr. G~, as well as whether Jordan could now inherit from Mr. F~
To inherit from Mr. G~ as his child, Jordan would need to rely on the Parentage Act's
presumption of paternity based on Mr. G~'s marriage to his mother at the time of his
birth. See MINN. STAT. ANN. § 257.55(1)(a). However, we believe that a Minnesota court would
likely find that Mr. F~, rather than Mr. G~, is Jordan's father under the Parentage
Act, based on the new evidence now available.
We note first that the divorce decree would not be decisive in such a case. A court
determination of non-paternity is usually binding for all purposes. See MINN. STAT. ANN. § 257.66(1). However, the Minnesota Supreme Court has held that,
if the child is not a party to a paternity action, the child is not bound by the decision
in that case and can bring a separate action to establish paternity. See Johnson v. Hunter, 447 N.W.2d 871, 874, 876 (Minn. 1989). Here, it does not appear that Jordan was
a party to the divorce proceeding. Nor was he represented in that action. Therefore,
Jordan would not be bound by any finding in the court's order and could attempt to
inherit from Mr. G~ under the Parentage Act based on the presumption of paternity.
Nevertheless, it appears that, even if the court were to consider the issues anew,
the court would still likely find that Mr. F~, rather than Mr. G~, is Jordan's father.
The Minnesota Supreme Court has recently held that, in an inheritance action:
When a party benefits from a Parentage Act presumption of paternity and relies on
that presumption to establish paternity in a probate proceeding, the party has chosen
to establish paternity under the Parentage Act, as expressly authorized by the Probate
Code. See Minn. Stat. § 524.2-114. In such a situation, the provisions of the Parentage Act
must apply in their entirety.
Estate of Jotham, 722 N.W. 2d 447, 452 (Minn. 2006). The Court further held that a court can entertain
an effort to rebut a presumption of paternity in an inheritance proceeding only if
"the party seeking to rebut a paternity presumption would not be barred by the standing
or timeliness requirements in [MINN. STAT. ANN. §] 257.57 from bringing an action
to declare the nonexistence of the presumed father-child relationship." Estate of Jotham, 722 N.W. 2d at 455. The time for bringing an action to establish Mr. G~'s non-paternity
lapsed, at the latest, in 2001 (three years after Jordan's birth). See MINN. STAT. ANN. § 257.57(1)(b) (presumption of paternity based on marriage to mother
of child lapses three years after the child is born). After that time, no one could
bring an action to establish that Mr. G~ is or was not Jordan's father. While SSA
ignores time limits placed on claimants for establishing paternity, 20 C.F.R. § 404.355(b);
POMS GN 00306.075(B)(3), we have confirmed with the Office of Income Security Programs that SSA does
not ignore state law time limits for establishing non-paternity. Therefore, the court
would not consider an allegation that Mr. G~ is not Jordan's father.
However, while an action to establish non-paternity is time-barred, an action to establish
paternity based on DNA evidence can be brought at any time by the child, the child's
mother, or the man alleging himself to be the father based on the presumption arising
from the DNA test results. WIS. STAT. ANN. § 257.57(2)(1). Therefore, Jordan, Jordan's
mother, or Mr. F~ could, in theory, bring an action at any time to assert that Mr.
F~ is Jordan's real father (which effectively would also establish that Mr. G~ is
not the father). Although we did not find any cases directly on point, it appears
that any one of these individuals could potentially assert, in the inheritance proceeding
for Mr. G~, that Mr. F~ is Jordan's real father. In this way, the inheritance court
would be able to consider that someone other than Mr. G~ is Jordan's father under
the Parentage Act. See Dorman v. Steffen, 666 N.W.2d 409, 411-12 (Minn. App. 2003) (actions to establish paternity may be
brought at any time, even though the effect is to declare the non-paternity of a presumed
father and the action is brought past the time to bring an action to establish non-paternity
of a presumed father).
We assume that Jordan would not assert that Mr. F~ is his real father if he were attempting
to inherit from Mr. G~ as his son. However, if Jordan were attempting to inherit from
Mr. G~ as his son under the Parentage Act, then, according to the Jotham decision, all provisions of the Parentage Act would apply to the case. Estate of Jotham, 722 N.W. 2d at 452. Under the Parentage Act, Jordan's mother would be made a party
to the action, if still living and subject to the jurisdiction of the court where
the inheritance proceeding would be held (which she would be at least at this point
in time). See WIS. STAT. ANN. § 257.60. Although we did not find any cases on this specific issue,
we assume that, under the holding in the Jotham decision and under the plain language of the Parentage Act, Jordan's mother would
be made a party to the inheritance proceeding on Mr. G~'s estate, not as a potential
heir, but as a necessary party under the Parentage Act, since Jordan would be proceeding
under that Act to establish paternity.
Once Jordan's mother were made a party to the action she would, presumably, assert
that Mr. F~, and not Mr. G~, is Jordan's father, since to take any other position
would be inconsistent with her position in the divorce proceeding against Mr. G~.
In fact, she may now be estopped from taking any other position. See Markert v. Behm, 394 N.W.2d 239, 241-42 (Min. App. 1986) (ex-wife precluded by collateral and equitable
estoppel, as well as res judicata, from challenging ex-husband's paternity where she
was party to prior divorce action finding him to be the child's father). At that point,
Mr. F~ would also be made a party to the action. See MINN. STAT. ANN. § 257.60 (any
man alleged to be the biological father shall be made a party to the action if subject
to the court's jurisdiction). If SSA credits the information provided to us, it appears
that Mr. F~ would not contest the allegation that he is Jordan's father.
Since Jordan's mother would be asserting that Mr. F~, rather than Mr. G~, is Jordan's
father, and since it appears from the information you provided that Mr. F~ would also
try to establish that he is Jordan's father, the court would be faced with competing
presumptions of paternity: (1) the presumption, under MINN. STAT. ANN. § 257.62(5)(b),
that Mr. F~ is Jordan's father, based on the DNA test results; and (2) the presumption
under MINN. STAT. ANN. § 257.55(a)(1), that Mr. G~ is Jordan's father because Mr.
G~ was married to Jordan's mother at the time of Jordan's birth.
Under the Parentage Act, "[i]f two or more presumptions arise which conflict with
each other, the presumption which on the facts is founded on the weightier considerations
of policy and logic controls." MINN. STAT. ANN. § 257.55(2). Under Minnesota law,
none of the presumptions is necessarily weightier or controlling. See Witso v. Overby, 609 N.W.2d 618, 620-21 (Minn. App. 2000), aff'd 627 N.W.2d 63 (Minn. 2001), cert.
denied 534 U.S. 1130 (2002). However, the case law is instructive as to which factors
courts consider most important in determining which presumption should control in
In In re C.M.G., 516 N.W.2d 555 (Minn. App. 1994), the court found that, on the particular facts
of that case, the presumption of paternity based on a declaration of parentage was
weightier than the presumption of paternity based on blood/DNA testing. In that case,
the man who had executed the declaration of parentage wanted to be the father and
was willing and able to support the child; the child viewed that man as his father
and had bonded with him, as well as the man's parents; and the man presumed to be
the father based on blood/DNA test results did not want to develop a paternal relationship
with the child. Id. at 561.
In Paternity of BJH v. MTH, 573 N.W.2d 99 (Minn. App. 1998), both the man who was married to the child's mother
and the man who was the biological father, according to blood tests, petitioned to
be the child's father. The court ruled in favor of the biological father. The court
listed several reasons for its decision, including the fact that the man was the biological
father; he wanted a relationship with the child; he introduced the child as his own;
there were doubts about the continued stability of the marriage between the mother
and the other man; the child would eventually want to know his biological father;
and the child was young enough to establish a relationship with the biological father,
even though he had spent the majority of his life to that point with the other man.
Id. at 103.
In State v. Thomas, 584 N.W.2d 421 (Minn. App. 1998), neither the man presumed to be the father based
on blood tests nor the man presumed to be the father based on marriage wanted to be
named as the father of the child at issue. In that case, the court also found that
the biological father should be adjudicated to be the father, since he could not avoid
his obligation to support his child by arguing that another man would be a better
parent. The court also noted that there is a policy of not impairing blood relationships
and that the marriage between the mother and the man presumed to be the father based
on marriage had ended. Id. at 425.
It is not entirely clear how a court would weigh the factors in this case. Jordan
has developed a relationship with both men and considers one to be his "dad" and the
other to be his "father." Some factors weigh in favor of finding that Mr. G~ should
be named the father, since Jordan lives part-time with Mr. G~, whereas he sees Mr.
F~ twice a week but does not live with him; and Jordan has a relationship Mr. G~'s
mother and sister, but does not have a relationship with Mr. F~ family. However, the
court seems to weigh the biological relationship very heavily, and seems to find that
the biological father should be named as father unless the biological father does
not want to be the child's father and another man who is presumed to be the father
is willing and able to be the child's father and has developed a relationship with
the child. See In re C.M.G., 516 N.W.2d 555; Paternity of BJH, 573 N.W.2d 99; Thomas, 584 N.W.2d 421. Here, if you credit the evidence in the record, it appears that
Mr. F~ would like to be named as Jordan's father. Furthermore, it appears that Mr.
G~ does not want to be considered Jordan's father, since he has agreed to a court
order finding that he is not Jordan's father. Based on these facts, we believe that
a Minnesota court would likely find Mr. F~ should be named Jordan's father under the
Thus, it is likely that, in an inheritance proceeding on Mr. G~'s estate, the probate
court would consider the competing presumptions of paternity and find that Mr. F~,
rather than Mr. G~, is Jordan's father. Under Minnesota law, a determination of the
existence or nonexistence of the parent and child relationship under the Parentage
Act is determinative for all purposes, and the court must order a new birth record
be issued consistent with the determination. MINN. STAT. ANN. § 257.66(1)-(2) (West
2007). Thus, any determination under the Parentage Act that Mr. F~ is Jordan's father
would "legitimate" Jordan and relate back to his birth. For these reasons, the DNA
test results would provide a basis for reopening the award of benefits on Mr. G~'s
account and denying that claim for benefits. See 20 C.F.R. §§ 404.988(b), 989(a)(1) (determination can be reopened within four years
based on new and material evidence); POMS GN 04010.030.
By the same token, if Jordan attempted to inherit from Mr. F~ as his son, the court
would likely conclude that the DNA evidence, together with other evidence of record,
is sufficient to find that Jordan is Mr. F~ child under the Parentage Act. Since that
finding would relate back to Jordan's birth, he would be entitled to benefits on Mr.
F~ record even before the DNA tests were performed. See POMS GN 00306.050 (child legitimated after birth is considered legitimate from birth). Accordingly,
it would be reasonable to reopen the award of benefits on Mr. G~'s account, based
on the DNA evidence and the other new evidence, and find that Mr. F~, rather than
Mr. G~, is Jordan's father.
In sum, we conclude that a Minnesota court would likely rule that Jordan cannot inherit
from Mr. G~ as his child, based on the new DNA and other evidence provided. The new
evidence, therefore, provides a sufficient basis to reopen and revise the award of
benefits on Mr. G~'s account. We further conclude that a Minnesota court would likely
find that Jordan should be considered Mr. F~ child, for purposes of inheritance, and
for all purposes, relating back to his birth. Therefore, Jordan would be eligible
for benefits on Mr. F~ account as his child even before the DNA test results were
Donna L. C~
Regional Chief Counsel, Region V
Assistant Regional Counsel