You asked several questions concerning whether D~ (C1) and B~, (C2) may be entitled
to child's insurance benefits on the record of the deceased number holder, B~, (NH),
on the basis of DNA testing of NH's father, L~, and NH's sister, M~. Specifically,
Is DNA evidence submitted from the father and sibling of NH sufficient to rebut the
presumption of paternity that D~ is C1 and C2's father and to establish the children's
relationship to NH under Mississippi intestacy law?
If the children meet the requirements of an illegitimate child with inheritance rights
of NH, can the children be paid retroactively or prospectively from the date of the
If the children can be paid retroactively, should the previous denials be reopened
In April 2006, we spoke with Betty C~ to clarify the questions asked, and agreed that
the questions should address both the sufficiency of DNA testing when establishing
a probability of paternity under Mississippi law and whether DNA testing is sufficient
to rebut the presumption that D~ is the children's legitimate father. We also agreed
that the opinion should address the accreditation requirements for genetic testing
laboratories under Mississippi law. Thus, the questions to be answered are:
Can C1 and C2 be entitled to child's insurance benefits on NH's record on the basis
of DNA testing of NH's father and sister?
Is this DNA testing sufficient to rebut the presumption that D~ is the children's
If the children are entitled to benefits on NH's record, can the children be paid
retroactively or would their benefits be prospective from the date of the DNA testing?
If the children could be paid retroactively, should the Agency reopen the children's
What are the accreditation requirements for genetic testing laboratories under Mississippi
The DNA testing on NH's father and sibling that shows a 99.71% probability that NH
is the father of the children in this case may create a presumption of paternity under
the Mississippi paternity statute, but such evidence alone would not establish that
C1 and C2 are NH's children for entitlement purposes.
The DNA testing in this case alone cannot rebut the presumption that D~ is both children's
father. Thus, when taking into account all of the evidence before the Agency, including
the DNA testing, a Mississippi court would find C1 and C2 to be the children of D~.
Thus, an Agency adjudicator could not conclude that C1 and C2 are NH's children for
C1 and C2 are not entitled to benefits on NH's record, and thus, retroactive payment
is not at issue.The children's prior applications should not be reopened, because
they are not entitled to benefits on NH's record;
however, only C2's prior application could have been reopened pursuant to the regulations,
if he could be paid retroactively.
Mississippi does not expressly require an accredited laboratory to conduct genetic
testing used to establish inheritance rights. We would expect a court that was concerned
about the validity of genetic testing in an inheritance proceeding to consider the
accreditation requirements found in the state's paternity provisions. The testing
facility here appears to satisfy those paternity provisions; however, the issue of
accreditation does not seem to be an issue in this case.
On January 27, 2001, NH died while domiciled in Mississippi. C1 was born on June.
C2 was born on August. The children's mother, R~, has been married to D~ since December
19, 1988. There is no evidence in the file that they ever divorced. In fact, the children's
grandmother, B~, signed an SSA-795 stating that, to her knowledge, R~ and D~ never
On September 10, 2004, B~ (Applicant), applied for surviving child's benefits on the
children's behalf. Applicant submitted the results from a DNA kinship test dated April
12, 2005. The DNA samples were taken from R~, C1, and C2 as well as L~, NH's father,
and M~, NH's sister. The results showed that NH was not excluded as the children's
biological father and that the probability of paternity was of 99.71%. The conclusion
was based upon the assumption that M~ was NH's biological full sibling and L~ was
NH's biological father. This DNA test was conducted by Reliagene Technologies, Inc.
Reliagene's stationary claims that it is accredited by "the Parentage Testing Committee
of the American Association of Blood Banks."
The record also includes copies of the children's birth certificates. C1's birth certificate
lists D~ as the father. C2's birth certificate does not list a father. Furthermore,
the record includes a form SSA-795 signed by D~ in July 2001 that states he is not
the father of C1 or "the unborn child that R~ is carrying." We can infer that the
referenced unborn child is C2 (who was born on August).
1. Sufficiency of DNA testing of the father and sister of NH to establish paternity
under Mississippi law and entitle C1 and C2 to child's insurance benefits on NH's
When determining entitlement to surviving child's benefits, the Agency applies the
inheritance laws of the state where the insured had his permanent home when he died.
See § 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R.
§ 404.355(a)(1), (b)(1) (2006). Agency regulations further provide that if applicable
state inheritance law requires a court determination of paternity, the Agency will
not require a court determination, but will decide paternity by using the standard
of proof that the state court would use. 20 C.F.R. § 404.355(b)(2). The Agency will
also not apply any state inheritance law that an action to establish paternity must
be taken within a specified period of time measured from the worker's death or the
child's birth. See id. NH was domiciled in Mississippi when he died.
Under Mississippi law and POMS PR 01115.027A, a child may inherit from the father through intestate succession if paternity is
established by an adjudication supported by clear and convincing evidence and if the
adjudication is commenced within one year after death of the intestate or within 90
days after the first publication of notice to creditors to present their claims, whichever
is less. See Miss. Code § 9-1-15(3)(c). Proof by clear and convincing evidence reflects "the high
degree of confidence society demands in adjudications of paternity" and requires a
level of proof greater than a preponderance of evidence, but less than beyond a reasonable
doubt. See In re Estate of Grubbs, 753 So.2d 1043, 1048 (Miss. 2000); Smith v. Bell, 876 So.2d 1087, 1090-91 (Miss. Ct. App. 2004).
Mississippi's intestacy statute does not address genetic testing, but its paternity
statute does. Under the Mississippi version of the Uniform Parentage Act (UPA), there
shall be a rebuttable presumption of paternity if the court finds that the probability
of paternity (as calculated by the experts qualified as examiners of genetic tests)
is 98 percent or greater. See Miss. Code. § 92-9-27(2). This presumption may only be rebutted by a preponderance
of the evidence. Id. However, the state of Mississippi does not recognize the use of UPA paternity presumptions
in an intestacy proceeding or mandate the necessity of DNA testing "in cases of descent
among illegitimates." See Smith v. Bell, 876 So.2d 1087, 1092 (Miss. Ct. App. 2004); see also Grubbs, 753 So.2d at 1052 ("Genetic test results are admissible as evidence of paternity,
but are not necessarily conclusive."). Rather, the courts look to both genetic and
non-genetic evidence to determine paternity in an intestacy proceeding. See Grubbs, 753 So.2d at 1051-53 (blood tests yielding a 99.59649% probability of paternity
is not conclusive, given conflicting non-genetic evidence offered by the parties).
Given this authority, we conclude that the courts will not look to the paternity provisions
in the UPA to govern paternity proceedings under the state's intestacy statutes. Thus,
it is our opinion that the DNA testing that shows a 99.71% probability that NH is
the father of the children in this case may create a presumption of paternity under
the Mississippi paternity statute, but such evidence alone would not establish that
C1 and C2 are NH's children for entitlement purposes.
2 . Sufficiency of DNA testing to rebut the presumption that D~ is the children's
D~ has been married to R~ at all times relevant to this application for benefits,
and both C1 and C2 were born while R~ was married to D~. Thus, D~ is presumed to be
the children's natural father under Mississippi law. See Bell, 876 So.2d at 1091. Consequently, an Agency adjudicator could not conclude that C1
and C2 are NH's children for entitlement purposes based on the facts provided to the
Agency, even with the DNA testing establishing a 99.71% probability that NH is the
father of the C1 & C2.
Under Mississippi law, "the presumption of legitimacy is one of the strongest known
to our law." Bell, 876 So.2d at 1091 (citing Kareina by Vronsky v. Presley, 526 So.2d 518, 5123 (Miss. 1988). A party challenging legitimacy may prevail if
he proves beyond a reasonable doubt that the legal husband of the mother is not, in
fact, the biological father. Id. at 1091. The heavy burden is a function of the level of confidence public policy
demands in findings of illegitimacy. See In Re Estate of Taylor, 609 So.2d 390, 394 (Miss. 1992). Any evidence tending to support or deny paternity
may be considered. Id. The Supreme Court of Mississippi also noted in dicta that to rebut the presumption, the court should be "left with the firm and definite
conviction that a mistake had been made" and that the evidence shows that the child
was the son or daughter of the putative father and not the son or daughter of the
legal husband, despite the strong presumption of legitimacy. See Bell, 876 So.2d at 1091. "The question in the end is whether the court can say beyond
a reasonable doubt, given the totality of the circumstances as shown by all of the
evidence before it, that the husband is not the father." Taylor, 609 So.2d at 394.
In this case, the evidence does not show beyond a reasonable doubt D~ is not the father
of C1 and C2, and that NH is the father. Clearly, the most probative evidence demonstrating
that D~ is not the father is the DNA testing on NH's father and sibling that shows
a 99.71% probability that NH is the father of the children. However, as noted above,
the Supreme Court of Mississippi finds such testing admissible, but not conclusive.
In Taylor, the Court noted that "blood tests can 'produce a high level of discrimination either
excluding or including a given male as the father of a particular child.'" Id. at 394. As such, the DNA testing alone is insufficient to rebut the presumption that
D~ is the father of C1 and C2.
In addition, the non-genetic evidence in the case file is insufficient to rebut the
presumption that D~ is the father. In Bell, the court found sufficient evidence to rebut the presumption of legitimacy based
on non-genetic evidence. For instance, the court considered the testimony from the
child, the child's mother, and the decedent's two sisters, all of whom indicated that
the child was the son of the decedent. See id. at 1091. More significantly, the court considered school and military records that
listed the decedent as the father and the obituary which listed the child as a survivor.
See id. Based on this evidence, the court was "completely satisfied" that the decedent was
the biological father. In this case, the evidence falls short of that provided in
Bell. First, there are no records of any kind which acknowledges that NH was the father.
There are no school records, military records, or any obituary which named C1 or C2
as his children. Likewise, there is no written acknowledgment from NH indicating that
he is the father of both children and any evidence that NH pursued any legal avenues
to establish paternity of C1. With regard to C2, there is some evidence, albeit not
very probative, from C2's kindergarten teacher which suggested NH held himself out
as the father; however, there is no evidence that NH acknowledged C2 as his child
or made any effort, legal or otherwise, to establish paternity, despite the fact that
they share the same name. Given such evidence, a Mississippi court could reasonably
conclude that such evidence does not rebut the presumption of legitimacy, because
it does not establish that NH is the father to the level of "complete satisfaction."
Furthermore, the file contains minimal evidence suggesting that D~ is not the father
of either C1 or C2. While D~ signed a statement for the Agency in July 2001 indicating
that C1 was not his child, there is no evidence that D~ did not hold himself out as
the father of the child, other than his signed statement. Contrarily, C1's birth certificate
lists D~ as the father of the child, and they both share the same last name. Further,
D~' statement does not constitute a disclaimer or waiver of his legal rights to C1.
Likewise, the file is devoid of evidence that D~ disclaimed his legal rights to C2
or that such a legal waiver was made. However, his statement to the Agency makes reference
to "the unborn child that R~ is carrying," and it can only be inferred that he is
referring to C2 who was born one month after this statement was signed in July 2001.
Nevertheless, such evidence falls short of demonstrating beyond a reasonable doubt that D~ is not the father of C1 or C2. As such, an Agency adjudicator could not conclude
that C1 and C2 are NH's children for entitlement purposes.
Mississippi law does not treat illegitimate and legitimate children the same, and
an established illegitimate relationship would have a prospective effect from the
date of DNA testing.
In this case, C1 and C2 are not entitled to benefits on the record of NH, and thus,
retroactive payment is not at issue. However, if C1 and C2 met the requirements of
an illegitimate child with inheritance rights of NH and were entitled to benefits
on the record of NH, they would not have inherited in the same manner as if they were
legitimate, and would have been paid prospectively from the date of the DNA testing.
4. The children's prior applications should not be reopened.
In this case, C1 and C2 are not entitled to benefits on the record of NH. Even if
they were entitled to benefits, they would be paid prospectively from the date of
DNA testing. Thus, whether to reopen C1 and C2's prior applications is not at issue.
However, if C1 and C2 could be paid retroactively, you asked whether the children's
prior applications should be reopened.
With regard to C1's prior application, there is no regulatory authority to reopen
her prior claim even if she were to be paid retroactively. The regulations permit
the Agency to reopen the determination within four years of the notice of the initial
determination, provided there is good cause. See 20 C.F.R. § 404.988(b). The regulations provide that there is good cause to reopen
a determination or decision if "new and material evidence is furnished." 20 C.F.R.
§ 404.989(a)(1). In this case, however, the initial determination denying C1's prior
claim was dated June 30, 2001, more than four years after the initial determination.
Although 20 C.F.R. § 404.991a permits the Agency to revise a determination if an investigation
into whether to revise the determination began before the applicable time period expired,
there is no evidence that such an investigation took place. Furthermore, 20 C.F.R.
§ 404.988(c) permits the Agency to reopen a determination at any time if one of the
conditions in the regulation are met. However, none of these conditions would have
With regard to C2's prior application, there would have been authority under 20 C.F.R.
§ 404.988(b) to reopen this claim if he were to be paid retroactively. The initial
determination denying C2's prior claim was dated January 20, 2003, and the receipt
of DNA testing establishing that NH is the father of C2 would most certainly qualify
as "new and material evidence." Thus, the Agency could have found "good cause" to
reopen the January 20, 2003 determination that C2 was not entitled to benefits.
5. Mississippi accreditation for genetic testing.
Under Mississippi law, there are no specific accreditation requirements for genetic
testing in connection with establishing inheritance rights. While Mississippi provides
for some accreditation requirements for genetic testing in connection with paternity
proceedings (§§ 93-9-23 and 93-9-21), we do not find any statutory or case law support
for extending these requirements to genetic tests conducted in connection with establishing
inheritance rights. In fact, the Supreme Court of Mississippi noted in 2004 that the
court was "unable to find any case in which Section 93-9-21(1) has been applied to
a case of descent and distribution." Bell, 876 So.2d at 1092. Thus, Mississippi does not require genetic testing to be conducted
by an "accredited laboratory" to establish inheritance rights, and sections 93-9-21
and 93-9-23 of the Mississippi Code do not apply to the use of genetic testing for
establishing inheritance rights.
We note that the accreditation requirements for genetic testing in connection with
paternity proceedings, as stated in Sections 93-9-21 and 93-9-23, may serve as useful
guidance to determine the validity of genetic testing in connection with establishing
inheritance rights. See POMS PR 01115.027A (discussion of statutory requirements for genetic testing in a paternity proceeding).
Specifically, Section 93-9-23 states that genetic testing shall be made by experts
qualified as examiners of genetic tests who shall be appointed by the court pursuant
to Section 93-9-21(5). Section 93-9-21(5) requires that genetic tests shall be performed
by a laboratory selected from the approved list as prepared and maintained by the
Department of Human Services. While we could not find the approved list from the Department
of Human Services, the U.S. Department of Health and Human Services maintains a directory
of approved genetic testing laboratories for each state, and for Mississippi, the
website lists only Reliagene as an approved genetic test laboratory for that state.
See Department of Health and Human Services, Administration for Children and Families,
Office of Child Support Enforcement, http://www.acf.hhs.gov/programs/cse/pubs/directories/genetic-testing/mississippi.html (last visited April 18, 2006).
The genetic testing performed in this case may create a rebuttable presumption of
paternity that NH is the father in a paternity proceeding, but not in an inheritance
proceeding. In addition, this DNA testing cannot rebut the controlling presumption
that D~ is the father of either C1 or C2. Thus, when taking into the account the evidence
before the Agency, a Mississippi court would find C1 and C2 to be the children of
D~, and an Agency adjudicator could not conclude that C1 and C2 are NH's children
for entitlement purposes. If C1 and C2 had qualified as NH's children under Mississippi
law, they would have been paid prospectively from the date of the DNA testing, and
because these children would not have been paid retroactively, the Agency would not
need to reopen their prior applications. Furthermore, Mississippi does not require
genetic testing in connection with establishing inheritance rights to be conducted
by an accredited laboratory; however, we would expect a court that was concerned about
the validity of genetic testing in an inheritance proceeding to consider the accreditation
requirements found in the state's paternity provisions.
Mary Ann Sloan
Regional Chief Counsel
Assistant Regional Counsel