TN 34 (12-17)

PR 01010.047 Tennessee

A. PR 18-019 Presumptions of Legitimacy Based on Birth during Marriage and Sibling DNA Testing to Establish Paternity

Date: November 28, 2017

1. Syllabus

Under Tennessee law, a man is rebuttably presumed to be the father of a child if the man and the child’s mother are married or have been married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce. The presumption also applies if genetic tests results show a statistical probability of parentage of 95% or greater.

Claimant was born while the number holder (NH) and claimant’s mother were married. DNA test results indicate a 96.57% probability that the claimant and the couple’s first child, who is receiving benefits as the NH’s child, share the same mother and father. These results are equivalent to DNA test results showing a greater than 95% probability that the NH is the claimant’s father.

The claimant’s birth during his mother’s marriage to the NH and the DNA test results each created a rebuttable presumption that the claimant is the NH’s child under Tennessee law. The evidence provided does not rebut these presumptions. Therefore, the claimant is NH’s child for determining his eligibility for child’s insurance benefits on NH’s record.

2. Opinion

QUESTION

You asked whether A~ (Claimant) can qualify as the child of number holder D~ (NH), the ex-husband of M~ (Claimant’s mother), based on DNA testing that showed a 96.57% probability that the couple’s first child (Brother), who is receiving benefits as NH’s child, and Claimant are full siblings.

OPINION

The DNA test result here, indicating a probability that Brother and Claimant are full siblings, is functionally equivalent under agency rules to showing the same probability that Claimant is NH’s child. The DNA test showing a 96.57% probability of paternity and Claimant’s birth during his mother’s marriage to NH each created a rebuttable presumption that Claimant is NH’s child. Notwithstanding some contrary evidence, because we conclude that those presumptions are unrebutted, an Agency adjudicator could conclude Claimant is NH’s child.

BACKGROUND

According to the information provided, Claimant’s mother married NH on May XX, 2002. The couple divorced on September XX, 2006. The court granting the divorce noted the couple had a minor child, Brother, and that Claimant’s mother was pregnant at the time of the divorce. The court found NH was not the father of the unborn child.

According to a Tennessee birth certificate issued May XX, 2010, Claimant was born November XX, 2005. The birth certificate does not name a father. Although Claimant was born before she and NH divorced, Claimant’s mother states she did not seek benefits on Claimant’s behalf because she believed Claimant was not NH’s child. She also states she and NH were separated on and off around the time of Claimant’s conception. NH was domiciled in Tennessee when he died on May XX, 2012. A March XX, 2017, DNA test report indicates a 96.57% probability that Claimant and Brother are full siblings and 99.89% that they are at least half siblings.

DISCUSSION

To qualify for child’s insurance benefits on the earnings record of an insured individual who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2017).1 “Child” includes “the child” of an insured individual. Act § 216(e)(1); see 20 C.F.R. § 404.354; Astrue v. Capato, 566 U.S. 541, 558 (2012). To establish his status as “the child” of a deceased insured individual within the meaning of section 216(e)(1) of the Act, a claimant may show he could inherit a child’s share of the insured’s personal property under the intestacy laws of the state where the insured had his permanent home when he died. See Act, § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 566 U.S. at 558; Program Operations Manual System (POMS) GN 00306.001C.1.a., .C.2.a. Because NH was domiciled in Tennessee when he died, we look to Tennessee law to determine if Claimant is NH’s child for purposes of intestate succession.

Under Tennessee law, the natural child of deceased individual is entitled to a share of the deceased individual’s intestate estate. See Tenn. Code Ann. §§ 31-1-101(1), (5), (6), 31-2-101(a), 31-2-104(b) (West 2017)2 ; see also POMS GN 00306.010B (stating a natural, legitimate child “[h]as inheritance rights in the parent’s estate under the law of all States”). A man is rebuttably presumed to be the father of a child in Tennessee if “[t]he man and the child’s mother are married or have been married to each other and the child is born during the marriage or within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce.” Tenn. Code Ann. § 36-2-304(a)(1); see also POMS GN 00306.020A.1 (stating “State laws presume that a child born in wedlock is the natural legitimate child of the mother’s husband”). The presumption also applies if “[g]enetic tests have been administered as provided in § 24-7-112, an exclusion has not occurred, and the test results show a statistical probability of parentage of ninety-five percent (95%) or greater.”3 Tenn. Code Ann. § 36-2-304(a)(5); see POMS GN 00306.635A.6; POMS PR 01115.047B (PR 08-097, Apr. 16, 2008). The standard of proof to rebut paternity is a preponderance of the evidence and “all prior presumptions of parentage established by the previous paternity and legitimation statutes and case law are abolished.” Tenn. Code Ann. § 36-2-304(b)(3), (c). “Preponderance of the evidence has been commonly defined as evidence that as a whole shows that the ‘existence of the contested fact is more probable than its non-existence.’” State v. Wilkerson, No. W1999-00978-CCA-R3-CD, 2000 WL 763971 (Tenn. Crim. App. 2001). Although Tennessee Code Annotated § 36-2-304 is a parentage, rather than intestacy, statute, Tennessee law provides that a child shall be entitled to inherit from the father as if born to the father in wedlock when the relationship of father and child is established under the parentage statutes. See Tenn. Code Ann. § 36-2-313(a).

Claimant appears to be entitled to a presumption of paternity under both the born-within-wedlock and the DNA-test provisions noted above. Claimant’s mother married NH on May XX, 2002, Claimant was born November XX, 2005, and the couple divorced on September XX, 2006; so, Claimant was born while NH and Claimant’s mother were married. Moreover, DNA test results show greater than 95% probability that Brother and Claimant are full siblings. Consequently, these test results are, for purposes of an agency child status determination,4 tantamount to DNA test results showing a greater than 95% probability that NH is Claimant’s father. Specifically, a March XX, 2017, DNA test report indicates a 96.57% probability that Claimant and Brother are full siblings,5 that is, that they share the same mother and father.

Some facts presented tend to rebut the presumptions; these include: Claimant’s birth certificate does not name NH as father, Claimant’s mother did not seek child support from NH for Claimant, the 2006 divorce order does not appear to mention Plaintiff as a child of NH, and Claimant’s mother did not seek child’s benefits for Claimant until May 2017 (nearly 5 years after NH died). In addition to using the results of DNA tests to determine paternity, a Tennessee court might also consider (1) the declarations and conduct of Claimant’s mother, (2) any acknowledgment by NH, (3) family resemblance, and (4) evidence concerning NH’s access, opportunity, and capacity to have children. See McDowell v. Boyd, No. 01A01-9509-CH-00413, 1997 WL 749470 at *2 (Tenn. Ct. App. 1997). The record contains no evidence concerning a family resemblance, acknowledgement by NH, or NH’s capacity to have children at the relevant time. With respect to NH’s “access,” Claimant’s mother claims she was only separated from NH “on and off” during the period of probable conception. Claimant’s mother also did not seek child support or benefits earlier because she thought NH was not the father until she received the DNA test results. Although such assertions do not conclusively establish NH had access to Claimant’s mother at the time of conception, the information provided provides no evidence of infertility or absence of access, and nothing provided contradicts these statements by Claimant’s mother.

Consequently, an agency adjudicator could determine that Tennessee courts would find Claimant to be NH’s child based on the DNA tests and his birth within wedlock, or based on the DNA test results, alone. Statements by Claimant’s mother that she and NH were together at times during the time of Claimant’s conception and her explanations for her failure to seek child support or benefits earlier provide additional support for a finding Claimant was NH’s child. We do not believe a Tennessee court would find the absence of NH’s name on Claimant’s birth certificate or inactions by Claimant’s mother, above, sufficient to rebut the presumptions of paternity in this case. However, if the agency adjudicator has reason to disbelieve the representations of Claimant’s mother, especially given the unavailability of NH to contest those representations, the adjudicator could reach the opposite conclusion.

CONCLUSION

Claimant’s birth during the marriage of NH and Claimant’s mother and the DNA test results in this case created rebuttable presumptions that Claimant is NH’s child under Tennessee law, and the evidence provided does not rebut that presumption. Therefore, Claimant is NH’s child for determining her eligibility for child’s insurance benefits on NH’s record.

B. PR 09-155 Acceptability of Oral Statements to Rebut the Presumption of Legitimacy - Tennessee

Date: August 10, 2009

1. Syllabus

In Tennessee, a statement by the claimant's mother indicating the number holder orally acknowledged that Claimant was his son and occasionally provided for his needs, accompanied with a program from the number holder's funeral listing the claimant as his son is not sufficient to overcome the presumption that the mother's husband was the father. The evidence listed previously cannot be considered clear and convincing when the husband never denied paternity and he was shown as father on the Tennessee birth certificate. No blood test was performed.

2. Opinion

QUESTION PRESENTED

You asked whether the evidence of oral acknowledgement can rebut the presumption of legitimacy for a child born in wedlock and establish clear and convincing evidence sufficient to establish the claimant as the child of the number holder for the purposes of child’s insurance benefits.

OPINION

For the reasons stated below, we believe that the evidence submitted in this case is not sufficient under Tennessee law to rebut the presumption of legitimacy and, therefore, a Social Security Administration (SSA) adjudicator could not find the child claimant is entitled to child’s insurance benefits on the account of the deceased number holder.

BACKGROUND

According to the materials provided, Torrey C~, the number holder (NH), resided in Tennessee when he died on January XX, 2009. On March XX, 2009, Marilyn C~ (Claimant’s mother) applied for child’s insurance benefits on behalf of Calvin A. P~ (Claimant) on the earnings record of NH. NH and Claimant’s mother were never married. At the time of Claimant’s birth on May XX, 2007, Claimant’s mother was married to Terrance P~ (Husband). Claimant’s mother reported she married Husband on April XX, 2006, but a marriage certificate indicates that marriage occurred on April 26, 2007. Claimant’s birth certificate lists Husband as his father. The file includes a signed statement from NH’s mother, Annie C~, indicating NH orally acknowledged that Claimant was his son. Also in the file is a copy of the program from NH’s funeral listing Claimant as his son. Claimant’s mother also stated, “If I needed something for (Claimant) I could tell [NH] and he would get it,” but she admitted NH did not make any regular support payments.

DISCUSSION

To qualify for child’s insurance benefits on the record of an insured individual who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2009). “Child” includes the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2009). If the putative father never married the child’s mother, the claimant’s status as the surviving child of the putative father is governed by either section 216(h)(3)(C) or the Act or section 216(h)(2)(A) of the Act,. To establish child status under section 216(h)(3)(C) of the Act, Claimant must show one of the following: (1) NH acknowledged in writing Claimant was his son, (2) a court decreed NH to be Claimant’s father, (3) NH was ordered to contribute to Claimant’s support, or (4) NH was the father and living with or contributing to Claimant’s support at the time NH died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4) (2009). We are aware of no evidence satisfying any of the required conditions in section 216(h)(3)(C) of the Act.

To establish his status as the surviving child of NH under section 216(h)(2)(A) of the Act, Claimant must show he could inherit NH’s personal property as his child under the intestacy laws of the state where NH had his permanent home when he died. See Act § 216(h)(2(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2009). Because NH was domiciled in Tennessee when he died, the question is whether Claimant would be considered NH’s child for purposes of intestate succession under Tennessee law.

Under Tennessee intestacy law, an unmarried individual’s intestate estate would pass to his linear descendants, beginning with his surviving children. See Tenn. Code Ann. §§ 31-1-101, 31-2-104 (2009). A child may inherit from a deceased individual through intestate succession only if paternity is established by an adjudication before the father’s death or, thereafter, by clear and convincing evidence. See Tenn. Code Ann. § 31-2-105(a)(2)(B) (2009). In Tennessee, clear and convincing evidence must produce a firm belief as to the truth of the allegations sought to be established and no serious or substantial doubt about the conclusions drawn from the evidence. See Fruge v. Doe, 952 S.W.2d 408, 412 n.2 (Tenn. 1997); Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992).

However, a man is presumed to be the father of a child who is born either during the course of the marriage between the man and the child’s mother or within 300 days after the marriage. See Tenn. Code Ann. § 36-2-304(a)(1) (2009). In this case, Claimant was born during the course of marriage between Claimant’s mother and Husband. See State ex rel. Clark v. Wilson, 2002 WL 31863296, at *5 (Tenn. Ct. App. Dec. 23, 2002) (Although the child was born slightly over one month into the marriage, the mother’s husband was presumed to be the child’s father, because the child was born during the marriage). Therefore, Claimant is presumed to be the natural child of Husband, not NH.

For a person born in wedlock, Tennessee has applied the common law presumption that a child born to a married couple is the child of the husband, no matter how soon the birth follows the marriage. See Jackson v. Thornton, 179 S.W. 384 (Tenn. 1915). In the past, this presumption could be rebutted only by clear, strong, convincing evidence that the husband was impotent or absent so as to have no access to the mother. Id.

However, this traditional presumption was eroded in a decision that held that this presumption could be rebutted by clear and convincing evidence other than non-access. See Shell v. Law, 935 S.W.2d 402, 406 (Tenn. 1996). The clear and convincing evidence standard is a heightened burden of proof that requires more than the preponderance of the evidence standard but less than the beyond a reasonable doubt standard. See In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006).

The Tennessee Supreme Court has considered the case of a child born in wedlock who attempted to intervene in intestacy proceedings alleging that she was a child of a man other than the man married to her mother at the time of her birth. See In re Estate of Walton v. Young, 950 S.W.2d 956 (Tenn. 1997). In Young, the alleged illegitimate daughter was able to prove conclusively through a blood test that the man married to her mother at the time of her birth was not her father, but was unable to show that the decedent was her biological father by clear and convincing evidence. Id., at 958-960.

Thus, the presumption of paternity established by birth to a married couple can be rebutted by clear and convincing evidence. See In re Estate of Armstrong v. Manis, 859 S.W.2d 323, 327-328 (Tenn. Ct. App. 1993). In Manis, an individual born in wedlock was able to produce clear and convincing evidence to rebut the presumption that the man married to her mother at the time of her birth was her father and successfully pursued a claim on the intestate estate of her putative half-sister. Id. The burdens on the child to rebut the presumption of legitimacy and prove the paternity of another man merged into one. Id. The evidence the court relied on included (1) statements by the mother’s husband denying paternity; (2) the mother’s failure to deny an allegation that her husband was not the father; (3) the treatment of the child by the mother’s husband; (4) statements by the putative father acknowledging paternity; (5) the statements and behavior of other family members and acquaintances; and (6) evidence of a physical resemblance. Id., at 324-327.

Here, we do not believe the record contains clear and convincing evidence to rebut the presumption that Husband is Claimant’s father. The file includes some evidence suggesting NH, and not Husband, was Claimant’s father. Specifically, NH’s mother, Annie C~, provided a signed statement indicating NH orally acknowledged that Claimant was his son. Also the file includes a copy of the program from NH’s funeral listing Claimant as his son. Claimant’s mother also stated, “If I needed something for (Claimant) I could tell [NH] and he would get it,” but she admitted NH did not make any regular support payments.

However, the file does not contain results from a blood test, such as the one the Young court considered. In addition, Claimant’s birth certificate issued by Tennessee State Department of Health named Husband as the father of Claimant. Birth certificates are prima facie evidence of the facts contained therein. See Tenn. Code Ann. § 68-3-202 (2009). Also, the record does not indicate that Husband denied paternity of Claimant. In fact, Claimant’s mother specifically asked SSA to not tell Husband about the application she filed on Claimant’s behalf. Additionally, nothing in the record indicates Husband did not have access to Claimant’s mother or that Husband was impotent. Thus, we believe based on Tennessee law Claimant has not presented clear and convincing evidence sufficient to rebut the presumption that Claimant is Husband’s child.

Moreover, even if Claimant had provided sufficient evidence to overcome the presumption that Husband is his father, Claimant has not provided clear and convincing evidence that he was NH’s child. According to Tennessee case law, clear and convincing evidence of paternity exists if the deceased putative father orally admitted to paternity, established a close personal relationship with the child, and supported the child financially. See Majors v. Smith, 776 S.W.2d 538, 539-40 (Tenn. Ct. App. 1989). Similarly, clear and convincing evidence was established where the deceased putative father lived with the child’s mother as husband and wife although not legally married, acknowledged paternity to family members, and supported the children financially. See Robinson v. Tabb, 568 S.W.2d 835, 836 (Tenn. 1978).

In contrast, clear and convincing evidence was not established where the deceased putative father did not (1) attempt to legitimate the child by adjudication, (2) acknowledge paternity openly to the public, (3) hold the child out to his family as his daughter, or (4) provide support to the child’s mother, and (5) there was no evidence of community acceptance of the child as the putative father’s daughter. See Gentry v. Jordan, 1986 WL 8152, at * 2 (Tenn. Ct. App. July 25, 1986).

In this case, the record does not include clear and convincing evidence of paternity of the types discussed above. For instance, the record does not show that NH established a relationship with Claimant, that NH acknowledged paternity openly to the public, or that there was community acceptance of Claimant as NH’s son. Although NH’s funeral listing and statements from NH’s mother and Claimant’s mother suggest Claimant may be NH’s child, we do not believe the record contains clear and convincing evidence that Claimant was NH’s child.

CONCLUSION

We conclude that an SSA adjudicator could not find that the record provides clear and convincing evidence that Claimant is NH’s child for the purposes of Tennessee intestacy law and section 216(h)(2)(A) of the Act.

Mary A. S~
Regional Chief Counsel
By: Jennifer L. P~
Assistant Regional Counsel

C. PR 07-212 Presumption of Paternity and Artificial Insemination under Tennessee Law Number Holder - Bryan - Claimants - McKinley and Kathy

Date: September 6, 2007

1. Syllabus

Under Tennessee law, a man is presumed to be the father of a child who is born either during the course of the marriage between the man and the child's mother or within 300 days after the marriage. Our claimant was conceived during the marriage of NH and Mother and was born fewer than 300 days after their divorce. Therefore, Claimant is presumed to be the natural child of NH and this presumption can only be rebutted by clear and convincing evidence which can include a finding that the husband was impotent or had no access to the mother at the time of conception.

Even were these facts in dispute, the claimant could still able to inherit from the NH because Tennessee law also states that "[a] child born to a married woman as a result of artificial insemination, with consent of the married woman's husband, is deemed to be the legitimate child of the husband and wife."

Additionally, since the mother did not remarry she would be entitled to surviving divorced mother's benefits on this record retroactive to the month in which claimant's application was filed.

2. Opinion

QUESTION

You asked whether the claimant, who was reportedly conceived through artificial insemination from an anonymous sperm donor, is eligible to receive child's insurance benefits on the account of the number holder and if so, what is the earliest date of entitlement. You also asked if the claimant's mother is eligible to receive mother's insurance benefits and if so, what is the earliest date of entitlement.

ANSWER

For the reasons stated below, we believe a Social Security Administration (SSA) adjudicator could find the claimant eligible to inherit from the number holder through intestacy and would thus be eligible for child's benefits on the account of the number holder. We also believe the claimant's mother is eligible to receive mother's benefits. Both the claimant and his mother are eligible to receive benefits for up to six months immediately before the month in which the claimant's application was filed.

BACKGROUND

Bryan G~, the number holder (NH), and Kathy L. C~ (Mother) were married on July XX, 1993. NH and Mother signed an artificial insemination agreement on October XX, 1994, for the purpose of obtaining sperm from an anonymous donor. The agreement included the statement "if with the consent of her husband a wife is artificially inseminated, the husband is treated in law as if he were the natural father of a child thereby conceived." NH and Mother were divorced on October 19, 1995, by order of the Circuit Court for the Fourth Judicial District at Newport, Cocke County, Tennessee. McKinley C~ (Claimant) was conceived prior to the divorce of NH and Mother. The Agreed Judgment granting the divorce does not reference Claimant or the issues of custody and child support.

Claimant was born on May XX, 1996, and never lived with NH. Claimant's original birth certificate listed the name of Mother's boyfriend, Michael P~, as Claimant's father. Mother claims Mr. P~ was listed as Claimant's father without her knowledge. A new birth certificate was issued on August XX, 1996, listing no father for Claimant. NH died on June XX, 2006. Mother initiated legitimation proceedings in the Juvenile Court of Cocke County, Tennessee. On June XX, 2007, the court issued an order declaring NH to be Claimant's legal father. The court concluded by a preponderance of the evidence Claimant was conceived by artificial insemination prior to the divorce of NH and Mother and NH voluntarily choose to be part of the artificial insemination program. The State of Tennessee issued a new birth certificate listing NH as Claimant's father on July XX, 2007.

Mother filed a claim on Claimant's behalf for child's insurance benefits on the account of NH. Mother also filed a claim for mother's insurance benefits on her own behalf. Both applications have a protective filing date of June XX, 2007. NH, Mother and Claimant have never received benefits from SSA.

DISCUSSION

Entitlement to Child's Insurance Benefits - In General

To qualify for child's benefits on the earnings record of an insured individual who has died, a claimant must be that individual's child. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2007). A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured's personal property as his child under the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(e), (h)(2)(A), 42 U.S.C. § 416(e), (h)(2)(A); 20 C.F.R. § 404.355(b) (2007). Since NH was domiciled in Tennessee when he died, the question is whether Claimant would be considered NH's child for purposes of intestate succession under Tennessee law.

Tennessee Law Applied to this Claim

The natural or adopted child of NH would be entitled to a share of NH's intestate estate. See Tenn. Code Ann. §§ 31-1-101, 31-2-104 (2007). A man is presumed to be the father of a child who is born either during the course of the marriage between the man and the child's mother or within 300 days after the marriage. See Tenn. Code Ann. § 36-2-304(a)(1) (2007). Claimant was conceived during the marriage of NH and Mother and was born fewer than 300 days after their divorce. Therefore, Claimant is presumed to be the natural child of NH. Under Tennessee law, this presumption can only be rebutted by clear and convincing evidence which can include a finding that the husband was impotent or had no access to the mother at the time of conception. See POMS PR 01010.047(A). The clear and convincing evidence standard is a heightened burden of proof which requires more than the preponderance of the evidence standard but less than the beyond a reasonable doubt standard. See In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006). To satisfy the clear and convincing evidence standard, a party must eliminate any serious or substantial doubt concerning the accuracy of the conclusions drawn from the evidence and should produce a firm belief in the truth of the allegations sought to be established. Id.

The juvenile court determined Claimant was conceived through artificial insemination from an anonymous donor (that is, the court determined Claimant was not NH's natural child). However, the juvenile court reached this conclusion by a preponderance of the evidence as opposed to clear and convincing evidence. SSA is not required to accept a state court determination unless (1) an issue in a claim for Social Security benefits previously has been decided by a state court of competent jurisdiction; (2) this 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. See Social Security Ruling 83-37c. SSA is not required to accept the findings of the juvenile court because those proceedings were initiated after the death of NH and, therefore, there was no party opposing Mother's request. Furthermore, it is unclear what evidence the juvenile court relied upon in determining Claimant was not NH's natural child. See id. Mother claims NH was sterile, although she did not submit medical evidence to substantiate her claim. Although NH voluntarily entered into an artificial insemination agreement, the agreement contains no statement by NH acknowledging himself as sterile. Nor does the record contain any evidence that NH did not have access to Mother at the time of Claimant's conception. We believe the record does not provide clear and convincing evidence sufficient to rebut the presumption Claimant is NH's natural child.

Even if the evidence were sufficient to rebut this natural child presumption, Claimant would still be entitled to inherit from NH's intestate estate. "A child born to a married woman as a result of artificial insemination, with consent of the married woman's husband, is deemed to be the legitimate child of the husband and wife." Tenn. Code Ann. § 68-3-306 (2007). There is no evidence NH's signature on the artificial insemination agreement was involuntary and the text of the agreement placed NH on notice that he could be considered the legal father of any child produced as a result of artificial insemination. The juvenile court cited to this statute in its determination NH was Claimant's legal father.

An action for paternity and legitimation may be filed in the juvenile court or in any trial court with general jurisdiction. See Tenn. Stat. Ann. §§ 36-2-302(2), 36-2-307(a)(1) (2007). However, a legitimation decree from a juvenile court action filed after the alleged father's death is not acceptable evidence of paternity because the chancery court is the proper place to bring a paternity action for purposes of intestate succession. See POMS PR 0115.0478(I), GN 00306.635(A); Woods v. Fields, 798 S.W.2d 239, 241 (Tenn. Ct. App. 1990). A petition for legitimation can be filed until three years beyond the child's age of majority. See Tenn. Stat. Ann. § 36-2-306(a) (2007). Since Claimant is only eleven years old, Mother could still file an action in chancery court seeking an order of paternity and legitimation for purposes of intestate succession. However, a claimant attempting to establish that he is the child of an insured individual is not required to obtain a court determination of paternity. See 20 C.F.R. § 404.355(b)(2). Given Tennessee law, particularly Tenn. Code Ann. § 68-3-306, we believe a chancery court would reach the same conclusion as the juvenile court that NH was Claimant's legal father. Once the relationship of father and child has been established in such an action, "the child shall be entitled to inherit from the father as if born to the father in wedlock." Tenn. Stat. Ann. § 36-2-313(a) (2007). Therefore, we conclude Claimant can inherit from NH through intestate succession and is eligible for child's insurance benefits.

You also asked for an opinion on when Claimant would become eligible for child's insurance benefits. An applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. See 20 C.F.R. § 404.621(a)(2) (2007). Since Tenn. Code Ann. § 36-2-313(a) confers inheritance rights equivalent to those of a legitimate child, Claimant would have the same right to retroactive benefits as NH's biological child. See POMS PR 01120.047(A). Therefore, Claimant could receive benefits for up to six months prior to June 2007, the month in which his application was filed.

Entitlement to Mother's Insurance Benefits

A surviving divorced mother is entitled to mother's insurance benefits if she (1) is not married; (2) is not entitled to a surviving spouse's insurance benefit; (3) is not entitled to old-age insurance benefits; (4) has filed an application for mother's insurance benefits; and (5) has in her care the child of the insured person. See Act § 202(g)(1); 20 C.F.R. § 404.340 (2007). A "surviving divorced mother" means a woman who is divorced from an individual who has died and is the mother of his son or daughter. See Act § 216(d)(3). The child must be under the age of sixteen, the natural or adopted child of the surviving divorced mother and entitled to child's benefits on the record of the insured person. See 20 C.F.R. § 404.340(e) (2007).

Mother did not remarry after her divorce from NH. Mother is not entitled to widow's benefits as a surviving divorced spouse because she is less than sixty years old and was married to NH for less than ten years immediately preceding their divorce. See Act § 202(e)(1); 20 C.F.R. § 404.336(a)(2) and (c) (2007). Mother is forty-three years old and thus is not eligible for old-age insurance benefits. See Act § 202(a)(2); 20 C.F.R. § 404.310(a) (2007). Claimant is Mother's natural child, is eleven years old, lives in her care and is eligible to receive child's benefits on NH's account. Therefore, Mother is entitled to mother's benefits.

Mother's eligibility for mother's benefits begins with the first month covered by her application in which she met all the other requirements for entitlement. See 20 C.F.R. § 404.341(a) (2007). Since Mother's entitlement to mother's insurance benefits is dependent upon Claimant's eligibility for child's insurance benefits, she can only be entitled to benefits six months prior to June 2007, the month in which Claimant's application was filed. See 20 C.F.R. §§ 404.340(e), 404.621(a)(2).

CONCLUSION

We believe an SSA adjudicator could find Claimant entitled to inherit from NH through Tennessee intestacy law and therefore eligible for child's insurance benefits up to six months prior to the month in which his application was filed. We also believe an SSA adjudicator could find Mother entitled to mother's insurance benefits for the same period.

Mary A. S~
Regional Chief Counsel
By: Christopher G. H~
Assistant Regional Counsel

D. PR 06-311 Acceptability of Written Admissions to Rebut Presumption of Paternity under Tennessee Law Deceased Number Holder - Ralph - Claimant - Adrean

Date: September 8, 2006

1. Syllabus

In a Tennessee case evidence that the number holder and the claimant's mother divorced while the mother was pregnant combined with a marital dissolution agreement and divorce decree stating the couple was childless, a Numident showing the father of the claimant as "UNKNOWN", and a request for a name change for the child along with a supporting statement of non-paternity signed by the deceased is sufficient to rebut the presumption of paternity for a child born in wedlock.

2. Opinion

QUESTION

You requested a legal opinion as to whether DNA evidence is sufficient to rebut the Tennessee presumption of paternity for children born in wedlock.

ANSWER

For the reasons stated below, we believe that the evidence submitted in this case is sufficient under Tennessee law to rebut the presumption of paternity and, therefore, a Social Security Administration (SSA) adjudicator could find, the child, Adrean Y. G~ (Claimant), would not be entitled to benefits based on the account of the deceased number holder (NH), Ralph C~.

BACKGROUND

NH resided in Tennessee when he died on March XX, 2006. On May XX, 2006, an application for child's survivor benefits was filed by Denesa N. G~ (Mother) on behalf of the Claimant. NH and Mother were married in the State of Tennessee on September XX, 1985. The parties subsequently executed a Marital Dissolution Agreement while Mother was pregnant which stated that the parties had no children. Mother signed this agreement on August XX, 1990 and NH signed on September XX, 1990. Claimant was born on January XX, 1991 in Mayfield, Kentucky. A Divorce Decree was entered by the Chancery Court of Weakley County, Tennessee on April XX, 1991 incorporating the Marital Dissolution Agreement. The Divorce Decree makes no mention of either the Claimant or the issues of child custody and support.

Claimant's original social security card was issued on April XX, 1991 under the name Adrean Y. C~. The Numident listed her father as "unknown." Mother's legal name at the time of Claimant's birth was Denesa G~ C~ as evidenced by the Divorce Decree entered on April XX, 1991.

Thereafter, Mother began using the name Denesa N. G~. Mother subsequently filed a petition to change Claimant's name from Adrean Y. C~ to Adrean Y. G~. Mother listed the father's name as "unknown" and also obtained a sworn statement from NH disavowing paternity.

I, Ralph C~, have no claims on said child nor have I ever. I am not responsible for said child, nor will I ever be. I am not Adrean C~'s father. I am signing this, for the simple reason I want my name off a child that is not mine.

This petition was granted by the District Court of Hickman County, Kentucky on March XX, 1995. Claimant's name was changed on her social security card to Adrean Y. G~. Once again, the Numident listed her father as "unknown." Also, Claimant's birth certificate was amended on August XX, 1996 listing her as Adrean Y. G~ without any reference to the identity of her father.

NH subsequently applied for Disability Insurance Benefits (DIB) on June 15, 1999 and listed no children in his claim. NH was receiving DIB at the time of his death on March 23, 2006. NH's obituary did not list Claimant among his surviving children.

DISCUSSION

To qualify for child's benefits on the record of an individual entitled to old-age or disability benefits, a claimant must be that individual's child. See 20 C.F.R. § 404.350(a)(1). A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured person's personal property as his or her child under the intestacy laws of the state where the insured person was domiciled when he died. See 20 C.F.R. § 404.355. Because NH was domiciled in Tennessee, we would look to Tennessee law.

The natural or adopted child of NH would be entitled to a share of NH's intestate estate. Tenn. Code Ann. §§ 31-1-101, 31-2-104 (2006). A man is presumed to be the father of a child who is born either during the course of the marriage between the man and the child's mother or within 300 days after the marriage. Tenn. Code Ann. § 36-2-304(a)(1)(2006). Although divorce proceedings were in progress, NH was married to Mother at the time of Claimant's conception and birth. Therefore, Claimant is presumed to be the natural child of the NH.

SSA acknowledges the paternity presumptions applied by most states for children born in wedlock, but also recognizes that it is appropriate to question the natural legitimate status of such a child when there is evidence that casts doubt on paternity such as the omission of the putative father's name from the child's birth certificate. POMS 00306.020B(4). For a person born in wedlock, Tennessee has applied the common law presumption that a child born to a married couple is the child of the husband, no matter how soon the birth follows the marriage. See Jackson v. Thornton, 179 S.W. 384 (Tenn. 1915). In the past, this presumption could be rebutted only by clear, strong, convincing evidence that the husband was impotent or absent so as to have no access to the mother. Id.

However, this traditional presumption was eroded in a decision which held that this presumption could be rebutted by clear and convincing evidence other than non-access. See Shell v. Law, 935 S.W.2d 402, 406 (Tenn. 1996). The Tennessee Supreme Court has considered the case of a child born in wedlock who attempted to intervene in intestacy proceedings alleging that she was a child of a man other than the man married to her mother at the time of her birth. See In re Estate of Walton v. Young, 950 S.W.2d 956 (Tenn. 1997). In Young, the alleged illegitimate daughter was able to prove conclusively through a blood test that the man married to her mother at the time of her birth was not her father, but was unable to show that the decedent was her biological father by clear and convincing evidence. Id., at 958-960.

Thus, the presumption of paternity established by birth to a married couple can be rebutted by clear and convincing evidence. See In re Estate of Armstrong v. Manis, 859 S.W.2d 323, 327-328 (Tenn. Ct. App. 1993). In Manis, an individual born in wedlock was able to produce clear and convincing evidence to rebut the presumption that the man married to her mother at the time of her birth was her father and successfully pursued a claim on the intestate estate of her putative half-sister. Id.The burden on the child to rebut the presumption of legitimacy and prove the paternity of another man merged into one. Id. The evidence relied upon by the court included (1) statements by the mother's husband denying paternity; (2) the mother's failure to deny an allegation that her husband was not the father; (3) the treatment of the child by the mother's husband; (4) statements by the putative father acknowledging paternity; (5) the statements and behavior of other family members and acquaintances as well as (6) evidence of a physical resemblance. Id., at 324-327.

Here, we are not in possession of blood tests or evidence concerning the identity of a putative father. However, the statements and actions of both Mother and NH provide strong evidence to rebut the traditional presumption of paternity for a child born in wedlock. The Divorce Decree does not reference the issues of child support or custody or even acknowledge Claimant's birth. The Numident associated with Claimant's social security card has always listed her father as "unknown." The petition to change Claimant's last name to G~ lists her father as "unknown" and NH also voluntarily submitted a sworn statement denying that he was the Claimant's father. Claimant's amended birth certificate does not acknowledge the paternity of NH or any other individual. NH's application for DIB did not list Claimant as his minor child.

In Young, the court held that the evidence submitted to show a man other than her mother's husband was her biological father did not reach the "clear and convincing" standard. The court determined that the critical evidence was the testimony of the claimant's mother and that the probative value of claimant's testimony depended on her mother's credibility. The court found the mother's credibility was impeached because she had sworn under oath to the contrary. The court thus held that plaintiff failed to meet her burden to provide clear and convincing proof of paternity. See Young, 950 S.W.2d at 959-960.

In this case, Mother has apparently alleged to an SSA representative that she did not want NH to have contact with Claimant because he was a "child molester." No evidence has been presented to support this allegation. In addition, all of the documentary evidence submitted tends to rebut the traditional presumption that NH was Claimant's father. The only evidence available to support a presumption of paternity would be the testimony of Mother, whose credibility is suspect because she provided statements to the contrary in proceedings to change Claimant's last name.

CONCLUSION

Therefore, we conclude that, under Tennessee law, an SSA adjudicator could find the evidence presented is sufficient to rebut the presumption that NH is Claimant's father. Following such a conclusion, the evidence would be sufficient to establish that Claimant could not inherit from NH through intestacy under Tennessee law and that Claimant is not entitled to child's benefits. See 20 C.F.R. § 404.350(a)(1); see also 20 C.F.R. § 404.355.

Mary A. S~
Regional Chief Counsel
By: Simone D. P~
Assistant Regional Counsel

E. PR 06-057 Acceptability of DNA Evidence to Rebut Presumption of Paternity Under Tennessee Law Number Holder - Ira G~ Claimant - Karen G~

Date: January 31, 2006

1. Syllabus

Tennessee has applied the common law presumption that a child born to a married couple is the child of the husband. In the past, this presumption could be rebutted only by clear, strong, convincing evidence that the husband was impotent or absent so as to have no access to the mother. However, Tennessee now views these common law presumptions relating to paternity and legitimacy as rebuttable, and true parentage is the end that should be pursued by the courts in paternity actions.

Therefore, DNA testing showing a 0% probability that the number holder is the claimant's father and a 99.97% probability that another individual is the father is sufficient to overcome the presumption of paternity for a child born in wedlock.

2. Opinion

QUESTION

You requested a legal opinion as to whether DNA evidence is sufficient to rebut the Tennessee presumption of paternity for children born in wedlock.

ANSWER

For the reasons stated below, we believe that the DNA evidence submitted in this case is sufficient under Tennessee law to rebut the presumption of paternity and, therefore, the child, Karen G~ (Claimant), would not be entitled to benefits based on the account of the number holder (NH), Ira G~.

BACKGROUND

The NH resides in Tennessee and is a disabled beneficiary. His child(ren) may be entitled to child's insurance benefits. See 20 C.F.R. § 404.350 (2005). On March 11, 2005 with a protective filing date of January XX, 2002, an application for child's insurance benefits on the NH's record was filed for Claimant. Both the NH and Claimant reside in Tennessee. Claimant was born on July XX, 1987. At the time of Claimant's conception and birth her mother, Rose G~, was married to the NH. The couple divorced in April 1992. In August 2004, the Department of Family and Child Services (DFCS) removed Claimant from her mother's custody because of truancy and neglect. A representative from DFCS stated that the NH was listed as the father. Rose G~ informed DFCS that, while the NH has always given her support for Claimant, the NH was not Claimant's father. Accordingly, DFCS ordered DNA testing. DNA testing completed on December XX, 2004 showed a 0% probability that the NH is Claimant's father and a 99.97% probability that the NH's brother, Randy G~, is Claimant's father

DISCUSSION

Entitlement to Child's Insurance Benefits - In General

To qualify for child's insurance benefits (CIB) on the record of an individual entitled to old-age or disability benefits, a claimant must be that individual's child. 20 C.F.R. § 404.350(a)(1). While an individual's natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child can qualify as that individual's child, 20 C.F.R. § 404.354 (2005), only the provisions related to natural child status, see 20 C.F.R § 404.355 (2005), apply in this case. A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured person's personal property as his or her child under the intestacy laws of the state where the insured person was domiciled when the child applied for benefits or, if the insured person is deceased, when the insured person died. See 20 C.F.R. § 404.355. Because the NH is a resident of Tennessee, the question is whether a Tennessee court would consider Claimant to be the NH's child for purposes of intestate succession.

Tennessee Law Applied to this Claim

Tennessee law provides, for purposes of intestate succession, that a person born out of wedlock is a child of the father, if: (A) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or (B) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof. See Tenn. Code. Ann. § 31-2-105 (2005).

In regard to a person born in wedlock, Tennessee has applied the common law presumption that a child born to a married couple is the child of the husband, no matter how soon the birth follows the marriage. See Jackson v. Thornton, 179 S.W. 384 (Tenn. 1915); see also POMS GN 00306.020. In the past, this presumption could be rebutted only by clear, strong, convincing evidence that the husband was impotent or absent so as to have no access to the mother. Id. Here, the NH was married to Claimant's mother during Claimant's conception and birth. Therefore, Claimant was presumed to be the natural child of the NH.

However, Tennessee now views these common law presumptions relating to paternity and legitimacy as rebuttable, and true parentage is the end that should be pursued by the courts in paternity actions. See Shell v. Law, 935 S.W.2d 402, 408 (Tenn. 1996) (citing Tenn. Code Ann. §§ 24-7-112, 36-2-106); see also In re estate of Walton v. Young, 950 S.W. 2d 956 (Tenn. 1997) (Evidence that mother's husband was not child's biological father, . . . did not amount to such clear and convincing proof of paternity as would allow child to inherit from alleged father's intestate estate.). Thus, the presumption of paternity established by birth to a married couple can be rebutted by clear and convincing evidence, which includes genetic testing. SSA decides a claimant's paternity by using the standard of proof that the State would use as the basis for a determination of paternity. 20 C.F.R. § 404.355(b)(2). The Tennessee statute provides that a rebuttable presumption of the paternity of an individual is established by blood, genetic, or DNA testing showing a statistical probability of that individual at 95% or greater. Tenn. Code Ann. § 24-7-112(b)(2)(B). A nearly conclusive presumption of paternity is established if blood, genetic, or DNA testing show that the statistical probability of paternity is 99% or greater. Tenn. Code Ann. § 24-7-112(b)(2)(C).

Here, DNA testing showed the probability of the NH being Claimant's father was 0% and DNA testing on the NH's brother, Randy G~, showed a probability of paternity of 99.97%. Therefore, there was a conclusive presumption that Randy G~, not the NH, was Claimant's natural father. We have not received any evidence from Randy G~ to rebut the presumption of his paternity of Claimant. See Tenn. Code Ann. § 24-7-112(b)(2)(C)(i-iv). While the NH states that he has been paying child support and he would not stop being Claimant's father, we do not have any records of any intent or attempts to adopt Claimant. See Tenn. Code Ann. § 31-2-105(a)(1); see also 20 C.F.R. §§ 404.356, 404.359.

Further, the genetic testing was ordered by the DFCS in conformity with Tenn. Code Ann. § 24-7-112. Section 24-7-112 (a)(3) requires tests ordered in any civil proceeding to be conducted by an accredited laboratory. It therefore appears the DFCS regarded Orchid Genescreen as an accredited laboratory, and, as noted in the materials presented, Orchid Genescreen is accredited by the American Association of Blood Banks.

It is our opinion that the genetic test results provide clear and convincing evidence that NH is not Claimant's father. As such, the evidence is sufficient to establish that Claimant could not inherit from NH through intestacy under Tennessee law. Thus, Claimant is not entitled to child's insurance benefits. See 20 C.F.R. § 404.350(a)(1); see also 20 C.F.R. § 404.355.

CONCLUSION

Tennessee law recognizes the value of DNA tests of paternity beyond any presumption of paternity raised by the NH's marriage to Claimant's mother and would not hold the NH to be the father where the DNA tests here exclude him. Therefore, we conclude that, under Tennessee law, the NH is presumed not to be Claimant's father based on genetic test results. Thus, Claimant is not entitled to child's insurance benefits on the NH's account.

Mary A. S~
Regional Chief Counsel
By: Simone D. P~
Assistant Regional Counsel

F. PR 83-025 Applicability of Lord Mansfield Rule in Tennessee and Right of Adopted Child to Inherit from Natural Parent in Georgia

Date: August 25, 1983

1. Syllabus

FR LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- TENNESSEE

The Lord Mansfield Rule (i.e., neither a husband nor a wife may testify to support an allegation that a child born of the wife is not the natural child of the husband) is not applicable in Tennessee effective March 15, 1955. (Applicability of Lord Mansfield Rule in Tennessee and Right of Adopted Child to Inherit from Natural Parent in Georgia -- RAIV (W~, to AC, OPP, 08/25/83.)

OD 2110 -- TENN

FR ADOPTION AS AFFECTING INHERITANCE RIGHTS -- GEORGIA

In adoptions where the natural parents have surrendered their parental rights or a Court has terminated such rights, the right of inheritance from the natural parents to the child terminate. In cases where there is no such surrender or court determination, the child retains the right of inheritance from the natural parent. (Applicability of Lord Mansfield Rule in Tennessee and Right of Adopted Child to Inherit from Natural Parent in Georgia -- RAIV (W~), to AC, OPP, 08/25/83.§

OD 2600 -- GA

2. Opinion

In your memorandum of October 18, 1982, you asked for additional assistance in implementing two opinions from this office. First, you asked for the specific date in 1955 when the Lord Mansfield Rule was no longer applicable in paternity and inheritance proceedings in Tennessee. Second, you asked for a description of the criteria to be applied in Georgia in determining whether a natural parent of an adopted child terminated parental rights prior to that natural parent's death. This determination is relevant to the adopted child's right to inherit from the natural parent.

In response to your first inquiry, we have previously discussed Tennessee's historical reluctance to take a definitive position regarding the applicability of the Lord Mansfield Rule. (T~ Melvin IPB, RAIV [W~], 8/27/82.) In previous discussion, we also noted that the 1947 opinion from this office concluding that the Lord Mansfield Rule would be applicable in Tennessee was largely based upon Tennessee's silence on this issue and the existing majority rule at that time and not upon any express Tennessee authority However, the Tennessee legislature subsequent to that 1947 opinion enacted new paternity legislation which became effective March 15, 1955ú As a result of this legislation, the natural mother and alleged natural father were specifically rendered competent to testify on the issue of access in paternity proceedings. Tenn Code Ann. s36-227, Public Acts of Tennessee, 1955, Chapter 186, §6. This legislation clearly established that the Lord Mansfield Rule was not applicable on and after March 15, 1955 in paternity cases. If paternity is established under this legislation, one effect of such a determination is to render the child legitimate for purposes of inheriting from his father. Tenn. Code Ann. §36-234, Public Acts of Tennessee, 1955, chapter 186, §13. However, there is some question as to the constitutionality of that portion of Tenn. Code. Ann. §36-234 which bestows inheritance rights. Young v. Willis, 436 S.W. 2d 445 (Ct. of Appeals Tenn. 1968); Estate of K~ , 544 S.W. 2d 365 (Ct. of Appeals Tenn. 1975), cert. denied, 1976. Wholly aside from these paternity proceedings pursuant to statute, an illegitimate child subsequent to June 29, 1978 may inherit from and through his father if the illegitimate child can establish paternity in a court of law clear and convincing proof. (T~, Melvin, ~ , to IPB, RAIV [W~], 8/7/82.)

Given the historical reluctance of Tennessee to take a position on the Lord Mansfield Rule and the basis for our 1947 opinion regarding the Lord Mansfield Rule in Tennessee and the statutory and case law developments in paternity and inheritance determinations as discussed in the T~ opinion, we have found no authoritative basis to conclude that the Lord Mansfield Rule was ever applicable in Tennessee. However, it was not until the paternity legislation effective March 15, 1955 that Tennessee broke its silence and took a definitive position at least in paternity actions.

In response to your second inquiry regarding the inheritance rights of adopted children in Georgia subsequent to January 1, 1978, it should be noted that the adoption of a child with living parents is not permitted in Georgia unless the parent(s) or guardian(s) voluntarily and, in writing, surrender their respective rights to the child or such rights have been terminated by a court of competent jurisdiction. Ga. Code Ann. § §74-403. The general effect of the legislation effective January 1, 1978 was to render the adopted child a stranger to his natural parents and to limit his inheritance rights to his adopting parents and their relatives. However, the adopted child's inheritance rights were also extended to his natural parents in those limited circumstances where the parent died without having surrendered or terminated parental rights as required. Ga. Code Ann. §74-413(b). The limited circumstances where the surrender of such rights is not required for adoption fall into two general categories. The first category of circumstances is directed entirely to the natural parent and are as follows: (1) where the child has been abandoned by the parent; (2) where the parent cannot be found after diligent search; or, (3) where the parent is insane or otherwise incapacitated from surrendering such rights and the court is of the opinion adoption is for the best interest of the child. Ga. Code Ann. §74-405(a).

The second category involves the status of the petitioner for adoption. If the petitioner for adoption is the spouse of the other parent of the child, brother, sister, aunt, uncle of the child, son or daughter of either parent, surrender or termination of parental rights is not a prerequisite to adoption provided the parent has failed significantly for one year or longer prior to the filing of the petition for adoption to (1) communicate or make a bonafide effort to communicate with the child; or, (2) provide for the care and support of the child under the law or pursuant to judicial decree provided the court is of the opinion adoption is in the best interest of the child. Ga. Code Ann. §74-405(b).

Consequently, it is the opinion of this office that if the natural parent of the adopted child dies without having surrendered parental rights or such rights were not terminated by a court, and the child was adopted pursuant to the circumstances in either of the categories above described, the adopted child can inherit from the deceased parent.

G. PR 83-023 Child's Relationship to Deceased Holder; Period of Gestation

Date: August 12, 1983

1. Syllabus

FR PARENT AND CHILD - Tennessee

In Tennessee the courts may take judicial notice that the normal gestation period is 280 days and make a determination of fact based upon the testimony of a physician that it is not medically possible for the insured individual to be the father of a child born 359 days after his death. (Child's Relationship to Deceased Holder; Period of Gestation -- RAIV (W~), to Dir., SEPSC, O8/12/83.)

OD 2000 -- TENN

2. Opinion

You have requested a determination as to whether, under Tennessee law, the length of the gestation period will permit a finding that Natasha L. T~ is the natural, legitimate child of John H. T~.

The facts, as contained in the file are that the number holder, John H. T~, died June XX, 1981, in Tennessee. Natasha was born in Tennessee on June XX 1982, 359 days after Mr. T~ 's death. The birth certificate lists John Henry T~ and Wanda Lou C~ as the parents of Natasha. Mrs. T~ stated on July XX, 1982, that her original due date was April XX, 1982; in the same statement, Mrs. T~ denied sexual relations with any man since her husband's death.

Dr. George W. S~, Jr., a partner of Dr. Charles S. S~, the claimant's attending physician, stated in a letter dated July 26, 1982 that according to Dr. S~'s notes, the infant weighed seven pounds, three ounces at birth and appeared to be post mature. He stated that according to the patient's original date of her last menstrual period, June 26, 1981, her estimated date of confinement would have been April XX, 1982. Dr. S~ stated that he was not sure how accurate those dates were but, "even so, the husband (sic) death would have occurred on the third day of the menstrual period." Dr. S~ also stated that, "The longest human gestation I have ever personally observed in the past 20 years was one of 322 days or 46 weeks. I do not believe that it is medically possible for a gestation of 359 days, which is the length required in this case, to occur."

We have found no Tennessee statute prescribing a legal period of gestation in the absence of a statute, the mere fact that a child is born to a widow when more than the normal period of gestation has elapsed since her husband's death does not, as a matter of law, establish that the child-is illegitimate; whether such child is that of the deceased husband is determinable as an issue of fact. 10 Am. Jut. 2d Bastards §16.

The Tennessee Court of Appeals in Tippitt v. Formosa, 62 Tenn. App. 362, 462 S.W.2d 881 (1970), rejected the putative father's argument, in a paternity case, that neither the mean nor extreme of the period of gestation are so commonly and precisely known that the court may take judicial knowledge of them. The court in Tippitt, supra, stated that,

"Upon investigation, we have found no case dealing directly with the question whether our courts will take judicial knowledge of the period of gestation.

In 31A C.J.S. Evidence §79, p.88, it is said: 'Judicial notice will be taken of the ordinary period of gestation, and of the fact that such period is subject to many exceptions.'

In support of the foregoing statement, numerous authorities are cited covering many jurisdictions in more than a dozen states of the United States.

Our investigation indicates that the great weight of authority is to the effect that our courts can take judicial knowledge of the usual period of gestation as being approximately 280 days which, as the (lower) court correctly stated, is subject to variation, depending on the condition of the mother."

Thus, the Tennessee courts would take judicial notice of the usual period of gestation being 280 days subject to variation depending on the condition of the mother. In this claim, the alleged gestation period is 359 days which is 79 days in excess of the usual gestation period. Dr. S~ was unable to verify the claimant's dates and observed that, if plaintiff's dates were accepted, conception would have occurred on the third day of claimant's menstrual period. Inasmuch as there is no opposite statute or controlling legal presumption favoring the claimant's assertions, the conclusion must be based on a factual determination. In our opinion, Dr. S~'s conclusion, based on access to the claimant's medical records and his own 20 years of obstetrical experience, is persuasive in determining the factual issue. We concur in Dr. S~'s conclusion that claimant's allegation of a 359-day period of gestation is not credible; Dr. S~'s did not believe a gestation period of such length was medically possible.

Based on the above factual determination it is our opinion that you would be warranted to find Natasha is not a child of the deceased number holder, John H. T~, within the meaning of the Social Security Act, as amended.

H. PR 82-044 Applicability of the Lord Mansfield Rule in the State of Tennessee, Melvin

1. Syllabus

In Tennessee there is a strong presumption of legitimacy of a child born to a married mother and such presumption of legitimacy may be overcome by clear, cogent and convincing testimony that there was no cohabitation between the husband and wife during the period when the child, in the course of nature, must have been conceived. In rebutting this presumption, the married mother and her husband or other alleged father may testify as to non-access in a paternity proceeding. Frazier v. McFerren, 402 S.W. 2d 467 (1964), TENN. CODE ANN. § 36-227. A natural parent may give such testimony for inheritance purposes as well. Robinson v. Tabb, 568 S.W.2d 835 (1978). Consequently, the Lord Mansfield Rule is not applied in Tennessee in paternity or inheritance proceedings.

(T~, Melvin,

to IPB, RA IV (W~) 8/27/82).

OD 2100 - Tenn.

2. Opinion

In your memorandum you asked whether the Lord Mansfield Rule was being applied by the courts of Tennessee. You also referred to a memorandum from the acting Director of the South- eastern Program Service Center describing a particular fact situation raising the issue of the application of the Lord Mansfield Rule in Tennessee.

Katie T~ married Melvin T~ (the insured) on March XX, 1970 in Memphis, Tennessee. Katie and the insured separated in 1974 or 1975, but they continued to see one another and have sexual relations. The insured died on June XX, 1981. The insured and Katie were validly married but continued to be separated at the time of the insured's death. During their separation, Deangelo T~ was born to Katie on December XX, 1976. The father's name does not appear on Deangelo's birth certificate. Katie told the Tennessee Department of Human Services that John H~ was Deangelo's father but later told a Social Security representative she had lied to the Tennessee Department of Human Services. She stated the insured was Deangelo's father. On August XX, 1981, Tameka R. T~ was born to Katie. The insured's name appears on this child's birth certificate as the father. Katie also filed a claim for child's benefits on the insured's account on behalf of Tameka alleging the deceased insured is her father.

The courts of Tennessee have never expressly held the Lord Mansfield Rule to apply neither have they expressly held it did not apply. In Gower v. State, 290 S.W. 978 (1927) the Tennessee Supreme Court discussed the Lord Mansfield Rule and the ongoing controversy in the law as to whether the testimony of the husband or of the wife could be admitted to show that a child born in wedlock was illegitimate. However, the court specifically refused to decide the applicability of the Lord Mansfield Rule in Tennessee, and otherwise disposed of this case without deciding that issue. Again, in 1945 in State ex rel. Hardest, et al. v. Sparks, et al., 190 S.W.2d 302 (1945) the Court of Appeals of Tennessee discussed the Lord Mansfield Rule, and, again, the court refused to decide whether this rule was applicable in Tennessee and otherwise disposed of the case. Although evasive on the applicability of the Lord Mansfield Rule in Tennessee, the courts in these cases made it abundantly clear that the presumption of legitimacy which attaches to a child born in wedlock can be rebutted only by clear, strong, and convincing evidence that there was no cohabitation between husband and wife during the period when the child in the course of nature must have been conceived.

In 1947 this office opined that if forced to decide the applicability of the Lord Mansfield Rule, the Tennessee Supreme Court would hold the Lord Mansfield Rule was applicable in Tennessee. (T~, John W~ -- ~ -- RA IV (C~) to F.O. Chattanooga, Tenn.) This opinion was largely influenced by the fact that the Lord Mansfield Rule was applicable in the majority of states at that time. Although of the view Tennessee courts would bar testimony of the husband or the wife on the issue of non-access, this office's subsequent opinions sought to find facts other than the testimony of the husband or wife as a basis for determining the status of children born during wedlock. (H~, Arthur B., -- ~ -- RA III (C~) to R. Rep. 6/XX/52), B~ , Willis, -- TA IV to R. Rep. 3/XX/50). In these opinions we held the law of Tennessee to be that the presumption of legitimacy attaching to a child conceived in wedlock can only be rebutted by clear, cogent and convincing testimony. We still so hold. We have also noted that once bona fide divorce proceedings are instituted, no presumption of legitimacy will attach to any child conceived subsequent thereto where such proceedings result in a final divorce decree. (K~ , Tavner M RA IV (C~) to DO, Cape Girardsan, Mo., 10/27/69), (W~~ Arlie C. -- ~ -- RA IV (C~) to R. Rep. OASI 12/19/62), (Jesse S. T~ -- ~ -- RA IV (K~) to RR:RSI:Chicago P.C., 8/XX/72).

In 1955 the Tennessee legislature enacted new legislation which provided that the mother and the alleged father were competent to testify in paternity proceedings. Specifically, if the mother was married, both she and her husband were competent to testify as to non-access in the paternity proceeding. TENN. CODE ANN. § 36-227. In construing TENN. CODE ANN. § 36-227 and paternity actions generally, the court in Frazier v. McFerren, 402 S.W. 2d 467 (1964) stated the legislative purpose was to provide support for all children proven to be illegitimate including those born out of wedlock and those born to a mother who was married but whose husband was proven not to be the father of the child in question. In Frazier v. Ferren, supra, the married mother brought a paternity action against her employer. The mother and her husband were separated in 1960 and continued to remain separated. Pursuant to TENN. CODE ANN. § 36-227, the husband testified he had not visited or had intercourse with his wife following their separation, and the mother testified that her employer and not her husband was the father of the subject child and further described the circumstances which led to the conception of the subject child. The child was born in 1962, two years after the separation. The court concluded that the presumption of legitimacy had been rebutted and affirmed the lower court ruling in favor of the mother.

Consequently, in Tennessee there is a presumption of legitimacy of a child born to a married mother, but this presumption may be overcome by clear, cogent and convincing testimony that there was no cohabitation between husband and wife during the period when the child must have been conceived. Frazier v. McFerren, supra. Gower v. State, supra. With the enactment of TENN. CODE ANN. § 36-227 in 1955, both the mother and the alleged father were competent to testify as to non-access in paternity actions. Therefore, the Lord Mansfield Rule has specifically been rendered inapplicable in paternity actions in Tennessee since 1955. Prior to that date the courts refused to decide the issue of the applicability of the Lord Mansfield Rule in Tennessee.

For purposes of intestate succession under Tennessee law, the relationship of parent and child must be established to enable succession by, through, or from an alleged parent. TENN. CODE ANN. § 31-206. A child born out of wedlock is a child of the mother. The child is also a child of the father provided (1) the natural parents participated in a marriage ceremony even though it was void or (2) paternity is established by an adjudication before the father's death or is established thereafter by clear and convincing proof. TENN. CODE ANN. § 31-206 (2). Further, illegitimate children whose fathers were determined by adjudication in a paternity proceeding prior to the fathers' death could inherit from their father. TENN. CODE ANN. § 36-234. In a decision having prospective application only subsequent to June 29, 1978, except for cases pending in the courts of Tennessee on that date, the Supreme Court of Tennessee in Allen v. Harvey, 568 S.W. 2d 829 (1978) concluded the policy of TENN. CODE ANN. § 36-234 was to permit the illegitimate child to inherit from his father if the father-child relationship was clearly established. Allen v. Harvey, supra. held that a child born out of wedlock and irrespective of any existing adjudication of paternity may inherit from and through his father if paternity is established by clear and convincing proof and provided rights of inheritance have not finally vested. In so holding, this court expressly stated that a child born out of wedlock must meet a stricter or higher standard of proof of paternity than is required for a child born within wedlock. Allen v. Harvey, supra. at p. 835.

Whether the natural mother or the natural father would be permitted to offer evidence which would render the child illegitimate for inheritance purposes is not specifically addressed in Allen v. Harvey, supra. or subsequent Tennessee cases. It is implicit in Allen that such testimony would be permitted. However, in a case decided by the Supreme Court of Tennessee on the same day as the Allen case and having cited Allen for the proposition that paternity, for inheritance purposes may be established only by clear and convincing evidence, the court permitted the mother of two children who were seeking an intestate share of their alleged father's estate to testify that she and the alleged father of these children lived together but were not married when the children were conceived and born. Robinson v. Tabb, 568 S.W.2d 835 (1978). Consequently, it is our opinion that for purposes of inheritance, the Lord Mansfield Rule is not applicable in Tennessee.

In summary, it is the opinion of this office that the Lord Mansfield Rule is not applicable in paternity proceedings in Tennessee. An unmarried mother as well as the alleged father of her child may testify on the question of access and non- access in a paternity action, and the mother must establish by a preponderance of the evidence the identity of the father of her child. Frazier v. McFerren, supra. If the mother was married at the time the child was born, the child is presumed to be legitimate. However, this presumption of legitimacy may be rebutted by clear, cogent, and convincing testimony that there was no cohabitation between the husband and wife during the period when the child, in the course of nature, must have been conceived. Both the mother and her husband are competent to testify as to non-access for purposes of rebutting this presumption of legitimacy.

When paternity is at issue for purposes of inheritance, a child born out of wedlock may inherit from and though his father in Tennessee provided paternity is established by clear and convincing evidence and provided the rights of inheritance have not finally vested. The evidence which may be considered in meeting the clear and convincing standard may also include the testimony of the natural parents even though the effect of such evidence is to render the child illegitimate.

Consequently, it is our opinion that the Lord Mansfield Rule is not applicable in Tennessee and the Claims Manual and or POMS should be amended accordingly.


Footnotes:

[1]

. All references to the C.F.R. are to the 2017 versions.

[2]

. All references to Tennessee statutes are to the 2017 version.

[3]

. Section 24-7-112 requires genetic tests to be of a type generally acknowledged as reliable and conducted by an accredited laboratory.

[4]

. The information provided does not indicate the section of the Act under which Brother qualified for benefits as NH’s child. Nevertheless, regardless of which section of the Act the agency used to find Brother was NH’s child, Brother would be NH’s child for purposes of evaluating Claimant’s status as NH’s child based on the DNA test results under Tennessee intestacy law. If Brother qualified as NH’s child under section 216(h)(2)(A) of the Act, then the agency has already established that Brother could inherit from NH under Tennessee intestacy law. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); POMS GN 00306.001(C)(1)(a), (C)(2)(a). If, on the other hand, Brother qualified as NH’s child under sections 216(h)(2)(B) or 216(h)(3) of the Act, then treating Brother as NH’s child under Tennessee intestacy law is still proper under Social Security Ruling (SSR) 06-02p. SSR 06-02p applies when the agency evaluates DNA tests showing a claimant and a known child of an insured individual are siblings and the known child did not qualify as the insured individual’s child under the state law analysis section 216(h)(2)(A) of the Act requires. In those cases, SSR 06-02p directs the agency’s adjudicators to assume the known child is a child of the insured individual under the applicable state intestacy law when determining whether the claimant qualifies as a child of the insured individual under section 216(h)(2)(A) of the Act. See PR 01115.012A (PR 13-051 Mar. 1, 2013).

[5]

. The DNA test report confirms that the testing was performed by American Association of Blood Banks accredited lab, which the Department of Health and Human Services recognizes as a reliable accreditation body. See Accreditation of Genetic Testing Labs, U.S. Dep’t of Health & Human Servs., http://www.acf.hhs.gov/programs/cse/pol/IM/1997/im-9703.htm (last visited Nov. 1, 2017).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501010047
PR 01010.047 - Tennessee - 12/15/2017
Batch run: 12/15/2017
Rev:12/15/2017