C~’s mother, C2~, applied for surviving child’s insurance benefits on the account
of B~, a deceased numberholder (NH). You asked whether C~ is entitled to benefits
on NH’s earnings record. We conclude that there is sufficient evidence to establish
that NH is C~’s father under Indiana intestacy laws, thereby establishing a parent-child
relationship under Section 216(h)(2) of the Social Security Act.
NH was domiciled in Indiana when he died on June XX, 2014. The minor claimant, C~,
was born on May XX, 2002, to C2~. Although the birth certificate was not provided,
C2~ indicated that the name of C~’s father is blank on his birth certificate and she
was never married to NH.
In October 2015, C2~ applied on C~’s behalf for surviving child’s insurance benefits
on NH’s earnings record. In support, the following evidence was submitted: (1) a letter
from C2~; (2) a letter from T~, NH’s brother; and (3) DNA test results comparing C~’s
DNA with that of T~ and C3~, NH’s brothers and C~’s alleged uncles.
C2~’s letter states that NH is C~’s father. According to C2~, she began dating NH
in July 2001, NH helped organize a baby shower for her upon learning she was pregnant,
although she was not living with him at the time, and NH visited her in the hospital
once after the child’s birth, but he did not sign the birth certificate. Approximately
two months after C~ was born, NH went to jail for two years. Upon his release in 2004,
C2~ and NH were engaged and lived together for a short period, but later separated.
T~’s letter states that NH is C~’s father. According to T~, NH and C2~ dated for a
year before C~ was born, although they did not live together at the time, and were
engaged for six months after NH was released from jail. In addition, T~ states that
NH helped organize a baby shower for C2~, NH had C~’s name tattooed on his neck, and
NH “always knew [C~] was his son.”
The DNA report, dated November XX, 2015, indicates that the “probability of relatedness”
between C~ and NH’s brothers, T~ and C3~, is 99.6% and the likelihood that the alleged
uncles are C~’s biological relatives is 251 to 1.
The Social Security Act provides for the payment of surviving child’s insurance benefits
to the child of an insured wage earner who is deceased. 42 U.S.C. § 402(d)(1). For
the purpose of child’s benefits, a claimant is considered the insured individual’s
child if he would inherit from the insured individual. 42 U.S.C. § 416(h)(2)(A); 20
C.F.R. § 404.355(a)(1); see also POMS GN 00306.55(A). If the insured individual is deceased, the Agency applies the intestate succession
laws of the State where the individual was domiciled at the time of his death. 42
U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1); see also POMS GN 00306.001(C)(2)(a).
Because NH was domiciled in Indiana at the time of his death, Indiana intestacy law
governs whether C~ could inherit from NH as his child. Under Indiana law, a child
may inherit from a parent regardless of the parent’s marital status. See Ind. Code Ann. § 29-1-2-7(b). In addition, a child born out of wedlock can posthumously
establish the right to inherit from the alleged father by filing a paternity suit
within five months of the father’s death. Ind. Code Ann. § 29-1-2-7(b)(2)(B). However,
the Agency does not require a claimant to bring a parentage action or establish paternity
prior to the insured wage earner’s death; rather, the Agency will decide the paternity
issue under the standard of proof that the State court would use in making the paternity
determination. 20 C.F.R. § 404.355(b)(2).
Indiana law provides that a presumption of paternity exists if, inter alia, a genetic test indicates that a man is the child’s biological father with at least
a 99% probability. Ind. Code Ann. § 31-14-7-1(3); see also POMS GN 00306.485(C). However, Indiana law does not contemplate a presumption of paternity when the
DNA tests are based on the siblings of the alleged father. Therefore, this presumption
of paternity does not apply.
Nonetheless, Indiana law permits a finding of paternity in the absence of a statutory
presumption where paternity is established by a preponderance of the evidence. See Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. Ct. App. 1995) (“Paternity actions are civil proceedings
and the alleged father must be proved to be such by a preponderance of the evidence.”).
A mother’s testimony may be received in evidence to establish paternity, but a judgment
cannot be made based on such testimony alone; the testimony must be supported by corroborative
evidence or circumstances. Inn. Code Ann. § 29-1-2-7(c); see also First Student, Inc. v. Estate of Meece, 849 N.E.2d 1156, 1164 (Ind. Ct. App. 2006) (intestacy statute “requir[es] that the
mother’s testimony be corroborated by other evidence or circumstances”).
Here, C2~’s statement that NH is C~’s father is corroborated by the statement of T~,
NH’s brother. In addition, while the DNA test results do not create a presumption
of paternity, they establish a significant probability that NH’s brothers are biologically
related to C~ and serve as additional evidence in support of C2~’s statement. Under the preponderance of the evidence standard, we believe that Indiana courts
would find that NH was C~’s biological father and that C~ could inherit from NH intestate.
See In re Paternity of I.B., 972 N.E.2d 985, at *2 (Ind. Ct. App. 2012) (Table) (“In a paternity action, the
testimony of the mother regarding an act of sexual intercourse with the defendant,
coupled with the probability of pregnancy, is sufficient to support a determination
that the defendant is the father of the child.”) (citing First Student, Inc., 849
N.E.2d at 1164). Therefore, we conclude that C~ is entitled to surviving child’s insurance
benefits on NH’s account.
For the foregoing reasons, we conclude that the DNA test results and other evidence
provided by C2~ satisfy the preponderance of the evidence standard under Indiana law
to establish that C~ could inherit from NH intestate. Thus, you could reasonably find
that C~ is NH’s child for purposes of surviving child’s insurance benefits.
Acting Regional Chief Counsel
Region V, Chicago
Assistant Regional Counsel