You have asked for an opinion as to whether Joseph (the claimant) is entitled to
auxiliary benefits on the account of William NH), pursuant to Section 216(h)(2) or
(h)(3) of the Social Security Act (the Act), 42 U.S.C. § 416(h). The NH was married
to Joseph’s mother, Monika, when she gave birth to the claimant; however, both Monika
and the NH state that the claimant is not the NH’s biological son.
It is our opinion that under Lord Mansfield’s Rule, which precludes testimony of non-access
in a marriage, SSA does not have sufficient evidence to rebut the presumption of legitimacy
that a child born to a married woman has been fathered by her husband. Further, New
York public policy does not permit a child to be delegitimized. Therefore, the claimant
is entitled to auxiliary 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.
The NH married Monika in Huntington, New York on September 19, 1992. The claimant
was born in Huntington, New York, in December. The Certificate of Birth did not record
a father’s name. The claimant’s last name is listed as William and Monika.
The NH filed for Social Security disability benefits three times, and he did not name
the claimant as his child on any of the applications. The only child mentioned was
William. The NH’s disability claim was approved in 2009 and an application for auxiliary
benefits was filed for William .
On September 12, 2012, Monika filed a claim on behalf of the claimant on the NH’s
record. In her application and a subsequent letter in support of her claim, Monika
stated that she is legally married to the NH, but they had separated in the mid 1990s.
She further stated that Joseph is not the biological child of the NH and the couple
was not living together when the claimant was conceived. Monika also stated that she
continues to be married to the NH, the NH is known as the claimant’s father, the relationship
between the NH and the claimant is good, and the two see each other often.
According to the NH, although he is not claimant’s biological father, he sees the
claimant regularly and the claimant knows him as his father. The NH also claims that
he did not mention Joseph on his disability applications because he thought SSA was
asking about children who lived with him.
Evidence of the case:
• Marriage Certificate of the NH and Monika
• Birth Certificate for Joseph
• Statements by Monika
• Statement by the NH
• Reports of Contact by the Claims Representative
We believe that, after the application of Lord Mansfield’s rule, sufficient evidence
has not been presented to rebut the presumption that the NH is Joseph’s father.
A. Entitlement to Auxiliary Benefits - In General
For purposes of child’s benefits under the Act, a “child” is defined as the child,
legally adopted child, stepchild, or, in limited circumstances, grandchild of an insured
individual. Sections 202(d), 216(e) of the Act. See 42 U.S.C. §§ 402(d), 416(e). Under one method for determining whether an applicant
is the child of an insured individual, the Commissioner applies the law governing
the devolution of intestate personal property applied by the courts of the State in
which the insured individual was domiciled at the time he files an application. See 42 U.S.C. § 416(h)(2)(A). If the claimant can inherit as the NH’s child under the
state intestacy law, he is considered the NH’s “child” under sections 216(e) and 216(h)(2)(A)
of the Act. See id. Because the NH was domiciled in New York when the claimant’s application was filed,
New York’s law of intestate succession applies in determining the claimant’s status
as the child of the NH for purposes of section 216(h)(2)(A) of the Act. 20 C.F.R.
§§ 404.355(a)(1), 404.355(b). Therefore, New York law applies in determining whether
the claimant is a child under the Act.
B. Intestate Succession Under New York Law
New York’s intestacy law provides that the “issue” of a decedent are eligible to inherit
the decedent’s property. N.Y. Est. Powers & Trusts Law § 4-1.1 (McKinney 2011). State
law defines “issue” as descendants in any degree from a common ancestor, including
adopted children. N.Y. Est. Powers & Trusts Law § 1-2.10 (McKinney 2011).
New York law presumes that a child born to a married woman has been fathered by her
husband. In re F~’s Estate, 44 N.Y. 2d 137, 142 (N.Y. 1978), app. dism’d 439 U.S. 1059 (1979), reh’g den. 440 U.S. 968 (1979). New York courts have described this presumption as “one of the
strongest and most persuasive known to the law.” In re F~, 253 N.Y. 1, 7 (N.Y. 1930). However, the presumption of legitimacy may be rebutted
by clear and convincing evidence to the contrary. Marilene S. v. David H., 63 A.D.3d 949 (N.Y. App. Div. 2009). To be “clear and convincing,” evidence must
be sufficient to show that the application of the presumption of legitimacy under
the particular circumstances of the case would be “entirely incompatible with ‘common
sense and reason.’” In re F~, 859 N.Y.S. 2d 902, 902 (N.Y. Surr. 2008) (citations omitted). In F~, the court held that the clear and convincing standard required evidence establishing
that it is “highly probable” that a mother’s husband is not the child’s biological
father. Id. (citation omitted).
Such evidence may include non-scientific evidence sufficient to overcome the presumption
as wholly incompatible with reason and common sense. Id. at 902. Examples of evidence that is acceptable to overcome the presumption of legitimacy
include proof that the spouses did not have access to each other at or around the
time of conception, genetic testing establishing that the husband is not the biological
father, or proof that the husband was physically incapable of fathering a child. Id. at 902, n. 1 (citations omitted).
However, with regard to evidence of non-access, New York follows Lord Mansfield’s
rule, which prohibits the use of the testimony of either a husband or wife to non-access
to rebut the presumption of legitimacy of a child born within their marriage. Comm’r of Pub. Welfare ex rel. Vincent v. Koehler, 284 N.Y. 260, 265 (N.Y. 1940); Richard B. v. Sandra B. B., 209 A.D.2d 139 (N.Y. App. Div. 1995); State ex rel. H. v. P., 457 N.Y.S. 2d 488, 491 (N.Y. App. Div. 1982); see also POMS GN 00306.015 (SSA follows state rules including Lord Mansfield’s rule), GN 00306.025 (SSA will not accept evidence contrary to Lord Mansfield’s rule), and GN 00306.026 (New York follows Lord Mansfield’s rule).
Based on the evidence provided, and on our review of New York law, we believe that
insufficient evidence has been presented to rebut the presumption of legitimacy.
The evidence provided indicates that the NH was married to Monika at the time of the
claimant’s conception, thus creating a presumption under New York law that he is the
NH’s child. Because New York courts apply Lord Mansfield’s Rule, they would not accept
the testimony of the NH or Monika to prove that the claimant was not the NH’s son.
Id. Excluding their testimony, the only evidence that claimant was not the NH’s child
consists of the absence of a father’s name on claimant’s birth certificate and the
absence of claimant’s name on the NH’s earlier benefit claims. We do not believe that
this evidence is sufficient to meet the “clear and convincing” standard set forth
by New York law.
We note that New York has created a statutory exception to Lord Mansfield’s rule for
paternity proceedings. S~ NY Fam. Ct Act § 531. Section 5 of the Family Court Act was found to be unconstitutional
as applied to genetic mothers who could not establish maternity, but the Court extended
the statute rather than strike it. In re S~, 879 N.Y.S.2d 677, 689-90 (Surr. Ct. N.Y. Cty 2009). Therefore, S~ does not have an impact on the pending case.
We do not believe that that exception applies here. Significantly, there is no action
to establish paternity. See Fam. Ct Act, § 522 (permitting proceedings for two purposes: to establish the paternity
of a child and to compel support). Rather, the statements by NH and Monika go to
delegitimizing the claimant. It is contrary to New York State’s public policy to delegitimize
a child without settling the issue of paternity. H. v. P., 457 N.Y.S. 2d at 489. Indeed, where a child has known one person as his father, courts
have sometimes estopped the father from attempting to deny paternity. See, e.g., Felix O. v. Janette M., 934 N.Y.S.2d 424, 426-27 (N.Y. App. 2nd Dept.2011) (estopping person seeking genetic testing where child had relationship with his known
Thus, even assuming that New York law would permit the testimony of the NH and Monika
in a paternity action, it is unlikely that a court would find the presumption of legitimacy
has been overcome. See H.v. P., 457 N.Y.S. at 489-91 (In habeas corpus proceedings, court invoked Lord Mansfield’s
Rule because there was no proceeding pending to establish paternity or support).
Thus, based upon our review of law and the facts you provided to us, we believe that
sufficient evidence to rebut the presumption of legitimacy has not been presented
in this case. Therefore, the claimant is entitled to auxiliary 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.
Stephen P. Conte
Regional Chief Counsel, Region II
Assistant Regional Counsel