TN 47 (07-16)

PR 01105.019 Kansas

A. PR 16-128 Use of Grandparent Deoxyribonucleic Acid (DNA) Testing and Resulting Probability of Grandparentage to Establish Paternity in KS

DATE: May 3, 2016

1. Syllabus

The number holder (NH) was domiciled in Kansas when he died; therefore, Kansas intestacy law applies. Kansas intestacy statutes provide that, if a decedent has a surviving child or children and no spouse, all his or her property shall pass to the surviving child. Kansas statutes further provide that children for purposes of inheritance issues means biological children, including a posthumous child; children adopted by law; and children whose parentage is or has been determined by the Kansas Parentage Act or prior law.

In this case, we believe that the results of the DNA test, in conjunction with the other evidence provided, would be sufficient to establish a rebuttable presumption of paternity. Specifically, the DNA test results from samples taken from Claimant and his alleged paternal grandparents indicate that the probability of grandparentage is 99.99 percent. The Claimant meets the requirements for entitlement under section 216(h)(2)(A) and is entitled to child’s benefits on the NH’s record. 

2. Opinion

ISSUES PRESENTED

You have asked for advice as to whether C~, an illegitimate child, can establish paternity and thus be entitled to child’s benefits on the record of R~, a deceased number holder (NH), based on the results of DNA testing of C~ and his alleged paternal grandparents.

BACKGROUND INFORMATION

The memorandum and documentation you sent with your request indicate that the NH died on December XX, 2013, while domiciled in Kansas. On July XX, 2014, J~ filed an application for surviving child and lump-sum death benefits on the NH’s record, on behalf of her son, C~. The protective filing date was June XX, 2014. The memorandum states that C~ was born on April XX, 2014, and J~ alleged that the deceased NH was C~’s biological father. J~ was listed on the birth certificate as C~’s mother, but she did not list a father on the birth certificate. The memorandum indicates that the NH and J~ were never married; however, they were living together when the NH died. The application was denied on August XX, 2014, due to lack of evidence to prove the relationship of C~ to the NH.

On May XX, 2015, J~ filed a new application for C~ to receive surviving child benefits, with a protective filing date of February XX, 2015. J~ presented genetic testing dated May XX, 2014, completed by Genetic Testing Laboratories, which tested the paternal grandfather and C~, with statistical results stating with 95.0 percent confidence that their DNA matched.

The NH’s obituary stated that he was survived by his father and mother; his Companion, J~; two daughters; and a son, all of the home, and a “baby on the way.”

The NH’s parents completed notarized affidavits dated April XX, 2015, stating that the NH was their only son and that they were the paternal grandparents of C~. They stated that their son died prior to C~’s death, and that, to the best of their knowledge, their son was C~’s biological father. Notarized affidavits dated October XX, 2015, completed by J~’s father and stepmother, were also submitted. They stated that the NH died prior to C~’s birth and that they were C~’s maternal grandparents. Finally, they stated that, to the best of their knowledge and belief, the NH was C~’s biological father. The memorandum also states that the NH did not have any biological brothers who could have fathered the child.

Subsequently, J~ submitted a second DNA test from Laboratory Corporation of America dated February XX, 2016, which tested the paternal grandparents and C~. Results stated that the probability of grandparentage was 99.99 percent, as compared to untested, unrelated persons of the Caucasian population. It stated that the study “support[ed] the assertion that a son of the grandparents could be the biological father of the child.”

We requested additional information from the Field Office. They provided J~’s maternity records dated November XX, 2013, in which she listed “R~” as her spouse/significant other and emergency contact. She also signed a medical release so he could access her medical records. J~ provided a February XX, 2015 letter from her attorney explaining that the hospital would not allow J~ to list the NH as the father on the birth certificate because he was not present during the birth. The letter alleges that the NH is C~’s father.

ANALYSIS

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child’s insurance benefits. This section provides that every child (as defined in section 216(e) of the Act) of an individual who dies fully insured is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Social Security Act § 202(d)(1). A child who is “legitimate” or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

An “illegitimate” child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured’s death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, prior to his death: (a) acknowledged in writing the child as his child; (b) been decreed by a court to be the child’s parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Section 202(d)(3) of the Act provides that any child who meets the tests in sections 216(h)(2) or (h)(3) “shall be deemed to be the legitimate child of such individual.”

In this case, C~ cannot meet any of the above requirements. C~, who was born posthumously, never lived with the NH, never received support from the NH, and was never adjudicated as the child of the NH. The NH and J~ were never married, and the NH never acknowledged in writing that C~ was his child.

An “illegitimate” child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) of the Act if the child could inherit personal property under “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 his death . . . .” Social Security Act § 216(h)(2)(A); see also 20 C.F.R. § 404.355(a)(1); Program Operations Manual System (POMS) GN 00306.055. An illegitimate child who meets the standard that Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). If the insured is deceased, the Social Security Administration applies the law on inheritance rights where the insured had his permanent home when he died. See 20 C.F.R. § 404.355(b)(1). In this case, you have indicated that the NH was domiciled in Kansas when he died; therefore, Kansas intestacy law applies.

Kansas intestacy statutes provide that, if a decedent has a surviving child or children and no spouse, all his or her property shall pass to the surviving child. See Kan. Stat. Ann § 59-506. Kansas statutes further provide that “children” for purposes of inheritance issues means “biological children, including a posthumous child; children adopted by law; and children whose parentage is or has been determined by the Kansas Parentage Act or prior law.” See Kan. Stat. Ann. § 59-501.

The Kansas Parentage Act states that a man is presumed to be the father of a child, if, among other things, genetic test results indicate a probability 97 percent or greater that the man is the father of the child. See Kan. Stat. Ann § 23-2208(a)(5). Kansas statutes further provide that the presumption of paternity can only be rebutted by clear and convincing evidence, by a court decree establishing paternity of the child by another man, or if two or more conflicting presumptions arise, which the court must resolve. See Kan. Stat. Ann § 23-2208(b). The Kansas Supreme Court has defined “clear and convincing evidence” as evidence that is “sufficient to establish that the truth of the facts asserted is ‘highly probable.’” See In re B.D.-Y., 187 P.3d 594, 601 (Kan. 2008); see also In re Dennis, 188 P.3d 1, 14 (Kan. 2008); In re X.D., 191 P.3d 363 (Table), 2008 WL 4068183, at *3 (Kan. Ct. App. 2008). The clear and convincing evidence standard is an intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt. See In re B.D.-Y., 187 P.3d at 598.

Kansas statutory laws do not address a situation where the grandparents—and not the alleged father—provided the DNA samples. Although no Kansas case specifically addresses the use of grandparent DNA tests in paternity actions, Kansas courts generally admit bloods tests to establish paternity. See Kan. Stat. Ann § 23-2208 (listing genetic testing as one of six ways to establish a rebuttable presumption of paternity under Kansas law); Hausner v. Blackman, 662 P.2d 1183, 1189 (Kan. 1983) (holding that scientifically reliable evidence of alleged child’s father, meeting relative legal evidentiary standards, is admissible in paternity actions, and admitting blood test results). However, while blood tests are generally admissible in paternity proceedings, the Kansas Court of Appeals reversed a lower court decision because the lower court made a decision of paternity based solely on DNA tests, without regard to other factors relevant to the issue of the child’s paternity. See Ferguson v. Winston, 996 P. 2d 841, 845 (Kan. Ct. App. 2000). In Ferguson, the Court of Appeals noted that, while DNA evidence is “very strong,” there was no evidence to warrant finding that it is conclusive. Instead, the Court noted that, at the very least, the court adjudicating paternity was required to consider the evidence that may contradict the DNA evidence before making a decision on paternity. Id.

We believe that the results of the DNA test in this case, in conjunction with the other evidence provided, would be sufficient to establish a rebuttable presumption of paternity. Specifically, the DNA test results from samples taken from C~ and his alleged paternal grandparents indicate that the probability of grandparentage is 99.99 percent, as compared to untested, unrelated persons of the Caucasian population. The results state that the study supports the assertion that a son of the grandparents could be the biological father of the child. The evidence provided indicates that the NH was the only biological son of the alleged paternal grandparents.

In addition, J~ and the NH were living together when the NH died. The NH’s obituary stated that the NH was survived by “a baby on the way.” The alleged paternal grandparents, as well as J~’s father and stepmother, submitted notarized affidavits stating that, to the best of their knowledge and belief, the NH was C~’s father. The alleged paternal grandparents also confirmed that the NH was their only biological son. Finally, J~’s medical records dated one month before the NH’s death list the NH as the spouse/significant other and emergency contact, and she signed a release to allow him to access her medical records.

Although J~ did not include the NH’s name on C~’s birth certificate, the statement from J~s attorney explains that the hospital would not allow her to list the NH as the father on the birth certificate because he was not present during the birth. There is no evidence contradicting that the NH was C~’s father.

In sum, we believe that Kansas courts would find that C~ could establish a rebuttable presumption of paternity. It follows that he could establish his entitlement to inheritance under the relevant Kansas intestacy statute. Thus, we believe that you could find that C~ has met the requirements for entitlement under section 216(h)(2)(A).

CONCLUSION

Because C~ could establish entitlement to inheritance under the relevant Kansas intestacy statute, he can be entitled to surviving child’s benefits as the NH’s child under section 216(h)(2) of the Act.

Kristi A. Schmidt

Chief Counsel, Region VII

By: Meghan J. McEvoy

Assistant Regional Counsel

B. PR 11-126 Presumption of Paternity in Kansas R~, Number Holder, SSN ~ L~, Child, SSN ~

DATE: June 28, 2011

1. SYLLABUS

Because the claimant (L~) could establish entitlement to inheritance under the relevant Kansas intestacy statute, he qualifies as R~’s child under section 216(h)(2) of the Act. Furthermore, L~ is entitled to retroactive benefits for six months prior to his application date.

2. OPINION

You asked for advice as to whether L~ is entitled to child’s benefits on the Social Security record of R~. For the reasons discussed below, we believe that L~ meets the requirements for entitlement under section 216(h)(2)(A) of the Social Security Act, because he would be able to inherit under Kansas intestacy law as the child of R~.

Factual Background

The information you provided shows that on April XX, 2011, T~ filed an application for child’s insurance benefits for her son, L~, on the record of R~. 1 L was born on July XX, 2010. During the application process, T~ admitted that she was married to another man, D~, when L~ was born, but maintained that R~ is L’s biological father.

T~ submitted deoxyribonucleic acid (DNA) test results, obtained by the Kansas Department of Social and Rehabilitation Services (SRS), excluding D~ as L’s biological father with a 0.00 percent probability of paternity. 2 T~ also reported that although she was still legally married to D~, she had not lived with him since February 2007. She said that D~ had asked about L~ on only one occasion and she told him that L~ was not his son.

T~ also provided a “Father’s Affidavit” and “Paternity Consent Form,” signed by R~ on April 18, 2011. In the affidavit and consent form, R~ acknowledged his paternity of L~ and requested that L~’ birth certificate be amended to list him as the father and change L~’s last name to “N~.” 3 By signing the affidavit, R~ acknowledged that he was creating “a permanent father and child relationship” with L~ and L~ could subsequently inherit and receive public benefits as his child. On April XX, 2011, the District Court of Cloud County, Kansas, ordered the State Registrar to amend L~’ birth certificate to add R~ as L~’ father and change L~’s last name to his.”

On April XX, 2011, T~ petitioned for divorce from D~. In her petition,

T~ stated that no children had been born to her marriage with D~.

Upon request, T~ and R~ each completed a Child Relationship Statement (SSA-2519) describing R~’s relationship with L. Their statements were essentially identical and indicated that R~ does not make regular and substantial contributions for L~’s support, but he has admitted, both orally and in writing, that L~ is his son. In a telephone interview, T~ clarified that R~ occasionally helps her with utility and rent payments and had told his adult children that L~ was his son. She also reported that SRS had ordered a paternity test for R~ and she planned to move in with him.

On May XX, 2011, T~ called the Field Office and reported that the DNA test confirmed that R~ was L’s biological father. 4 We received the results on May XX, 2011. The results showed a 99.99 percent probability that R~ is L~’s biological father.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child’s insurance benefits. This section provides that every child (as defined in section 216(e)) of an individual receiving old-age benefits under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18, and was dependent on the insured at the time the application was filed. See 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. To qualify as the “child” of an insured individual under section 216(e), the applicant must be the natural child, legally adopted child, stepchild, grandchild or stepgrandchild, or equitably adopted child of the insured individual. See also 20 C.F.R. §§ 404.350(a), 404.355-404.359. If the applicant qualifies as the insured's child under section 216(e), he is also deemed dependent upon the insured for purposes of determining eligibility for child's benefits. See 20 C.F.R. § 404.361(a).

In this case, there is no evidence to suggest that L~ is the legally adopted child, stepchild, or equitably adopted child of R~. Therefore, the relevant inquiry is whether L~ qualifies as R~’s natural child under the Act.

L~ may show that he is the child of R~ in one of four ways outlined in the Act. Section 216(h)(2) of the Act (42 U.S.C. § 416(h)(2)) provides that an applicant may be deemed the child of a number holder if the following circumstances apply:

1. The applicant could inherit the insured’s property as the insured’s child under the law of intestate succession in the state where the insured was domiciled at the time the child filed the application. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b).

2. If the applicant does not qualify under the first provision, the child may be deemed a child of the insured if the insured individual and the mother or father of the child went through a marriage ceremony that, except for a procedural defect, would have been a valid marriage. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).

If neither of those provisions is met, the applicant may be deemed a child of the insured under section 216(h)(3) of the Act, if :

1. The insured individual acknowledged in writing that the applicant was his son or daughter, was decreed by a court to be the father or mother, or was ordered to contribute to the support of the child because they are his son or daughter. See 42 U.S.C. § 416(h)(3)(A); 20 C.F.R. § 404.355(a)(3). For an applicant to be deemed a child under this provision, these acts must have occurred not less than one year before the insured individual became entitled to old-age insurance benefits or attained retirement age, whichever is earlier. See id.

2. The insured is shown by evidence satisfactory to the Commissioner of Social Security to be the child's father, and the insured was living with or contributing to the child's support at the time the child filed the application for benefits. See 42 U.S.C. § 416(h)(3)(A)(ii); 20 C.F.R. § 404.355(a)(4).

If the evidence establishes any of the above factual scenarios, the applicant is considered the insured’s child for purposes of entitlement to child’s benefits. See 42 U.S.C. § 416(h)(3).

It is first necessary to determine whether L~ qualifies as R~’s child under section 216(h)(2) of the Act, as outlined above. As there is no evidence that T~ and R~ ever attempted to marry, we will consider whether L~ could inherit R~’s property through intestate succession. See 42 U.S.C. § 416(h)(2)(A).

As discussed, in determining whether an applicant is an individual’s child under the law of intestate succession, the agency applies the law that would determine devolution of intestate personal property by the courts of the state where the insured individual was domiciled at the time the application was filed. See 42 U.S.C. § 416(h)(2)(A). If the child could take a share of the insured individual’s personal property, under that state’s intestacy law, he is considered the insured individual’s child for Social Security benefit purposes. See id.; 20 C.F.R. § 404.355.

The information you provided indicates that R~ was domiciled in Kansas at the time L~ filed his application. Therefore, we apply Kansas’ intestacy laws to determine if L~ would qualify as R~’s “child” under Kansas law. See 42 U.S.C. § 416(h)(2)(A);

20 C.F.R. § 404.355.

In Kansas, all “children” of an intestate decedent may share in an intestate estate. See Kan. Stat. Ann. § 59-506. The term “children” is defined as “biological children, including a posthumous child; children adopted as provided by law; and children whose parentage is or has been determined under the Kansas parentage act or prior law.” Kan. Stat. Ann. § 59-501(a).

In this case, DNA evidence establishes a 99.99 percent probability that R~ is L~’s biological father. However, because T~ was married to D~ when L~ was born, there is a statutory presumption that D~ is L~’s father. See Kan. Stat. Ann.

§ 38-1114; see also Janzen v. Janzen, 228 P.3d 425, 428 (Kan. App. 2010). The Kansas Parentage Act establishes the presumption of paternity and describes how it is to be applied and how it may be rebutted. Kan. Stat. Ann. § 38-1114.

The Kansas Parentage Act outlines several scenarios in which a man is legally presumed to be the father of a child. See Kan. Stat. Ann. § 38-1114(a). For purposes of this opinion, the statute states, in relevant part, that a man is presumed to be the father of a child if:

(1) The man and the child’s mother are, or have been, married to each other and the child is born during the marriage . . .;

(4) The man notoriously or in writing recognizes paternity of the child . . .;

or

(5) Genetic test results indicate a probability of 97% or greater that the man is the father of the child.

See Kan. Stat. Ann. § 38-1114(a).

A presumption arising under this section can only be rebutted by clear and convincing evidence, by a court decree establishing paternity of the child by another man, or if two or more conflicting presumptions arise which the court must resolve. See Kan. Stat. Ann. § 38-1114(b). If two or more presumptions arise which conflict with each other, the presumption “founded on the weightier considerations of policy and logic, including the best interests of the child, shall control.” Kan. Stat. Ann. § 38-1114(c).

The facts of this case present conflicting presumptions of paternity. As L~ was born during the marriage of D~ and T~, there is a statutory presumption that D~ is L~’s father. See Kan. Stat. Ann. § 38-1114(a)(1). However, DNA test results indicate that D~ is not L~’s biological father. There is also a statutory presumption that R~ is L~’s father, because R~ acknowledged in writing that L~ is his son and genetic test results establish a 99.99 percent probability that he is L~’s father. See Kan. Stat. Ann. § 38-1114(a)(4), (5). Because the statute establishes conflicting presumptions of paternity, we must determine which presumption is “founded on the weightier considerations of policy and logic.” See Kan. Stat. Ann. § 38-1114(b).

The Kansas Supreme Court has concluded that the “ancient presumption of the legitimacy of a child born in wedlock is one of the strongest presumptions known to the law.” In re Marriage of R~, 783 P.2d 331, 335 (Kan. 1990). Kansas courts have also held that DNA testing is not conclusive of paternity. See id. at 338 (noting that exclusive reliance on DNA testing is contrary to the longstanding public policy “that a child born during a marriage should not be bastardized”); see also Reese v. Muret, 150 P.3d 309, 313 (Kan. 2007); In re Marriage of P~, 58 P.3d 680 (Kan. 2002); Ferguson v. Winston, 996 P.2d 841 (Kan. Ct. App. 2000).

Accordingly, Kansas courts will not “subvert the presumption of paternity in favor of biology without requiring a court to consider whether it is in the child’s best interests” to do so. 5 R~, 150 P.3d at 316. Therefore, we must consider whether rebutting the presumption of D~’s paternity is in L~’s best interest.

In determining a child’s best interest, the court considers the issue “from the child’s point of view.” Jensen v. Runft, 843 P.2d 191, 194 (Kan. 1992). Because shifting of paternity from the presumed father could be “detrimental to the child,” the courts examine the child’s physical, mental, and emotional needs in considering the child’s best interests. R~, 783 P.2d at 339.

Although L~ was born during the marriage of D~ and T~, T~ reported that she was not living with D~ when L~ was born and there is no evidence that D~ provides support for L~ or has even attempted to establish a relationship with him. In fact, T~ stated that D~ had only asked about L~ on one occasion and she informed D~ that L~ was not his son. Furthermore, after receiving DNA test results, SRS dismissed a pending court action against D~, stating that D~ was not L~’s biological father.

On the other hand, R~ has acknowledged, both orally and in writing, that L~ is his son. As part of his acknowledgement, R~ confirmed his understanding that he was responsible for L~’s care and support and L~ could inherit and receive benefits as his son. R~ also obtained a court order adding his name to L~’s birth certificate and changing L~s’s last name to “N~.” Additionally, although L~ does not live with R~, R~ provides occasional assistance to L’ mother and T~ indicated that she planned to move in with R~.

The stated purpose of the Kansas Parentage Act is to “ensure that the legal obligations, rights, privileges, duties and obligations incident to . . . the father/child relationship would be carried out.” R~, 783 P.2d at 334. After weighing the available evidence, we believe that R~’s relationship with L~ best fulfills the purposes of the Kansas Parentage Act and a Kansas court would determine that it is in L~’s best interest to rebut the presumption of D~’s paternity in favor of R~. As L~’s parentage in ~ could be established under the Kansas Parentage Act, L~ meets the definition of a child who could inherit R~’s property under Kansas’ intestacy laws. Therefore, it is our opinion that L~ meets the requirements for entitlement to child’s insurance benefits under section 216(h)(2)(A) of the Social Security Act.

In your memorandum, you expressed concern that we could not consider T~’s statements denying D~’s paternity, because the Lord Mansfield Rule prohibits a mother or father from declaring that a child born during their marriage is illegitimate. Although Program Operations Manual System (POMS) GN 00306.026 states that Kansas still follows the Lord Mansfield Rule, our research indicates that the rule in no longer applicable in Kansas. The Kansas Supreme Court stated, in R~, 783 P.2d at 335, that although Kansas courts have not explicitly overruled the Lord Mansfield Rule, the rule has been modified by more recent court cases and by Kansas’ adoption of the Kansas Parentage Act.

Under the Kansas Parentage Act, there is no distinction between legitimate and illegitimate children and the parent and child relationship extends equally to every child and parent, regardless of the marital status of the parents. See Kan. Stat. Ann. § 38-1112; see also POMS GN 00306.085. In other words, all children have the same legal relationships with their parents, regardless of whether their parents are married or unmarried. Additionally, although a child is presumed a child of the marriage, that presumption can be rebutted, as outlined above, and any person acting on behalf of the child can bring a court action to determine paternity. See Kan. Stat. Ann. §§ 38-1114(a), 1115(a); see also Kan. Stat. Ann. § 38-1118(a) (a court may, upon the motion of any party to a paternity action, order genetic testing). Therefore, T~ is not precluded from asserting that R~ is L~’s father. 6 Furthermore, as you noted, there is additional evidence, including DNA test results, excluding a biological relationship between R~ and L~.

You also asked whether L~ could qualify as a “child” under section 216(h)(3)(A) of the Act, based on R~’s written acknowledgement that L~ is his son. As discussed above, an applicant can be deemed the child of an insured individual under the Act if that individual acknowledges in writing that the applicant is his son. See 42 U.S.C. § 416(h)(3)(A). However, if the insured individual is entitled to old-age benefits, his acknowledgment must be made at least one year before he becomes entitled to old-age insurance benefits or attains retirement age, whichever is earlier. See id. Our records indicate that R~ became entitled to old-age benefits in 2003. Since, L~ was not born until July 2010, it was not possible for R~ to make a statement acknowledging paternity within the timeframe required by the Act. Therefore, L~ does not qualify as N~’s “child” under section 216(h)(3)(A) of the Act.

Lastly, you asked for guidance in determining the retroactive effect of L~’s benefits. The Act provides that a child of an insured individual entitled to old-age benefits shall be entitled to benefits for each month, beginning with the first month throughout which the child meets the criteria outlined in section 202(d)(1) of the Act. See 42 U.S.C. § 402(d)(1)(C)(i). The regulations also state that if an applicant meets all the requirements for entitlement while his application is in effect, he may receive benefits from the first month he meets all the requirements for entitlement. See 20 C.F.R. § 404.621(a)(1). If a claimant meets all of the requirements for child’s benefits prior to the date of his application, the claimant may be paid up to six months of retroactive benefits. See 20 C.F.R. § 404.621(a)(2).

Agency policy provides that acts that legitimize a child tend to be given retroactive effect, while acts conferring inheritance rights without legitimizing the child generally operate prospectively. POMS GN 00306.055. However, in Kansas, as discussed above, there is no distinction between legitimate and illegitimate children. See Kan. Stat. Ann. § 38-1112; see also POMS GN 00306.085 (In Kansas a child is considered legitimate from the date of birth.). Kansas law also provides that once paternity is established, the father may be ordered to reimburse the mother the expenses of support from the child’s date of birth. See Kan. Stat. Ann. § 38-1121(e);

see also J~, 228 P.3d 425 (citing In re Parentage of S~, 126 P.3d 445 (2006) (citing Skillett v. Sierra, 53 P.3d 1234, 1240-41 (Kan. App. 2002). Therefore, we believe that L~ is considered legitimate since the date of his birth under the Kansas Parentage Act.

Since L~ is considered legitimate from birth, L~ met the requirements for entitlement prior to his application date. Therefore, L~ is entitled to six months of retroactive benefits prior to the date his application was filed. See 20 C.F.R. § 404.621(a)(2).

Conclusion

Because L~ could establish entitlement to inheritance under the relevant Kansas intestacy statute, he qualifies as R~’s child under section 216(h)(2) of the Act. Furthermore, L~ is entitled to retroactive benefits for six months prior to his application date.

Very truly yours,

Kristi S~
Chief Counsel, Region VII

Kristin B~
Assistant Regional Counsel.


Footnotes:

[1]

. R~ has received retirement benefits since July 2003.

[2]

. After receiving the DNA test results, SRS dismissed a pending court action against D~, stating that D~ was not L~’s biological father.

[3]

. D~’s name never appeared on L~’s birth certificate and L~ was given the last name of “Mom~” (T~’s maiden name).

[4]

. T~’s divorce documents, R~’s DNA test results, and additional statements from involved parties, were obtained upon further development through fax, email, and telephone correspondence with A~, Operations Supervisor, dated May 11, 2011 to June 7, 2011.

[5]

. Pursuant to R~, 738 P.2d at 339, Kansas courts also consider the best interests of a child before deciding to order DNA evidence in paternity cases.

[6]

. For these reasons, we believe that the POMS should be updated to reflect Kansas’ current law. Please contact our office if you need assistance in drafting language to update the POMS.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501105019
PR 01105.019 - Kansas - 07/22/2016
Batch run: 07/22/2016
Rev:07/22/2016