Basic (01-06)

PR 01020.005 Arkansas

A. PR 02-097 Effective Date for Inheritance Rights for Biological Father (NH Lee R. G~, SSN ~) Under Arkansas State Law - REPLY

DATE: June 7, 2002


In a life case, inheritance rights for a child born out of wedlock are only prospective from the date of the act that established the parent-child relationship under Arkansas law.


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); SSR 85-17.

Tina M. W~
Acting Regional Chief Counsel

Thomas C. S~
Assistant Regional Counsel

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PR 01020.005 - Arkansas - 01/09/2006
Batch run: 11/29/2012