We are responding to your request for our opinion as to whether inheritance rights
under Arkansas law are prospective only for a child born out of wedlock. The issue
to be determined is the date from which Brandon B. A~, the child claimant, may be
awarded child's benefits based upon the record of his biological father, Lee R. G~.
For the reasons stated below, we are of the opinion that Brandon can be awarded benefits
prospectively from the date of the DNA test establishing paternity, but not retroactively
to the date of birth.
Mr. G~, the number holder, is currently receiving disability benefits and is domiciled
in Arkansas. Brandon was born in Arkansas on July 16, 1989, to Deborah (T.) A~. Ms.
A~ and Mr. G~ were never married, and Mr. G~ was not named on Brandon's birth certificate.
On June 6, 2000, an administrative order by the Arkansas Office of Child Support Enforcement
required Mr. G~ to submit to genetic testing to determine the paternity of Brandon.
The paternity evaluation dated July 19, 2000 showed a probability of paternity of
99.99 percent. Furthermore, Mr. G~ provided a written statement to the Social Security
Administration (SSA) acknowledging Brandon as his child. SSA received the undated
document on October 3, 2000. The Agency used the written acknowledgment of paternity
provided by Mr. G~ to adjudicate the claim.
Under section 216(h)(3)(B) of the Act, a written acknowledgment that a child applicant
is a son (or daughter) is sufficient to establish that the applicant is a "child"
of the number holder irrespective of intestate succession. 42 U.S.C. § 416(h)(3)(B);
20 C.F.R. § 355(a)(3)(2000)./ Therefore, Brandon was awarded benefits as of October
2000, the month the number holder's statement was received by SSA. Now you have requested
to know if the claimant can be awarded benefits retroactively under section 216(h)(2)(A)
of the Act.
Section 216(h)(2)(A) of the Act provides that in determining whether an applicant
is the child or parent of an insured individual, the Commissioner of Social Security
shall apply such law as would be applied in determining the devolution of intestate
personal property by the courts of the state in which such insured individual was
domiciled at the time of the application. 42 U.S.C. § 416(h)(2)(A). Since Mr. G~ was
domiciled in Arkansas at the time of the claimant's application, we must apply Arkansas
law. Agency regulations provide that if applicable state inheritance laws require
a court determination of paternity, SSA will not require that a claimant actually
obtain such a determination, but will decide the child's paternity by using the standard
of proof that the state court would use as the basis for a determination of paternity.
20 C.F.R. § 404.355(b)(2) (2000). Therefore, SSA can determine Brandon's relationship
to Mr. G~ without an actual court determination of paternity.
Arkansas inheritance law provides that an illegitimate child or his descendants may
inherit real or personal property from her father provided the child or descendant's
have established paternity, and that right is limited to a 180 day period after the
putative father's death. Ark. Code Ann. § 28-9-209(d)(1)-(6) (1999) (A.C.A.). There
is no substantive dispute regarding Brandon's paternity. Pursuant to an administrative
order from the Arkansas Office of Child Support Enforcement, Mr. G~ underwent paternity
testing. Micro Diagnostics, the DNA laboratory, was selected by the State as a "duly
qualified agent" to conduct paternity testing. A.C.A. § 9-10-108 (1999). Therefore,
there is no DNA laboratory accreditation issue to consider. 42 U.S.C. § 263a(a).
The DNA lab report found that there was a 99.99 percent probability that Mr. G~ was
the biological father of Brandon A~. Under Arkansas law, the results of a paternity
test establishing a 95 percent or more probability of paternity, along with some corroborating
testimony from the mother regarding "access" during the conception period, "shall
constitute a prima facie case of establishment of paternity". A.C.A. § 9-10-108(a)(6)
(1999). While the putative father is living (as in this case), the legal standard
is by a preponderance of the evidence. See Bain v. State, 937 S.W.2d 670, 674 (Ark. Ct. App. 1997); Erwin L.D. v. Myla Jean L., 847 S.W.2d 45, 47 (Ark. Ct. App. 1993). After the prima facie case is met, the burden
of proof then shifts to the putative father to rebut the evidence. Id.
While there is no statement from Brandon's mother regarding access during conception,
we believe the mother's signed application for benefits on behalf of Brandon and her
cooperation with paternity testing constitutes an implied statement of access. Therefore,
the DNA test, the application for benefits, and Mr. G~' written admission of paternity
constitutes prima facie proof of paternity that has not been rebutted. As previously indicated in our opinion,
SSA used the number holder's written admission to establish that Brandon was his child
and pursuant to section 216 (h)(3)(B) of the Act. Brandon was consequently awarded
child's benefits. 42 U.SC. § 416(h)(3)(B); 20 C.F.R. §§ 404.354, 404.355. According
to your request, benefits were paid effective as of October 2000, the month that the
number holder acknowledged his paternity in a signed statement.
We believe Brandon can be paid benefits as of July 19, 2000, the date of the DNA test.
You recognized that Brandon is the son of Mr. G~ for purposes of inheritance rights,
and that he may be entitled to benefits before the date of the father's written acknowledgement
pursuant to section 216 (h)(2)(A) of the Act. You asked the earliest date from which
Brandon may be paid Social Security benefits as Mr. G~' child.
The Program Operations Manual System (POMS) provides that if an act or event (such
as the DNA lab report in this case) confers inheritance rights under applicable state
law, but does not legitimate/ a child, the act or event generally has effect only
from the date of such act or event. See POMS GN 00306.055(A)(3), 00306.075(A), 00306.080. The POMS is consistent with Agency policy, which
provides that an act that gives inheritance rights is generally effective only from
the date of that act, while an act that legitimates generally is effective retroactive
to the birth of the child. See Social Security Ruling 85-17. Although Arkansas law allows an illegitimate child to
inherit from his father once paternity has been established, the law does not legitimate
the child. A.C.A. § 28-9-209(d). Therefore, Brandon obtained inheritance rights on
July 19, 2000, the date of the DNA test report.
Social Security regulations provide that a claimant who files an application for benefits
before the first month he meets the requirements for entitlement may receive benefits
from the first month he meets all the requirements. 20 C.F.R. § 404.620(a)(1) (2000).
Therefore, benefits should relate back to July 19, 2000. 42 U.S.C. § 416(h)(2)(A);
Tina M. W~
Acting Regional Chief Counsel
Thomas C. S~
Assistant Regional Counsel