TN 3 (09-11)

PR 01105.028 Missouri

A. PR 11-145 Status of Landon K~’s Entitlement to Child’s Insurance Benefits on Michael A~’s Earnings Record

DATE: April 29, 2011

1. SYLLABUS

Michelle K~ applied for child’s insurance benefits on behalf of her son, Landon, on the earnings record of Michael. Landon was born on April 12, 2005, in Missouri. No father is listed on Landon’s birth certificate. Michael and Michelle had a relationship in 2004 while he was married to Tracie A~. Michael and Tracie were divorced in 2004 they had one child, Meighan A~.

DNA test results from samples taken from Michelle, Landon, Tracie, and Meighan show that the probability of half siblingship between Landon and Meighan is greater than 99.999%. Under these circumstances, we believe that the DNA test results create a rebuttable presumption that Michael is Landon’s father.

Because we believe that Landon could inherit from Michael under Missouri’s intestacy laws, we believe Landon can be entitled to child’s insurance benefits on the earnings record of Michael.

2. OPINION

You requested a legal opinion regarding whether Landon K~ qualifies for child’s insurance benefits on the earnings record of Michael A~. Based on the facts of this case, it is reasonable to conclude that Landon is entitled to child’s insurance benefits on Michael’s earnings record.

Because we believe that Landon could inherit from Michael under Missouri’s intestacy laws, we believe Landon can be entitled to child’s insurance benefits on the earnings record of Michael

Factual Background

The materials you provided indicate that Michelle K~ applied for child’s insurance benefits on behalf of her son, Landon, on the earnings record of Michael. Landon was born on April 12, 2005, in Missouri. No father is listed on Landon’s birth certificate. Michelle completed SSA Form 2519 where she indicated that Michael did not provide any financial contributions to Landon’s care. However, Michelle indicated that Michael had orally admitted to being Landon’s father to Michael’s first cousin, Jane M. H~. Jane stated that Michael and Michelle had a relationship in 2004 while Michael was married to Tracie A~, but they separated many times around 2004. Michelle was Michael’s girlfriend during these periods of separation. Michael and Tracie were married between August 1988 and December 2004. Tracie divorced Michael after discovering that Michelle was pregnant. Michael did not have any type of relationship with Landon prior to his death. Michael and Tracie had one child, Meighan A~, during their marriage. Meighan was born in March 1993. Meighan received child’s insurance benefits on Michael’s earning record until May 2011. Michael told Jane that he believed that Landon was his child. Jane stated that Landon has been accepted into the extended family and by Tracie. She also stated that Landon looked like Michael.

Michelle also provided the results of deoxyribonucleic acid (“DNA”) testing notarized and signed by an officer of a genetic testing facility. The facility’s vice president and chief technical officer, on a form dated May 3, 2011, stated that the facility had collected specimens from Michelle and Landon on April 22, 2011, and from Tracie and Meighan on April 27, 2011. The vice president indicated that the DNA test results showed that Landon and Meighan were 3,657,000 times more likely to be related as half siblings than to be unrelated. The probability of relatedness as half siblings was greater than 99.999%.

  1. 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 216(e)) of an individual who dies fully insured under the Act 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. Id. A child who was born to married parents or who was legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

A nonmarital 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, before his or her death: (a) acknowledged in writing the child as his or her 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. Based on the information provided, it does not appear that Landon can meet any of these requirements.1

A nonmarital 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) 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. A nonmarital child who meets the standard that Congress set forth in 216(h)(2)(A) of the Act is deemed to be dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976).

In this case, the evidence indicates that Michael was domiciled in Missouri at the time of his death; therefore, Missouri intestacy law applies.

Under the Missouri Probate Code, if the decedent has no surviving spouse, the decedent’s children, including posthumous children, take the decedent’s property. See MO. ANN. STAT. §§ 474.010, 474.050. The Probate Code describes the determination of the relationship between parent and child for probate purposes. See MO. ANN. STAT. § 474.060. A nonmarital child is a child of the mother and also a child of the father if (1) the “natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void,” or (2) “paternity is established by an adjudication before the death of the father, or is established thereafter by clear and convincing proof.” See id.

Because there is no evidence that Michelle and Michael ever married or attempted to marry, and no evidence that paternity was ever adjudicated, we must determine whether paternity was established by “clear and convincing proof.” The Eighth Circuit has noted that the Missouri Court of Appeals defines clear and convincing evidence as “that which ‘instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,’ and clearly convinces the fact finder that the evidence is true.” See Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992). The Seventh Circuit has interpreted the Missouri probate standard of “clear and convincing proof” as less than proof “beyond a reasonable doubt.” See Jones for Jones v. Chater, 101 F.3d 509, 512 (7th Cir. 1996).

While “the [Missouri] probate code – and not the Uniform Parentage Act – governs determinations of paternity,” one may “use the evidentiary standards and presumptions of the parentage act in proving paternity.” See LeSage v. Dirt Cheap Cigarettes and Beer, Inc., 102 S.W.3d 1, 4 (Mo. 2003) (citing In re Nocita, 914 S.W.2d 358, 359 (Mo. 1996)). Under Missouri’s Uniform Parentage Act, a man is “presumed to be the natural father of a child” if “[a]n expert concludes that the blood tests show that the alleged parent is not excluded and that the probability of paternity is ninety-eight percent or higher, using a prior probability of 0.5.” See MO. ANN. STAT. § 210.822. One can rebut this presumption “only by clear and convincing evidence.” See id. The term “expert,” as used in Missouri’s Uniform Parentage Act, “include[s], but [is] not [] limited to, a person who performs or analyzes a genetic test of a type generally acknowledged as reliable by the accreditation bodies designated by the secretary of the Department of Health and Human Services pursuant to 42 U.S.C. 666(a) and performed by a laboratory approved by such accreditation bodies.” See MO. ANN. STAT. § 210.834.

In order to establish the relevance of the siblingship DNA test, we will first examine the relationship between Meighan, Landon’s alleged half sister, and Michael. In this case, a search of Social Security Administration’s (“SSA”) computer records shows that Meighan received child’s insurance benefits on Michael’s earnings record and her relationship with Michael was proven. It is likely that Meighan met the definition of child in section 202(d)(3) of the Act because it appears that Meighan was born to married parents. Meighan was born on March 30, 1993, while Michael and Tracie were married between August 1988 and December 2004. Absent evidence to the contrary, because SSA likely determined that Meighan was a child born to married parents, we believe it is reasonable consider Meighan to be the known child of Michael. See Social Security Act § 202(d)(3).

DNA test results from samples taken from Michelle, Landon, Tracie, and Meighan show that the probability of half siblingship between Landon and Meighan is greater than 99.999%. Under these circumstances, we believe that the DNA test results create a rebuttable presumption that Michael is Landon’s father. See MO. ANN. STAT. § 210.822.

Missouri’s Uniform Parentage Act does not specifically address the situation where a child’s sibling rather than father provides the DNA samples nor is there any Missouri caselaw addressing the use of sibling DNA testing in paternity actions. We believe a Missouri court would likely consider the results of the siblingship DNA test, along with other evidence.2 See MO. ANN. STAT. § 210.836 (noting that “[e]vidence relating to paternity may include” specific evidence, such as medical evidence, and “[a]ll other evidence relevant to the issue of the paternity of the child”). See also Courtney v. Roggy, 302 S.W.3d 141, 146 (Mo. App. 2009) (discussing the use of DNA testing to establish paternity).

In addition, there is no evidence suggesting that Michael is not Landon’s father. See Courtney, 302 S.W.3d at 147 (noting that “there was no evidence before the trial court to rebut the DNA blood test presumption”). No one disputes Michael’s paternity, and Michael’s cousin, Jane, stated that Michael told her, before he died, that he believed Landon to be his child. Jane also stated that Michael and Michelle had a relationship in 2004 while Michael was separated from his wife. Landon was born in April 2005. Further, Tracie divorced Michael, in 2004, after discovering that Michelle was pregnant with Landon, which suggests that she believed the child was Michael’s child. Jane stated that Landon has been accepted into Michael’s extended family, including Tracie, and that Landon looked like Michael. We believe that the DNA test result, in conjunction with the other evidence, is sufficient to establish “clear and convincing proof” that Michael is Landon’s father. See MO. ANN. STAT. § 474.060. Based on this evidence, we believe that Landon could inherit from Michael under Missouri’s intestacy laws.

Because we believe that Landon could inherit from Michael under Missouri’s intestacy laws, we believe Landon can be entitled to child’s insurance benefits on the earnings record of Michael. See Social Security Act § 216(h)(2)(A).

Kristi A. S~
Regional Chief Counsel VII

By:______________
Jeremiah D. H~
Assistant Regional Counsel.


Footnotes:

[1]

Social Security Ruling (“SSR”) 06-02p discusses the effect of DNA testing that shows a sibling relationship when determining whether a claimant (“C2”) is entitled to benefits under the state law definition and the alleged sibling (“C1”) is already entitled to benefits as the number holder’s child. The SSR explains that DNA testing demonstrating a sibling relationship between C1 and C2 will be used as evidence that C2 is entitled to benefits as the number holder’s child. See SSR 06-02p. This policy is limited to when C1 has been found to be the known child of the number holder under section 216(h)(3). As explained later, Meighan is Michael’s known child under section 202(d)(3) and, therefore, SSR 06-02p does not apply in this case. However, the SSR does demonstrate the value of siblingship DNA tests.

[2]

The facility that performed the test appears to be accredited by the American Association of Blood Banks, which the Department of Health and Human Services has recognized as a reliable accreditation body. See Accreditation of Genetic Testing Labs, U.S. Department of Health and Human Services, http://www.acf.hhs.gov/programs/cse/pol/


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501105028
PR 01105.028 - Missouri - 09/21/2011
Batch run: 09/21/2011
Rev:09/21/2011