The number holder (NH) was domiciled in Kentucky when he died; therefore, we look to the Kentucky intestacy law to determine whether the Claimant is the NH’s child. The Kentucky paternity law provides that genetic test results are admissible in an adjudication of paternity and must be weighed with other evidence of the alleged father’s paternity. . The DNA testing showed only a 62.04% probability that the NH’s mother is the Claimant’s grandmother, and the report states that the state of the relationship is inconclusive because the probabilities of being the biological grandparent and being unrelated are both less than 80%. Because the DNA test results do not establish a biological relationship between the NH’s mother and the Claimant, the DNA testing does not provide evidence that the Claimant is the NH’s child. The evidence the Claimant’s mother submitted is not sufficient to establish that the Claimant could inherit from the NH under the Kentucky intestacy law. The Claimant is not the NH’s child under section 216(h)(2)(A) of the Act. The evidence also does not establish that the Claimant could be deemed NH’s child under section 216(h)(3)(C) of the Act.

QUESTION

You asked whether DNA test results that were inconclusive whether the claimant is the grandchild of the number holder’s mother, along with statements from the claimant’s mother and the number holder’s mother, are sufficient to establish that the claimant is the number holder’s child for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record.

OPINION

The DNA evidence, statements from the claimant’s mother, and statements from the number holder’s mother do not provide clear and convincing evidence that the claimant is the number holder’s child under Kentucky intestacy law for determining the claimant’s eligibility for CIB on the number holder’s earnings record.

BACKGROUND

May XX, 2016, S~ (Claimant’s mother) applied on behalf of her daughter, J~ (Claimant), for CIB on the earnings record of W~, the number holder (NH). Claimant was born on March XX, 2007. Claimant’s birth certificate does not identify her father. NH died almost four years later, on December XX, 2010, while domiciled in Kentucky. Claimant’s mother submitted a Certification of Documents or Records form, stating NH died in Kentucky and that his death certificate was on file with the Kentucky Office of Vital Statistics. Claimant’s mother and NH’s mother never told NH that he was Claimant’s father. Claimant’s mother stated NH had stomach cancer and “would have been to [sic] sick to understand on all those meds.”

Claimant’s mother completed a Child Relationship Statement form in June 2016. Claimant’s mother reported that:

• •

  No court had decreed Claimant to be NH’s child or ordered NH to contribute to Claimant’s support.

• •

  NH did not identify Claimant as his child in an application or statement filed with a government agency, a letter, a family tree or other family record, a tax return, an insurance policy, a will, or an employment application.

• •

  NH did not register Claimant in a school or place of worship or sign a report card as Claimant’s parent.

• •

  NH did not take Claimant to a medical appointment and list himself as Claimant’s parent.

• •

  NH did not pay Claimant’s hospital expenses at birth or provide information for Claimant’s birth certificate.

• •

  NH did not orally admit to anyone that he was Claimant’s father.

• •

  NH was not making regular and substantial contributions to Claimant’s support at the time of his death.

• •

  Claimant’s mother reported that she knew of other written evidence that would show that Claimant was NH’s daughter, and she submitted results of DNA testing from June 2015. The results show that a facility accredited by the American Association of Blood Banks (AABB) analyzed DNA samples from Claimant, Claimant’s mother, and NH’s mother. The results show a 62.04% probability that NH’s mother is Claimant’s grandmother. The report concludes that “[t]he state of the relationship is inconclusive because the probabilities of being the biological grandparent and being unrelated are both less than 80%.”

• •

  NH’s mother stated she “caught” Claimant’s mother and NH “in bed together . . . in my home.” She also stated she confronted Claimant’s mother at the time of conception, was at Claimant’s birth, and heard from Claimant’s mother that Claimant was her grandchild. NH’s mother also stated that her mother looked like Claimant and that Claimant has the same health as NH.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2016). “Child” includes “the child” of an insured individual. Act § 216(e); see 20 C.F.R. § 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show he is “the child” of a deceased insured individual within the meaning of section 216(e)(1) under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. See Capato, 132 S. Ct. at 2028.

Under section 216(h)(2)(A), a claimant is considered “the child” of a deceased insured individual if the child could inherit the insured individual’s intestate personal property under the law of the state where the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 132 S. Ct. at 2028-34; Program Operations Manual System (POMS) GN 00306.001.C.1.a., C.2.a. NH was domiciled in Kentucky when he died. We therefore look to Kentucky intestacy law to determine whether Claimant is NH’s child. 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.

Under Kentucky law, if NH died with kindred, his intestate estate would pass to his kindred beginning with his surviving children. See Ky. Rev. Stat. Ann. § 391.030 (West 2016); Fykes v. Clark, 635 S.W.2d 316, 317 (Ky. 1982) (“When a person dies intestate, both real and personal property shall descend in common to his children or their descendants”). A person born out of wedlock is the child of his 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) In determining the right of the child or its descendants to inherit from or through the father:

(1) There has been an adjudication of paternity before the death of the father; or

(2) There has been an adjudication of paternity after the death of the father based upon clear and convincing proof.

Ky. Rev. Stat. Ann. § 391.105(1). The provided information does not show that NH and Claimant’s mother participated in a marriage ceremony as required by subsection (a). It also does not show an adjudication of paternity as required by subsection (b), but the Social Security Administration (SSA) does not require that a claimant obtain such a determination by a state court. SSA will use 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), which in Kentucky is “clear and convincing proof,” Ky. Rev. Stat. Ann. § 391.105(1)(b)(2).

The Fykes court stated that clear and convincing does not require uncontradicted proof; instead it requires proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people. See Fykes, 635 S.W.2d at 318; see also Chester for Chester v. Sec’y of Health & Human Servs., 808 F.2d 473, 479 (6th Cir. 1987) (applying Fykes in a CIB case).

Kentucky paternity law provides that genetic test results are admissible in an adjudication of paternity and must be weighed with other evidence of the alleged father’s paternity. See Ky. Rev. Stat. Ann. § 406.091(3). A rebuttable presumption of paternity exists if a court finds that the statistical probability of paternity equals or exceeds ninety-nine percent (99%) based on genetic testing. See Ky. Rev. Stat. Ann. § 406.111. Kentucky’s intestacy statutes do not appear to address genetic testing, but case law indicates that Kentucky courts will consider DNA evidence in an intestacy case. See POMS PR 01010.020A (PR 12-100) (citing Hibbs v. Chandler, 684 S.W. 2d 310, 313 (Ky. Ct. App. 1985)).

Here, the DNA test results do not create a presumption that NH was Claimant’s father. In fact, the DNA test results do not even suggest that NH’s mother is related to Claimant. The DNA testing showed only a 62.04% probability that NH’s mother is Claimant’s grandmother, and the report states that “[t]he state of the relationship is inconclusive because the probabilities of being the biological grandparent and being unrelated are both less than 80%.” As the DNA test results do not establish a biological relationship between NH’s mother and Claimant, the testing, therefore, does not provide evidence that Claimant is NH’s child.

Otherwise, Kentucky courts have found clear and convincing proof of paternity in intestacy matters without DNA evidence. In Fykes, the Kentucky Supreme Court found that a purported child had produced sufficient evidence to establish paternity through testimony from the natural mother, the sister of the decedent, and the administratrix of the estate without any DNA or blood testing See Fykes 635 S.W.2d at 318. The witnesses in that case provided uncontradicted testimony of a relationship between the child’s mother and decedent consistent with paternity including that the mother and decedent expected that the mother was pregnant, the decedent informed witnesses that he was the expectant father, and that the couple planned to be married before decedent died unexpectedly. See id.

The non-DNA evidence here is not as substantial as the evidence that established clear and convincing proof of paternity in Fykes. NH’s mother stated she “caught” Claimant’s mother and NH “in bed together . . . in my home,” confronted Claimant’s mother at the time of conception, was at Claimant’s birth, and heard from Claimant’s mother that Claimant was her grandchild. NH’s mother also stated that her mother looked similar to Claimant, and that Claimant had NH’s health. However, Claimant’s mother reported that NH did not acknowledge himself as Claimant’s father on any available documents, did not orally state to anyone he was Claimant’s father, and was not making regular and substantial contributions to Claimant’s support at the time of his death. The evidence also does not show that Claimant visited NH during his lifetime. In light of this scant evidence, we believe a Kentucky court would conclude the available evidence would not convince ordinarily prudent-minded people of NH’s paternity of Claimant and therefore does not amount to the clear and convincing proof necessary for Claimant to inherit from NH under Kentucky intestacy law. See Fykes, 635 S.W.2d at 318.

Finally, a claimant may be deemed the “child” of a deceased insured individual under section 216(h)(3)(C) of the Act if the claimant is the son or daughter of the insured individual and shows one of the following: (1) the insured individual acknowledged in writing that the child was his child; (2) a court decreed the insured individual to be the father of the child; (3) a court ordered the insured individual to contribute to the support of the child; or (4) the insured individual is the child’s natural father and was living with or contributing to the support of the child when the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). The acknowledgment, court decree, or court order must have occurred before the insured individual’s death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3). The information provided does not indicate SSA could deem Claimant to be NH’s child under section 216(h)(3)(C).

CONCLUSION

The evidence Claimant’s mother submitted is not sufficient to establish Claimant could inherit from NH under Kentucky intestacy law and, therefore, Claimant is not NH’s child under section 216(h)(2)(A) of the Act. The evidence also does not establish Claimant could be deemed NH’s child under section 216(h)(3)(C) of the Act.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Kevin M. Parrington

Assistant Regional Counsel

The Claimant was awarded Child Insurance Benefits (CIB) beginning March 2012 based on a filing date of August 23, 2011. The field office determined that the Claimant was the NH’s daughter based on the clear and convincing evidence standard but denied retroactivity of benefits under the policy conferring that inheritance rights generally has effect only from the date of such act/event. For retroactivity of benefits, the Kentucky Supreme Court has held that it is beyond dispute that a child born out of wedlock has exactly the same rights to inherit as does a legitimate child. The DNA evidence and statement from the deceased number holder’s daughter provide clear and convincing evidence that the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record and Claimant would be eligible for benefits from six months before her application.

QUESTION

You asked whether DNA testing results showing a 97.8% probability of half-siblingship between the claimant and the deceased number holder’s daughter along with a statement from the deceased number holder’s daughter that the deceased number holder told her the claimant was his baby, suffices to establish the claimant is the number holder’s child for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record. You also asked, if the claimant is determined to be the number holder’s child, when the claimant’s eligibility would begin.

OPINION

The DNA evidence and statement from the deceased number holder’s daughter provide clear and convincing evidence that the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record. Claimant would be eligible for benefits from six months before her application.

BACKGROUND

According to the information provided, Sarah, the mother of Audrie (Claimant), filed an application on Claimant’s behalf for CIB on the earnings record of Ralph, the number holder (NH). The Social Security Administration (SSA) awarded CIB to Claimant beginning March 2012. Claimant was born on April. Claimant’s birth certificate and a hospital record of birth do not list her father. A family history page also does not indicate the name of Claimant’s father. NH’s death certificate indicates he was a resident of Kentucky when he died on January XX, 2010. The information provided states Claimant’s mother was not married to NH and nothing indicates she was married to anyone else.

SSA awarded Claimant CIB on NH’s earnings record based on out-of-state DNA testing and a statement from Debra, who is NH’s daughter (C1). The DNA testing used samples from Claimant, Claimant’s mother, and C1. The DNA test results, dated October 20, 2011, showed a 97.8% probability of half-siblingship between Claimant and C1, that is, a 97.8% likelihood that they shared a common biological parent. SSA records show that Claimant and C1 do not share a mother. Claimant’s mother reported that NH had admitted to C1 that he was Claimant’s father, and Claimant’s mother indicated that NH had written letters where he referred to Claimant as his child, but she did not have any other evidence of NH’s paternity and the information provided did not include any such letters. C1 provided a statement dated March 5, 2012, in which she stated NH told her in or around August 2009 that Claimant’s mother was pregnant and he believed he was the father. NH purportedly told C1 that she was going to have a sibling and said, “it’s my baby.” C1 also stated that her husband was present when NH made this statement, but the information provided does not included a statement from C1’s husband.

Claimant was awarded Child Insurance Benefits (CIB) beginning March 2012 based on a filing date of August 23, 2011. The field office determined that Claimant was NH’s daughter pursuant to Program Operations Manual System (POMS) GN 00306.500(A)(1) under a clear and convincing evidence standard and denied retroactivity of benefits under POMS GN 00306.055(A)(3). The Great Lakes Program Service Center received the case on reconsideration request appealing the decision on retroactivity of benefits. We have been asked if there is sufficient evidence to prove the purported relationship between Claimant and NH and if so, when Claimant’s eligibility for benefits would begin.

DISCUSSION

To be eligible for CIB on the earnings record of a fully or currently insured deceased individual, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (West 2013). Unless otherwise noted, all subsequent references to the C.F.R. are to the 2013 edition.

 “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354. When a claimant’s parents have not gone through a marriage ceremony, the claimant may show she is “the child” of a deceased individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) Nothing in the information provided suggests that the provisions of section 216(h)(3)(C) of the Act would apply here. The evidence does not indicate that NH acknowledged his paternity of Claimant in writing, include a court decree or order related to NH’s paternity of Claimant, or indicate NH was living with or contributing to Claimant’s support at the time of his death. As such, we do not analyze section 216(h)(3)(C) further.

Of the Act. Under section 216(h)(2)(A), a claimant must show she would be entitled to a child’s share of the insured’s intestate personal property under the law of the state in which the insured was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) GN 00306.055(A)(1). According to NH’s death certificate, NH was domiciled in Kentucky when he died. Therefore, we look to Kentucky intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4).

Under Kentucky law, if NH died with kindred, his intestate estate would pass to his kindred beginning with his surviving children. See Ky. Rev. Stat. Ann. §§ 391.010, 391.030 (West 2013); Unless otherwise noted, all subsequent references to the Ky. Rev. Stat. Ann. are to the 2013 West edition.

see also Fykes v. Clark, 635 S.W.2d 316, 317 (Ky. 1982) (“When a person dies intestate, both real and personal property shall descend in common to his children or their descendants.”).

Under Kentucky intestate law, a person born out of wedlock is the child of his 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) In determining the right of the child or its descendants to inherit from or through the father:

1. There has been an adjudication of paternity before the death of the father; or

2. There has been an adjudication of paternity after the death of the father based upon clear and convincing proof;

Ky. Rev. Stat. Ann. § 391.105(1). The F~ court stated that clear and convincing does not mean uncontradicted proof, but requires proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people. See F~, 635 S.W.2d at 318; see also Chester for Chester v. Sec’y of Health & Human Servs., 808 F.2d 473, 479 (6th Cir. 1987)(applying F~ in a CIB case). Given the information provided, Claimant could not qualify as NH’s child under subsection (a) of Ky. Rev. Stat. Ann. § 391.105(1) because NH and Claimant’s mother did not participate in a marriage ceremony. The evidence also does not include an adjudication of paternity as required by subsection (b) of Ky. Rev. Stat. Ann. § 391.105. However, SSA does not require that a claimant obtain such a determination by a state court but will use the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2).

Kentucky paternity law provides that genetic test results are admissible in an adjudication of paternity and must be weighed with other evidence of the alleged father’s paternity. See Ky. Rev. Stat. Ann. § 406.091(3). A rebuttable presumption of paternity exists if a court finds that the statistical probability of paternity equals or exceeds ninety-nine percent (99%) based on genetic testing. See Ky. Rev. Stat. Ann. § 406.111. Here, the DNA testing does not create a rebuttable presumption that NH was Claimant’s father as it showed only a 97.8% probability that Claimant and C1 are half-sisters. We note there is no evidence to suggest that Kentucky courts would treat genetic test results from an out-of-state testing facility any differently from those of an in-state facility. See POMS PR 01115.020(A) (PR 10-112). However, SSA must weigh the DNA test results with the other evidence available to determine whether clear and convincing evidence exists to show that Claimant is NH’s child. See id.; F~, 635 S.W.2d at 318 (establishing clear and convincing evidence standard); see also Croucher v. Clark, No. 2005-CA-000736-MR, 2006 WL 1867909, at *1 (Ky. Ct. App. 2006) (considering DNA testing showing 99.945% probability of paternity but noting that paternity was not established until the widow stipulated to that fact and that DNA was merely proof in support of an allegation, but did not conclusively prove paternity); Social Security Ruling 06-02p, 2006 WL 1609671, at *2-3 (SSA will determine whether the evidence relating to a claimant’s relationship to a known child of a number holder, including DNA testing showing a high probability of siblingship and any other evidence of such relationship, establishes that the claimant is the number holder’s child under applicable state law).

We believe a Kentucky court would find the evidence presented sufficient to establish NH’s paternity of Claimant given the facts of previous cases. In F~, the Kentucky Supreme Court found that a purported child had produced sufficient evidence to establish paternity through testimony from the natural mother, the sister of the decedent, and the administratrix of the estate without any DNA or blood testing. See F~ 635 S.W.2d at 318. The witnesses in that case provided uncontradicted testimony of a relationship between the child’s mother and decedent consistent with paternity, that the mother and decedent expected that the mother was pregnant, the decedent informed witnesses that he was the expectant father, and that the couple planned to be married before decedent died unexpectedly. See id. Here, although there is no evidence that NH and Claimant’s mother intended to wed, Claimant’s mother alleges NH’s paternity of Claimant and the information indicates NH informed C1 that she was going to have a brother or sister and said “it’s my baby,” referring to Claimant. There is no available information contradicting these statements. The F~ court stated that clear and convincing does not mean uncontradicted proof, but requires proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people. See id. Given the evidence provided, including NH’s apparent admission to paternity as well as the DNA evidence showing a 97.8% probability of half-siblingship between Claimant and C1, we believe a Kentucky court would find that Claimant had established NH’s paternity by clear and convincing evidence. The evidence provided here is similar to that in the F~ case and the DNA evidence lends further credibility to Claimant’s claim because the F~ court did not have DNA evidence and still found paternity.

We realize that previous opinions from this office have found that other claimants had not provided sufficient evidence to establish paternity by clear and convincing evidence, even in light of more compelling DNA evidence than exists here. See e.g., POMS PR 01115.020(A) (PR 10-112); PR 01115.020(B) (PR 09-048); PR 01010.020(B) (PR 12-060); PR 01010.020(C) (PR 11-016). However, we believe these opinions are distinguishable. These opinions all involved factual circumstances in which the only uncontradicted evidence of paternity were DNA test results. See POMS PR 01115.020(A) (PR 10-112); PR 01115.020(B) (PR 09-048); PR 01010.020(B) (PR 12-060); PR 01010.020(C) (PR 11-016). Thus, consistent with the reasoning from the C~ case above, we concluded in those opinions that the DNA test results alone were not sufficient to establish paternity. In Claimant’s case, however, other uncontradicted evidence supports the DNA test results and the evidence considered together provides clear and convincing evidence that Claimant is NH’s child for purposes of Kentucky intestacy law. Cf. POMS PR 01010.020 (PR 12-100)(finding DNA test evidence along with uncontradicted statements from multiple sources sufficient to rebut the presumption of husband’s paternity that exists when a child is conceived during a marriage).

As to retroactivity of benefits, the Kentucky Supreme Court has held that “[i]t is beyond dispute that an illegitimate child has exactly the same rights to inherit as does a legitimate child.” Wood v. Wingfield, 816 S.W.2d 899, 900 (Ky. 1991). Therefore, it appears that Claimant is entitled to receive benefits for up to 6 months prior to her application, rather than from the date that the DNA testing and NH’s daughter’s statement were provided to SSA. See 20 C.F.R. § 404.621(a)(2); POMS PR 01115.020 (PR 07-006), PR 01115.020 (PR 06-290).

CONCLUSION

For the foregoing reasons, the evidence provides clear and convincing proof that Claimant is NH’s child for purposes of intestate succession in Kentucky. Therefore, Claimant is NH’s child for determining her eligibility for CIB on NH’s earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Christopher Yarbrough

Assistant Regional Counsel

We believe the evidence submitted in this case is sufficient under Kentucky law to rebut the presumption of paternity of a child born during a marriage and establish the deceased number holder as the child’s father under Kentucky intestacy law. Although Claimant was born during the marriage of NH1 and Claimant’s mother, the DNA testing and other evidence are sufficient to rebut the presumption of paternity regarding a child born during wedlock. For a person alleging paternity by someone outside the marriage to overcome the presumption, he or she must present evidence of the strongest character, and so convincing as to remove the question of a reasonable doubt. The DNA testing results revealed a 99.99% probability NH2 was Claimant’s biological father.

Considering the DNA test evidence and the statements of NH1, Claimant’s mother, and the mother of NH1’s first child, we believe a Kentucky court would conclude clear and convincing evidence exists to establish that Claimant is NH2’s child for the purposes of Kentucky intestacy law. . Therefore, we conclude that the Claimant is NH2’s child for the purposes of determining Claimant’s eligibility for CIB on NH2’s earnings record.

QUESTION

You asked whether the claimant, who was born during a marriage between his mother and his mother’s disabled husband and who is presently receiving child’s insurance benefits (CIB) on the disabled husband’s earnings record, can receive CIB on the earnings record of another number holder, now deceased, where DNA results indicate the deceased number holder is the child’s biological father. The original request asked for an opinion regarding whether the claimant’s mother committed fraud by filing a claim for benefits on her disabled husband’s earnings record when she knew he was not the biological father of the claimant. Subsequently, the Louisville, Kentucky Field Office advised us we did not need to develop the fraud inquiry as the Social Security Administration (SSA) was on notice in 1999 that the disabled husband did not believe the claimant was his child.

OPINION

For the reasons stated below, we believe the evidence submitted in this case is sufficient under Kentucky law to rebut the presumption of paternity of a child born during a marriage and establish the deceased number holder as the child’s father under Kentucky intestacy law. Consequently, an SSA adjudicator could find the claimant is the child of the deceased number holder for CIB purposes.

BACKGROUND

According to the information provided, Dewey, a number holder entitled to disability insurance benefits (NH1), and Lisa (Claimant’s mother) married on August XX, 1995. Corey (Claimant) was born on February. Claimant’s birth certificate lists NH1 as his father. Claimant became entitled to CIB on NH1’s earnings record in March 1999. In December 1999, Debra, the mother of NH1’s first child, contacted SSA to protest the reduction in CIB for her child due to Claimant’s entitlement to CIB on NH1’s earnings record. She alleged Claimant was not NH1’s child, per report of NH1 and several other people.

When contacted by SSA, NH1 provided a statement in February 2000 in which he indicated he and Claimant’s mother separated several times during their marriage, including the period between March 1998 and June 1998, the likely period of Claimant’s conception, and said he and Claimant’s mother had no marital relations during that period. NH1 indicated Claimant’s mother had an affair earlier in their marriage that resulted in a pregnancy that ended in miscarriage. According to NH1, the man with whom Claimant’s mother had the affair was Alvin, now deceased (NH2). NH1 stated Claimant’s mother lived with her mother and NH2 between March and June 1998. NH1 stated Claimant’s mother told him NH2 “forced himself” on her between March and June 1998. NH1 stated he did not believe Claimant was his child. NH1 and Claimant’s mother indicated they contacted the Jefferson County, Kentucky, County Attorney’s office to establish NH2 was Claimant’s father, but because NH1 and Claimant’s mother were legally married, the County Attorney’s office advised them they would have to hire their own attorney to file a civil action to establish NH2 was Claimant’s father. They did not file a paternity action against NH2. Despite NH1’s statements, SSA awarded Claimant CIB on NH1’s earnings record based on Kentucky’s presumption that a child born in wedlock is the legitimate child of his mother’s husband.

NH2 died on January XX, 2012, while domiciled in Kentucky. In February 2012, Claimant’s mother filed a CIB claim for Claimant on NH2’s earnings record. Claimant’s mother arranged for DNA testing of genetic samples from Claimant and NH2 the day following NH2’s death. The DNA testing results revealed a 99.99% probability NH2 was Claimant’s biological father. Claimant’s mother submitted these results to SSA in support of Claimant’s claim. Claimant’s mother stated she knew NH2 was Claimant’s biological father when she filed the application on Claimant’s behalf for CIB on NH1’s earnings record. Claimant’s mother admitted she had contacted the County Attorney’s office who advised she would have to hire her own attorney to file a paternity action against NH2. Claimant’s mother also completed a child relationship statement (SSA 2519) indicating NH2 filed an application with a government agency stating Claimant was his child, he referred to himself as Claimant’s father in writing, listed Claimant as his child in a family tree or other family record, took Claimant to a medical appointment and listed himself as the parent, paid for Claimant’s hospital expenses at birth, admitted orally he was Claimant’s father, and made regular and substantial contributions to Claimant’s support. Claimant’s mother did not provide any of the written documentation referred to in the SSA 2519.

DISCUSSION

To be eligible for CIB on the earnings record of a fully or currently insured deceased individual, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2011). Unless otherwise noted, all subsequent references to the C.F.R. are to the 2011 edition. “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354. A claimant may show he is “the child” of a deceased individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) Because we conclude that Claimant can qualify as NH2’s child under § 216(h)(2)(A) of the Act, we do not address § 216(h)(3) here. of the Act. Under section 216(h)(2)(A), a claimant must show he or she would be entitled to a child’s share of the insured’s intestate personal property under the law of the state in which the insured was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). According to the information provided, NH2 died while domiciled in Kentucky. Therefore, we look to Kentucky intestacy law to determine whether Claimant is NH2’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4).

Under Kentucky law, if NH2 died with kindred, his intestate estate would pass to his kindred beginning with his surviving children. See Ky. Rev. Stat. Ann. §§ 391.010, 391.030 (West 2012); see also Fykes v. Clark, 635 S.W.2d 316, 317 (Ky. 1982) (“When a person dies intestate, both real and personal property shall descend in common to his children or their descendants.”).

Although Claimant’s mother presented evidence suggesting Claimant is NH2’s biological child, Claimant was born during the marriage of Claimant’s mother and NH1. Kentucky law presumes a child born during lawful wedlock, or within ten months thereafter, to be the child of the husband and wife. See Ky. Rev. Stat. Ann. § 406.011 (West 2012). This presumption is one of the strongest presumptions known to law, but the presumption is not conclusive and may be rebutted by factual evidence. See Bartlett v. Comm. ex rel. Calloway, 705 S.W.2d 470, 472 (Ky. 1986). For a person alleging paternity by someone outside the marriage to overcome the presumption, he or she must present “evidence of the strongest character, and so convincing as to remove the question of a reasonable doubt.” J.A.S. v. Bushelman, 342 S.W.3d 850, 859 (Ky. 2011) (quoting Ratliff v. Ratliff, 183 S.W.2d 949, 952 (Ky. 1944)) (internal quotations marks and emphasis omitted).

Genetic testing that shows a probability of paternity equal to or exceeding 99% also creates a rebuttable presumption of paternity under Kentucky domestic relations law that can be rebutted only be a preponderance of the evidence. See Ky. Rev. Stat. Ann. § 406.111 (2012). Further, Kentucky domestic relations law states: “[g]enetic test results are admissible and shall be weighed along with other evidence of the alleged father’s paternity.” Ky. Rev. Stat. Ann. § 406.091(3) (West 2012). In B~, the Kentucky Supreme Court endorsed the use of DNA testing to establish paternity, stating: “We see no justification for keeping the traditional presumption of paternity locked in the science of centuries past. . . . DNA testing now serves as an appropriate form of evidence, not to avoid the traditional presumption of paternity, but to rebut it.” B~, 342 S.W. 3d at 861.

B~ arose when a putative father sued to establish paternity based on DNA testing that showed a 99.9429% probability he was the biological father. Id. at 853. The B~ court held, even if a woman is married, a putative father has standing to maintain a paternity suit if there is sufficient evidence to overcome the presumption of the husband’s paternity. Id. at 864-65. The court relied on the DNA test results as well as the mother’s admission she had a relationship with the putative father that included sexual intercourse during the likely time of conception to rebut the presumption of paternity. Id. Kentucky courts have considered genetic test results in determining the husband’s nonpaternity, along with other evidence, to rebut the presumption of paternity in other cases. See, e.g., B~, 705 S.W.2d at 471 (genetic testing showing a 99.93% probability of the third party’s paternity, wife’s testimony she had separated from her husband more than three years before the child’s birth and she and the third party lived together on and off for five years, the third party’s financial contribution to the child’s support, and a physical genetic characteristic between the third party and the child (six fingers) rebutted presumption); Spears v. Spears, 784 S.W.2d 605, 608 (Ky. Ct. App. 1990) (following divorce and order requiring husband to pay child support, blood test showed the husband was not the father of the child, and appeals court declined to apply the doctrine of res judicata, because prohibiting the husband from challenging paternity would “work an injustice” and the record did not show the husband ever held out the child as his or the wife had ever sought child support).

Based on the above legal authority, we believe the evidence submitted in this case is sufficient under Kentucky law to rebut the presumption of paternity of a child born during a marriage. Although Claimant was born during the marriage of NH1 and Claimant’s mother, the DNA testing and other evidence are sufficient to rebut the presumption of paternity regarding a child born during wedlock. See B~, 342 S.W. 3d at 861. In addition to the DNA evidence, NH1 stated he and Claimant’s mother were not living together and did not have sexual relations at the time of Claimant’s possible conception, whereas NH2 reportedly lived with Claimant’s mother and had sexual relations at that time. Both NH1 and Claimant’s mother expressed doubts about NH1’s paternity of Claimant. Thus, we believe the evidence rebuts the presumption that NH1 is Claimant’s father.

Kentucky law provides that “a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child.” Ky. Rev. Stat. Ann. § 406.011 (West 2012). The evidence rebutting the presumption that NH1 was Claimant’s father also indicates the marital relationship between Claimant’s mother and NH1 had ceased ten months before Claimant’s birth. Although we have not found any Kentucky statute or case law discussing the determination of inheritance rights of a child fathered by someone not a party to the marriage, we believe a Kentucky court would treat Claimant as a child born out of wedlock and apply Kentucky intestacy law for determining whether a child born out of wedlock is the child of the putative father. See Program Operations Manual System (POMS) GN 00306.055 (illegitimate child has status of “child” under the Act if has inheritance rights under applicable state intestacy law).

Under Kentucky intestate law, a person born out of wedlock is the child of his 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) In determining the right of the child or its descendants to inherit from or through the father:

 

Ky. Rev. Stat. Ann. § 391.105(1) (West 2012). Claimant could not qualify as NH2’s child under subsection (a) of Ky. Rev. Stat. Ann. § 391.105 because NH2 and Claimant’s mother did not marry or attempt to marry. The evidence also does not include an adjudication of paternity as required by subsection (b) of Ky. Rev. Stat. Ann. § 391.105. However, SSA does not require that a claimant obtain such a determination by a state court but will use the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2).

We believe a Kentucky court would conclude the evidence provides clear and convincing proof that NH2 is Claimant’s father. Kentucky domestic relations law provides that if a court finds that the statistical probability of paternity equals or exceeds ninety-nine percent (99%) based on DNA testing, there is a rebuttable presumption of paternity. Ky. Rev. Stat. § 406.111 (West 2012). This presumption shall only be rebutted by a preponderance of the evidence. Id. Kentucky intestacy law provides that courts will consider DNA testing as one piece of evidence to establish paternity posthumously. In Croucher v. Clark, No. 2005-CA-000736-MR, 2006 WL 1867909, at *1 (Ky. Ct. App. 2006), the plaintiff attempted to establish paternity to collect a share of the proceeds from a wrongful death claim. The Kentucky Court of Appeals considered test results comparing the DNA of the putative father and the alleged daughter born out-of-wedlock (and prior to a later marriage) that showed a 99.945% probability of paternity. See id. at *2-3. The court stated paternity was not established until the widow, and personal representative of the father’s estate, “stipulated [to] that fact. Even after DNA testing, the matter of paternity had not been established. The DNA test results were merely proof in support of the allegation.” The court also said “the DNA testing appeared to conclusively prove paternity,” but only after noting the widow who originally contested paternity stipulated to such paternity. See id. at *3. The court concluded paternity was not established and the widow did not owe a fiduciary duty to the daughter until the widow entered the stipulation. See id. Thus, the court required more than just DNA test results in making a determination of paternity. See id. Another Kentucky intestacy case in which genetic tests were considered is Hibbs v. Chandler, 684 S.W. 2d 310, 313 (Ky. Ct. App. 1985). In H~, the plaintiff attempted to establish paternity to qualify her child for CIB on the earnings record of the deceased number holder. The trial court ordered blood tests on the mother, child and putative grandparents, the results of which showed the putative father fell within the 64% to 99% probability range. Id. at 311-12. The Kentucky Court of Appeals found the blood test evidence, in conjunction with the mother’s deposition testimony that she had intercourse with the putative father around the probable date of conception, sufficient to withstand summary judgment. The H~ court stated that “clear and convincing evidence” was not required at the summary judgment stage. Id. at 312. Thus, H~ does not establish that DNA testing constitutes clear and convincing evidence, but it shows the Kentucky courts do consider DNA testing in the intestacy context.

Although we have not found any Kentucky statute or case law directly on point, we believe a Kentucky court would consider the DNA test results as evidence that Claimant is NH2’s child for the purposes of Kentucky intestacy law although the results alone would not presumptively establish paternity. Considering the DNA test evidence and the statements of NH1, Claimant’s mother, and the mother of NH1’s first child, we believe a Kentucky court would conclude clear and convincing evidence exists to establish that Claimant is NH2’s child for the purposes of Kentucky intestacy law.

CONCLUSION

The evidence presented rebuts the presumption that Claimant is NH1’s child. The evidence also provides clear and convincing proof that Claimant is NH2’s child under Kentucky intestacy law. Therefore, an SSA adjudicator could conclude Claimant is NH2’s child for the purposes of determining Claimant’s eligibility for CIB on NH2’s earnings record.

Mary Ann Sloan

Regional Chief Counsel

By: Megan E. Gideon

Assistant Regional Counsel