Although the Iowa intestacy statute states that inheritance rights are established by either proof of paternity or by recognition by the father, in practice Iowa courts have interpreted the statute to require both proof of paternity and recognition.

In a case in which the claimant was born a month after the number holder's death to the woman with whom the number holder had lived for six years and in which the number holder had claimed the child as his own to several people, Iowa courts would find a parent-child relationship to exist.

You have asked for advice as to whether Kloey H~ is entitled to surviving child's benefits based on the Social Security record of Andrew J. H~. Based upon the evidence presented and for the reasons discussed below, we believe Kloey is entitled to surviving child's benefits.

Factual Background

According to the information you provided, Andrew H~, the deceased number holder, died April 14, 2008. Samantha C~ gave birth to Kloey A. H~ on May 23, 2008. In August 2008, Samantha C~ filed an application for surviving child's benefits on behalf of her daughter, Kloey, alleging that Andrew H~ was Kloey's biological father. Although Samantha and Andrew never married, Samantha stated in the August 2008 application that she and Andrew lived together for six years, until Andrew's death. During that time, she gave birth to a son, Riley H~ (date of birth, July 5, 2004). According to the information you provided, Riley H~ became entitled on Andrew's record after his death.

Andrew's mother signed a statement attesting that she had "no doubt" that Kloey was Andrew's daughter. She indicated that Andrew called her the day he learned Samantha was pregnant and was "very excited." Andrew called his mother again when he discovered the baby would be a girl, and told her they had already picked the baby's name. She further indicated that Samantha and Andrew purchased a new crib and other baby supplies the week before Andrew's death.

According to a joint statement signed by two of Andrew's friends, Andrew made multiple comments that Kloey was his daughter. Andrew "always talked about" how excited he was to be a father again and to have a daughter. He often accompanied Samantha to doctors' appointments.

According to the signed statement of Drew M~, another friend of the deceased number holder, Andrew told him that he was having another baby with Samantha, and if the baby was a girl, they would name her "Chloe." Andrew "always" talked about how excited he was and later told Drew that he had purchased a new crib for the baby and that the baby's room was ready. Drew opined that Kloey "looks just like [Andrew]."

On May 22, 2008, Dr. Paul E. D~ signed a statement attesting that Andrew and Samantha had been together for several years and had previously had a son. He stated that Andrew was very involved with his son and was excited about the birth of his daughter. He also noted that Andrew frequently accompanied Samantha to her appointments.

Samantha submitted two federal tax forms, one filed by Andrew in 2005, claiming Samantha and Riley as dependants, and one filed by Samantha in 2007, claiming Andrew and Riley as dependants. According to the information you provided, Andrew had no income in 2007 because he stayed home to care for Riley. Samantha also submitted documents from the Iowa Department of Human Services, with dates ranging from 2003 to 2008, listing Andrew, Samantha, and Riley as eligible under the Food Assistance Program.

Samantha also submitted Kloey's birth certificate. Although the State of Iowa birth certificate does not list Andrew or anyone else as the father, "H~" was the surname listed for Kloey.

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 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 is "legitimate" or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

A child who is not "legitimate" 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 her parent and was living with or contributing to 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 her parent and that 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, Kloey meets none of the above requirements. Although Andrew and Samantha were living together while Kloey was in utero, it appears that Samantha was supporting the family. Samantha and Andrew were never married. Andrew did not acknowledge in writing that he was expecting a child, he was not decreed by a court to be Kloey's father, nor was he ordered to pay support.

Nevertheless, a child who is not "legitimate" 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 . . . ." Id. A 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).

As Andrew was domiciled in Iowa, Iowa intestacy law applies. The only mention of a child born after the death of an individual in the Iowa statutes is found in Iowa Code Ann. § 633.220 (West, Westlaw through 2008 Sess.) which states:

Heirs of an intestate, begotten before the intestate's death but born thereafter, shall inherit as if they had been born in the lifetime of the intestate and had survived the intestate . . . .

Id. This provision applies to Kloey because she was "begotten" before the death of the deceased number holder, but was born after his death. The next question is, however, whether she is an "heir" under Iowa intestacy law.

Iowa's intestacy statute regarding illegitimate children reads as follows:

Unless the child has been adopted, a biological child inherits from the child's biological father if the evidence proving paternity is available during the father's lifetime, or if the child has been recognized by the father as his child; but the recognition must have been general and notorious, or in writing . . . .

Iowa Code Ann. § 633.222 (West, Westlaw through 2008 Sess.)

The plain language of the Iowa statute suggests heirship may be established upon a showing of paternity or recognition. However, court cases interpreting this statute have required both proof of paternity and "recognition" for heirship. See In re Estate of Evjen v. Novotny, 448 N.W.2d 23, 24 (Iowa 1989) ("Proving paternity, however, is not enough to establish heirship under section 633.222. It must also be shown that the father 'recognized' the child as his own . . . ."); Abkes v. Apfel, 30 F. Supp.2d 1149, 1154 (N.D. Iowa 1998) ("Not only must the child prove paternity, it must also be shown that the father 'recognized' the child as his own.").

Iowa courts have agreed that "recognition" need "not be so universal or so general and public as to have been known by all;" instead, "recognition" means only that "the father admitted or acknowledged the paternity." See Evjen, 448 N.W.2d at 25; Abkes, 30 F. Supp.2d at 1154. Under Iowa law, heirship (i.e., paternity and recognition) must be proven by clear and convincing evidence. See Evjen, 448 N.W.2d at 24; Abkes, 30 F. Supp.2d at 1154.

In Evjen, the Iowa Supreme Court considered the inheritance rights of an illegitimate child whose putative father had died one week after learning of the pregnancy of the mother. See Evjen, 448 N.W.2d 23 (Iowa 1989). The Court concluded that the evidence of paternity was "virtually conclusive," as there was undisputed testimony that the putative father and mother lived together, the mother was not sexually intimate with anyone except the putative father during their period of cohabitation, and the putative father and mother regularly engaged in sexual intercourse without birth control. See id. at 24. The Court found that this evidence "clearly" established paternity. See id. The Court also found evidence sufficient to establish "recognition." See id. at 25. The deceased had known about the mother's pregnancy for only one week and told at least five people that the baby was his. See id. The Court concluded that this constituted "recognition" under the statute and the child was considered an heir under Iowa law. Id. at 26.

In Abkes, an Iowa federal court considered the denial of surviving child's benefits by an administrative law judge. See Abkes, 30 F. Supp.2d at 1154. The Court noted that the mother and deceased number holder had engaged in sexual intercourse during August 1987 and the illegitimate child was born in May 1988. See id. at 1152. However, the deceased's ex-wife and other members of his family reported that the mother was having sexual relations with other men both before and after the time she was intimate with the deceased. See id. Further, although the mother claimed that the deceased number holder was enthusiastic about becoming a father and assumed an active role in the child's rearing, the deceased number holder's ex-wife and family claimed that he continuously denied paternity and showed almost no interest in the child. See id. at 1153. Based on these facts, the Abkes court affirmed the administrative law judge's determination that the mother had failed to prove heirship by clear and convincing evidence.

We believe Samantha has submitted sufficient evidence to prove both paternity and recognition. The facts in this case are equally if not more compelling than those in Evjen. As noted above, the affidavits of record in this case show Samantha and Andrew lived together for six years, until Andrew's death. During that time, their first child was conceived and born. Kloey was also conceived during that time and was born one month after Andrew's death. There is no contention that Samantha was sexually intimate with anyone other than Andrew. See, e.g., In re Wulf's Estate, 48 N.W.2d 890, 892 (Iowa 1951) (Iowa Supreme Court upheld the inheritance rights of an illegitimate child based, in part, on the "notable absence of any claim, or of any evidence tending to prove, that any other man [other than the deceased whose estate was in probate] was, or could reasonably be argued to have been, responsible for [the mother's] pregnancy").

Additionally, affidavits indicate that Andrew had told multiple people that Samantha was expecting and that he was the father. Andrew was excited about the birth of his daughter, helped choose a name for the child, accompanied Samantha to prenatal exams, and helped furnish the baby's room. Further, everyone who submitted an affidavit, including Andrew's mother, expressed their belief that Andrew was the biological father of Kloey. There is no evidence to suggest that Andrew is not Kloey's father.

Based on these facts, we believe that under Iowa law, Kloey could inherit from Andrew and that you could find Kloey entitled to surviving child's benefits on his record.

Kristi S~ III

Acting Chief Counsel, Region VII

By_______________

Kristin B~

Assistant Regional Counsel

In an Iowa case involving a deceased number holder and three children born out of wedlock, affidavits of record showing that the number holder and the children's mother lived together from 1985 or 1986 until November 1995, during which time the children were conceived; and that the mother was not sexually intimate with anyone except the number holder during the ten-year period were submitted. Further, although the birth certificates do not list a father, the children were given the number holder's last name, the number holder and his father were present for the birth of the children, family members stated that the number holder was very possessive of the children and always acknowledged they were his, and that he supported them financially throughout his cohabitation with the mother.

Based on the above information, an Iowa court would find that paternity and recognition (general and notorious or in writing) was established by clear and convincing evidence.

You have asked for advice as to whether Heather D. H~, Donna R. H~, and Dustin D. H~, are entitled to surviving child's benefits based on the Social Security record of Earl H~. Based on our review of the law and the facts as you present them, and for the reasons discussed below, we believe each of these children is entitled to benefits based on Earl H~'s Social Security record.

Factual Background

According to the information you provided, in February 2003 Delilah D~filed applications for surviving child's benefits on behalf of her children, Heather D. H~ (date of birth, February 28, 1991), Donna R. H~ (date of birth, October 25, 1992), and Dustin D. H~ (date of birth, October 25, 1992), alleging that Earl H~, the presumed deceased number holder, was their biological father. Although Delilah and Earl never married, Delilah advised at the time she filed the February 2003 applications that she and Earl had lived together in Iowa from 1985 or 1986 until November 1995, at which time Earl disappeared. During the nearly ten years that Delilah and Earl lived together, Heather, Donna, and Dustin were conceived. Delilah advised that, prior to his disappearance, Earl worked as a truck driver and was a "big drug dealer."

Although Delilah advised that she had not heard from Earl since November 1995, a statement received from Earl's mother in February 2003 indicated that she last saw Earl in Carroll, Iowa, in December 1997. Earl's friend, Sandy M~ similarly advised that she had last seen Earl sometime in 1997. Sandy also reported that Earl was in a position of danger or peril at the time of his disappearance because of his involvement with drugs. Delilah's February 2003 applications were denied because the seven-year duration for presumption of death was not met.

In December 2004, Delilah contacted the Social Security office in Carroll, Iowa, asking about re-filing her applications for child's benefits. Delilah was told she needed to establish that Earl was the biological father of Heather, Donna, and Dustin. According to your memorandum, Delilah submitted the hospital birth certificates for Donna and Dustin. They listed Earl as the father, but they did not include any informant information. Delilah also submitted the State of Iowa birth certificates for all three children. Although the State of Iowa birth certificates do not list Earl or anyone else as the father, "H~" and not "D~ was the last name listed for all three children.

In March 2006, Delilah re-filed her applications for child benefits on behalf of Heather, Donna, and Dustin. Delilah has since submitted affidavits from herself, Phyllis J. V~(Delilah's mother), Donald B. V~ (Delilah's father), Shane H~ (Earl's brother), Cymba F~(Earl's sister), Donna H~ (Earl's mother), and Earl D~ H~ (Earl's father).

According to the April 7, 2006 affidavits of Phyllis J. V~ and Donald B. V~ (Delilah's parents), Earl and Delilah lived together from prior to the conception of Heather until 1995 or 1996. Earl was present at the birth of Heather, Donna, and Dustin, as was Earl's father. Earl was very possessive of the children and he always acknowledged that Heather, Donna, and Dustin were his children. Neither Phyllis nor Donald has heard from Earl since December 1996 or January 1997, and neither believes Earl could be alive and stay away from his children.

According to the April 10, 2006 affidavit of Shane H~ (Earl's brother), Earl and Delilah lived together from prior to the conception of Heather until 1996. Shane saw Earl and Delilah at family gatherings in Oklahoma two or three times yearly. Earl always acknowledged that Heather, Donna, and Dustin were his children, and Earl loved and took care of them. Shane has not heard from Earl since around December 1996. Shane was not in the presence of Delilah when Heather, Donna, and Dustin were conceived, and he denied that he is their father.

According to the April 12, 2006 affidavit of Cymba F~ (Earl's sister), Earl and Delilah lived together from prior to the conception of Heather until 1996. Cymba and her husband visited Earl and Delilah shortly after Donna and Dustin were born. Cymba returned yearly. Earl took care of Donna and Dustin, bathing them and changing diapers. Cymba believes that Heather, Donna, and Dustin are Earl's children. She last heard from Earl in December 1996.

According to the April 14, 2006 affidavit of Donna H~ (Earl's mother), Earl and Delilah lived together from prior to the conception of Heather until 1996. Earl and Delilah attended family gatherings at her home in Oklahoma two or three times yearly. Earl always acknowledged that Heather, Donna, and Dustin were his children, and Earl loved and took care of them. Donna believes without a doubt that Heather, Donna, and Dustin are Earl's children. She noted that Dustin looks just like her husband, Earl's father. Donna attested that her previous statement that she had last seen Earl in December 1997 was error. Based on her review of Christmas pictures, Donna stated that the last time she heard from Earl was January 1997. She believes Earl is dead.

According to the April 15, 2006 affidavit of Earl D~ H~ (Earl's father), Earl and Delilah lived together from prior to the conception of Heather until 1996. Earl and Delilah attended family gatherings at his home in Oklahoma two or three times yearly. Earl D~ also stayed with Earl and Delilah two or three weekends monthly. Earl always acknowledged that Heather, Donna, and Dustin were his children, and he loved and cared for them. He and Earl were present at the birth of Heather, Donna, and Dustin. Earl D~ last heard from Earl in December 1996.

According to the June 7, 2006 affidavit of Delilah, she and Earl lived together from around 1985 until 1995 or 1996. Delilah did not have sexual relations with anyone except Earl during the ten years they lived together, and during that time, Heather, Donna, and Dustin were conceived. According to Delilah, Earl is the biological father of Heather, Donna, and Dustin. Both Earl and his father were present at the births of the children, and Earl loved each of them. Earl, however, left Delilah in late 1995 or early 1996 and moved in with his friends, Jeff and Sandy M~. Earl told Delilah that he had a new girlfriend named "Peaches." After Earl moved out, he quit providing financial support to Delilah and their children. Although Earl had been employed by Bedford Livestock, the owner fired him after learning that he had left Delilah and the children. Delilah has not seen Earl since late 1995 or early 1996. Delilah believes Earl is dead because he could not go for such a long time without contacting his children or his family.

According to a November 27, 1991 "Findings of Fact, Conclusions of Law and Decree" of the Iowa District Court for Carroll County, Delilah was previously married to Lynn G~. They divorced in June 1985, at which time Delilah was awarded custody of their two children. In connection with Lynn's February 25, 1991 petition for modification of the custody arrangement, the Iowa court noted that Delilah was, at that time, living in Carroll, Iowa, with Earl and their child, Heather. The Iowa court also noted that Delilah and Earl met in or around May 1988, and that, in March 1991, Delilah and Earl had applied for state benefits as unemployed parents of Heather. Finally, the Iowa court noted that Earl had three felony convictions for burglary, that Earl drank alcohol excessively, and that Earl had been twice convicted of domestic abuse.

An earnings record shows that Earl's last reported income was in 1995. There is no written acknowledgment by Earl that Heather, Donna, and Dustin are his children, and there is no court order of paternity. Finally, Child Support Recovery was contacted and they have nothing to show paternity, and no court order for child support was ever issued.

Analysis

Initially, we must determine whether the evidence is sufficient to establish that Earl is deceased. If so, we must next establish the exact date of his presumed death.

Determining the fact and date of death is governed by the Social Security regulations found at 20 C.F.R. §§ 404.720, 404.721 (2005). "Preferred" evidence of death includes a certified copy of the public record of death, a statement from a funeral director, an extract from an official report made by a federal agency, or a report from the State Department for foreign deaths. See 20 C.F.R. § 404.720(b). Because the "preferred" means of proving death are not available in this case, 20 C.F.R. § 404.721 applies. That regulation states death may be presumed if there are:

[s]igned statements by those in a position to know and other records which show that the person has been absent from his or her residence and has not been heard from for at least 7 years. If the presumption of death is not rebutted pursuant to § 404.722, we will use as the person's date of death either the date he or she left home, the date ending the 7 year period, or some other date depending upon what the evidence shows is the most likely date of death.

See 20 C.F.R. § 404.721(b). Accordingly, we must determine, based on the evidence presented, whether Earl has been missing for at least seven years, without any rebutting evidence indicating that he might be alive. See 20 C.F.R. § 404.722 (2005) (presumed death after absence of seven years can be rebutted by "evidence that establishes that the person is still alive or explains the individual's absence in a manner inconsistent with continued life rather than death").

The facts as you present them clearly show that Earl has been missing for the requisite seven years. Earl's father, brother, and sister stated that they last heard from Earl in December 1996. Similarly, Delilah's parents both attested that they have not heard from Earl since December 1996 or January 1997. Although Earl's mother stated in February 2003 that she last saw Earl in December 1997, she later advised by affidavit that this statement was erroneous. Based on her review of Christmas pictures, Earl's mother indicated she last heard from Earl in January 1997. Likewise, Delilah stated in her June 2006 affidavit that she last saw Earl in late 1995 or early 1996. Finally, an earnings record shows that Earl's last reported income was in 1995. The only evidence possibly suggesting contact from Earl after January 1997 is the statement from Earl's friend, Sandy M~, who advised that she last saw Earl sometime in 1997. Sandy, however, does not state when during 1997 she last saw Earl. Based on the foregoing, credible evidence shows Earl was last heard from in January 1997, and thus SSA may presume his death.

Accordingly, SSA must next determine the exact date of his death. See Cohn v. Secretary of Health Ed. and Welfare, 477 F. Supp. 54, 56 (D. Neb. 1979) ("The determination of date of death is an independent finding of fact to be made if the person has been presumed dead."). As noted above, there are three different dates that could be used as Earl's presumed date of death: (1) the date of his disappearance; (2) the date ending the seven years after his last appearance; or (3) some other date if there is evidence of some other date. See 20 C.F.R. § 404.721(b).

Under Iowa common law, continued life is presumed until seven years after an individual's disappearance. See Willms v. Schlicht, 266 N.W. 556, 558 (Iowa 1936); McCoid v. Norton, 222 N.W. 390, 391 (Iowa 1928). Nevertheless, an earlier date of death can be established where the evidence shows the individual was in specific peril or exposed to "danger liable to result in death at the time of [his] disappearance." See Willms, 266 N.W. at 558; see also Acosta v. United States, 320 F.2d 382, 384-85 (Ct. Cl. 1963) (presumption of continued life throughout seven-year period of continued absence not overcome absent showing of distinct peril or danger).

SSA's current policy for determining the time of death is similar to the approach used in Iowa. Under Agency policy, the presumed date of death may be moved to the date of disappearance where (1) the missing person encountered some specific peril at or about the time of his disappearance; (2) the missing person was suicidal; (3) the missing person was in such a poor state of health and was so destitute that survival was improbable for any length of time after the disappearance; or (4) the missing person was attentive to his domestic duties, had a home to which he was attached, and suddenly, finally, and without explanation, disappeared. See Program Operations Manual System (POMS) GN 00304.050.6 (Presumption of Death).

On the facts here, we believe it would be reasonable for SSA to use January 31, 1997, as Earl's presumed date of death. The credible evidence indicates Earl has not been heard from since January 1997. The evidence similarly indicates that Earl was dealing drugs at the time of his disappearance. Earl's friend, Sandy M~, indicated in her February 2003 statement that Earl was in a position of danger or peril at the time of his disappearance because of his involvement with drugs. Similarly, Delilah advised that, prior to his disappearance, Earl was a "big drug dealer." Finally, although Earl left Delilah in late 1995 or early 1996, based on the affidavits you have provided, Earl was attentive to his domestic duties prior to his disappearance.

Finally, having determined the presumed date of Earl's death, we must determine whether Heather, Donna, and Dustin are entitled to benefits as the surviving children of Earl.

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 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 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 a 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 a child can be deemed dependent on the insured if he or she 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 a child can be deemed dependent on the insured if he or she 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.

The evidence submitted by Delilah does not satisfy these three tests. As discussed above, Earl was not living with or contributing to the support of Heather, Donna, and Dustin at the time of his presumed death in January 1997. In addition, Delilah and Earl were never married. Finally, Earl never acknowledged in writing that Heather, Donna, and Dustin were his children, nor was he decreed by a court to be the parent of these children or ordered to pay child support.

Nevertheless, an "illegitimate" child who does not meet the above requirements for showing dependency is still entitled to benefits under section 216(h)(2)(A) if he or she 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 . . . ." Id. 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). In this case, because Earl was domiciled in Iowa at the time of his presumed death, we must apply Iowa intestacy laws.

Prior to 1986, Iowa's intestacy statute provided as follows:

Unless he has been adopted, an illegitimate child shall inherit from his natural father when the paternity is proven during the father's lifetime, or when the child has been recognized by the father as his child; but such recognition must have been general and notorious, or else in writing. . .

See Iowa Code Ann. § 633.222 (West 1992). This version of the statute suggests that an illegitimate child could inherit if paternity was proven during the father's lifetime, or if the child had been "recognized" by the father as the father's child. Court cases interpreting this version of the statute, however, focused on the recognition aspect of the statute. See In re Wulf's Estate v. Wulf, 48.W.2d 890 (Iowa 1951); McNeill v. McNeill, 148 N.W. 643 (Iowa 1914); Duffy v. Duffy, 87.W. 500 (Iowa 1901). In 1986, the statute was amended to the following:

Unless the child has been adopted, an illegitimate child inherits from the child's natural father if the evidence proving paternity is available during the father's lifetime, or if the child has been recognized by the father as his child; but the recognition must have been general and notorious, or in writing. . .

See Iowa Code Ann. § 633.222 (West 1992) (emphasis added to show changes). This amendment to the statute suggests that paternity no longer needed to be proven during the lifetime of the father; instead, it was enough that the evidence was "available" during the father's lifetime. Finally, in 1994, the statute was amended to substitute "biological" for "illegitimate" and "biological" for "natural." See Iowa Code Ann. § 633.222 (West 2000). The 1994 amendment represents the current version of the statute, which provides as follows:

Unless the child has been adopted, a biological child inherits from the child's biological father if the evidence proving paternity is available during the father's lifetime, or if the child has been recognized by the father as his child; but the recognition must have been general and notorious, or in writing. . .

See Iowa Code Ann. § 633.222 (West 2000) (emphasis added to show changes).

The plain language of the Iowa statute suggests heirship may be established upon a showing of paternity or recognition. Iowa courts, however, have made clear that both paternity and recognition are required for heirship. See In re Estate of Evjen v. Novotny, 448 N.W.2d 23 (Iowa 1989) ("Proving paternity, however, is not enough to establish heirship under section 633.222. It must also be shown that the father 'recognized' the child as his own . . . ."); Abkes v. Apfel, 30 F. Supp.2d 1149, 1154 (N.D. Iowa 1998) ("Not only must the child prove paternity, it must also be shown that the father 'recognized' the child as his own."). Nevertheless, Iowa courts have agreed that "recognition" need "not be so universal or so general and public as to have been known by all"; instead, "recognition" means only that "the father admitted or acknowledged the paternity." See Evjen, 448 N.W.2d at 25; Abkes, 30 F. Supp.2d at 1154. Under Iowa law, however, heirship (i.e., paternity and recognition) must be proven by clear and convincing evidence. See Evjen, 448 N.W.2d at 24; Abkes, 30 F. Supp.2d at 1154.

In Evjen, the Iowa Supreme Court considered the inheritance rights of an illegitimate child whose putative father had died one week after learning of the pregnancy of the mother. After noting that both paternity and recognition were required for heirship, the Court concluded that the evidence of paternity in the case was "virtually conclusive." See Evjen, 448 N.W.2d at 24. In so concluding, the Court noted that, according to undisputed testimony, the putative father and mother lived together during the time that the child was born, the mother was not sexually intimate with anyone except the putative father during their period of cohabitation, and the putative father and mother regularly engaged in sexual intercourse without birth control. See id. The Court likewise found the evidence sufficient to establish the requisite "recognition." The Court noted that, although the putative father knew of the probable pregnancy for only one week before his death, he had told at least five people that the baby was his. See id. at 25. Based on the testimony of these five people, the Court concluded the putative father had recognized the illegitimate child "openly and notoriously" within the meaning of section 633.222. See id. at 26.

Finally, in Abkes, an Iowa federal court considered the denial of surviving child's benefits by an administrative law judge. Initially, the Court noted that an Iowa state court, in connection with a child-support action, previously held that the mother had "narrowly carried" her burden of establishing paternity based on a preponderance of the evidence standard. See Abkes, 30 F. Supp.2d at 1153, 1155. The Abkes court noted, however, that it was not bound by the state court determination of paternity because proof of heirship required clear and convincing evidence. Turning to the evidence, the Court noted it was undisputed that the mother and deceased number holder had engaged in sexual intercourse during August 1987, and that the illegitimate child was born in May 1988. See id. at 1152. Nevertheless, the Court noted the deceased number holder's ex-wife, as well as other members of his family, reported that the mother was having sexual relations with other men directly before and after the time she was intimate with the deceased number holder. See id. Further, according to the deceased number holder's family, he had no involvement with the mother's prenatal regimen other than possibly noticing that she was pregnant. See id. Shortly after the illegitimate child was born, the mother informed the deceased number holder that he was the father. See id. The mother claimed that the deceased number holder was enthusiastic about becoming a father and assumed an active role in the child's rearing. See id. at 1153. The deceased number holder's ex-wife and family, however, claimed that he continuously denied paternity and showed almost no interest in the child. See id. Based on these facts, the Abkes court affirmed the ALJ's determination that the mother had failed to prove heirship by clear and convincing evidence.

We believe Delilah has submitted sufficient evidence to prove both paternity and recognition. The facts in this case are equally if not more compelling than those in Evjen. As noted above, the affidavits of record in this case show that Earl and Delilah lived together from 1985 or 1986 until November 1995, during which time Heather, Donna, and Dustin were conceived; and that Delilah was not sexually intimate with anyone except Earl during this ten-year period. See, e.g., In re Wulf's Estate, 48 N.W.2d at 892 (Iowa Supreme Court upheld the inheritance rights of an illegitimate child based, in part, on the "notable absence of any claim, or of any evidence tending to prove, that any other man [other than the deceased whose estate was in probate] was, or could reasonably be argued to have been, responsible for [the mother's] pregnancy").

Further, although the birth certificates do not list a father, the children were given the last name "H~," not "D~." The affidavits also indicate that Earl and his father were present for the birth of the children, that Earl was very possessive of the children and always acknowledged they were his, and that Earl loved the children and supported them financially before leaving Delilah in November 1995. Finally, it is worth noting that the evidence submitted in this case was obtained not only from Delilah and her parents, but also from Earl's parents, Earl's sister, and Earl's brother. Further, everyone who submitted an affidavit expressed their belief that Earl is the biological father of Heather, Donna, and Dustin. Cf. Abkes, 30 F. Supp.2d at 1155 (affirming denial of benefits where deceased number holder's family claimed that deceased number holder continuously denied paternity and showed almost no interest in the child).

Accordingly, based on these facts, we believe that, under Iowa law, Heather, Donna, and Dustin could inherit from Earl and would, therefore, be entitled to surviving child's benefits.

Finally, you indicated in the last paragraph of your memorandum that POMS GN 00306.490 (Iowa Intestacy Laws) is inconsistent with Iowa law to the extent Iowa law requires proof of both paternity and recognition. That section of the POMS states, in relevant part, as follows:

A. Child acquires status of child if:

1. a. 

   parents intermarry; or

2. b. 

   (I) father recognizes child and recognition is either general and notorious or in writing; or

3. c. 

   (I) paternity is proven during father's lifetime (a post-mortem judicial order decreeing the paternity of a child meets the requirements of this section provided that the paternity action itself was commenced before the putative father's death); or

4. d. 

   For claims filed on or after 11/27/98, or pending on that date, paternity may be established by an SSA adjudication of paternity before the father's death by a preponderance of the evidence. After his death, paternity and recognition (general and notorious or in writing) must be established by clear and convincing evidence.

See POMS GN 00306.490 (Iowa Intestacy Laws).

Although this POMS section may need clarification, we believe that paragraph A.4 accurately reflects the current status of Iowa law with regard to establishing heirship after the death of a number holder. That is, as discussed above, "paternity and recognition (general and notorious or in writing) must be established by clear and convincing evidence." Please let our office know if you would like our assistance in revising the POMS to avoid any unnecessary confusion.

Frank V. S~ III

Chief Counsel, Region VII

By_______________

Robert M. S~

Assistant Regional Counsel

For heirship, Iowa courts continue to interpret the statute as requiring both proof of paternity and recognition. Preponderance of the evidence is required for paternity, but proof of heirship of illegitimate children requires clear and convincing evidence. Iowa allows the use of blood and genetic test results to establish paternity for support. If test results show that the alleged father is not excluded and that the probability of the alleged father's paternity is 95% or higher, there is a rebuttable presumption of paternity. However, this provision of law addresses only the genetic testing of the mother, child, and alleged father. Where the NH is deceased and had a biological brother(s), there is doubt that the NH's paternity has been established by a preponderance of the evidence based on the genetic test results of the NH 's parents without additional evidence that the brother(s) can be excluded as the child's father.

The term "recognized" means to "admit a fact, truth or validity" of a matter. In the context of heirship, the term means that the father admitted or acknowledged paternity. The recognition does not have to be universal or so general or public as to be known by all.

You have asked for advice as to whether an illegitimate child can be entitled to child's benefits on the record of a deceased number holder based on deoxyribonucleic acid (DNA) test results, as well as statements made by family of the deceased and the child's mother. For the reasons discussed below, we do not believe that Conner is entitled to surviving child's benefits.

Factual Background

The material you sent with your request indicates that Bret E. C~ (deceased number holder) died August 14, 1999. Mary W~, Social Insurance Specialist in the Regional Commissioner's Office, verified on June 26, 2001, that the deceased number holder was domiciled in Iowa at the time of his death. After the funeral of the deceased number holder, Lynn M. F~ discovered that she was pregnant. On May 10, 2000, she gave birth to Conner L. C~ F~.

A genetic testing report dated August 9, 2000, indicates that based upon blood samples of the mother, child, and the paternal grandparents, the deceased number holder was 99.343% likely to be the father of Conner.

On May 3, 2001, Karen C~, the mother of the deceased number holder, signed a statement attesting that she was "absolutely, totally" convinced that Conner was the son of Bret. She indicated she knew Lynn F~ and her son had a close relationship and that they were seeing each other. She indicated that she could see the same physical characteristics in Conner that she saw in Bret. She further stated that because Bret died before Lynn F~ knew she was pregnant Bret did not have an opportunity to acknowledge Conner or make plans for his support.

On May 7, 2001, Sean C~, the brother of the deceased number holder, signed a statement attesting that Bret had been seeing Lynn F~ for "quite sometime." He indicated that Conner's physical appearance left no doubt in his mind that Bret was his father. He further stated that he was not the father of Conner.

On May 10, 2001, Richard D. C~, the father of the deceased number holder, signed a statement attesting that Bret was the father of Conner. He indicated he believed such because he knew that Bret was involved with Lynn F~ before his death; that Conner had a strong physical resemblance to Bret; that as a grandparent there are some things you just know; and that scientific testing had shown such.

On May 13, 2001, Chad C~, the brother of the deceased number holder, signed a statement attesting that he knew that Bret was seeing Lynn F~ for a period of time and that they were together "quite often." He indicated that Conner had many of Bret's traits and that he could see Bret in Conner's eyes. He indicated he had no doubt that Bret was Conner's father. He further stated that he was not the father of Conner.

On her application for child's insurance benefits, dated March 3, 2001, Lynn F~ indicated that she was not living with the deceased number holder at the time of his death and that he did not know about his son.

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 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 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, Conner meets none of the above requirements. The deceased number holder was not living with or contributing to Conner's support at the time of his death. Lynn F~ and the deceased number holder were never married. Although no fault of his own, the deceased number holder did not acknowledge in writing that he was expecting a child, nor was he decreed by a court to be the parent of Conner, or ordered to pay support.

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) 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 . . . ." Id. An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See M~ v. L~, 427 U.S. 495, 514-15 n.17 (1976). In this case, because the deceased number holder was domiciled in Iowa at the time of his death, we therefore apply Iowa intestacy laws.

Iowa has provisions allowing blood and genetic test results in proceedings to establish paternity and obligations for support. See Iowa Code Ann. § 600B.41 (West 2000). In a proceeding to establish paternity, if test results show that the alleged father is not excluded and that the probability of the alleged father's paternity is 95% or higher, there is a rebuttable presumption of paternity. See Iowa Code Ann. § 600B.41 (West 2000). However, section 600B.41 deals only with genetic testing of the mother, child, and alleged father. In this case, while the probability of paternity was determined to be 99.343%, it was based upon genetic testing of the mother, child, and the deceased number holder's parents. The established probability was based upon a finding that the obligatory paternal gene was found in the presumed parents of the deceased number holder. Because the deceased number holder's two biological brothers could also carry the obligatory paternal gene, and there is no statute or case law regarding the establishment of paternity based upon genetic testing of grandparents, further testing of the deceased number holder's brothers may be needed in order to establish by a preponderance of the evidence that the deceased number holder, and not either of his brothers, is the father of Conner. In any event, as the balance of our analysis will show the mere establishment of paternity is not enough in Iowa.

The only mention of a child born after the death of an individual in the Iowa statutes is found in Iowa Code Ann. § 633.220 which states:

Heirs of an intestate, begotten before the intestate's death but born thereafter, shall inherit as if they had been born in the lifetime of the intestate and had survived the intestate. . .

Id. This provision applies to Conner because he was "begotten" before the death of the number holder, but born after his death. The question is, however, whether he is an "heir" under Iowa intestacy law.

Prior to 1986, Iowa's intestacy statute read as follows:

Unless he has been adopted, an illegitimate child shall inherit from his natural father when the paternity is proven during the father's lifetime, or when the child has been recognized by the father as his child; but such recognition must have been general and notorious, or else in writing. . .

Iowa Code Ann. § 633.222 (West 1992). This version of the statute made it clear that the illegitimate child could inherit if paternity was proven during the father's lifetime, or if the child had been "recognized" by the father as the father's child. Court cases interpreting this version of the statute focused on the recognition aspect of the statute. See In re W~'s Estate v. W~, 48.W.2d 890 (Iowa 1951); M~ v. M~, 148 N.W. 643 (Iowa 1914); D~ v. D~, 87.W. 500 (Iowa 1901). In 1986, the statute was amended to the following:

Unless the child has been adopted, an illegitimate child inherits from the child's natural father if the evidence proving paternity is available during the father's lifetime, or if the child has been recognized by the father as his child; but the recognition must have been general and notorious, or in writing. . .

[emphasis added to show changes] Iowa Code Ann. § 633.222 (West 1992). This amendment to the statute made it unclear whether paternity still had to be proven during the lifetime of the father or if it was enough that the evidence was only "available" during the father's lifetime. In 1994, the statute was amended to substitute "biological" for "illegitimate" and "biological" for "natural." See Iowa Code Ann. § 633.222 (West 2000). The 1994 amendment represents the current version of the statute that reads as follows:

Unless the child has been adopted, a biological child inherits from the child's biological father if the evidence proving paternity is available during the father's lifetime, or if the child has been recognized by the father as his child; but the recognition must have been general and notorious, or in writing. . .

[emphasis added to show changes] Iowa Code Ann. § 633.222 (West 2000).

The 1986 amendment could be seen as having changed the meaning of the statute, such that paternity does not have to actually be proven during the lifetime of the deceased as long as the "evidence proving paternity" was "available" during the putative father's lifetime. However, court cases interpreting the statute after 1986 have continued to require both proof of paternity and "recognition" for heirship.

In the Matter of the Estate of E~ v. N~, 448 N.W.2d 23 (Iowa 1989), the putative father died approximately one week after learning of the pregnancy of the mother. The Iowa Supreme Court considered the 1986 version of the statute (which is virtually identical to the current version of the statute). The Court noted that, in Iowa, only a preponderance of evidence is required on the general question of paternity, but proof of heirship of illegitimate children requires clear and convincing evidence. See id. at 24. The Court stated that the evidence was "virtually conclusive" that the child was the child of the deceased, but that "proving paternity is not enough to establish heirship under section 633.222. It must also be shown that the father 'recognized' the child as his own, a difficult matter to prove in this case because of the short time between conception and the father's death." Id. at 24. The Court stated that the term "recognized" does not mean that a child must have been born prior to the father's death. It means to "admit the fact, truth or validity" of a matter. In the context of heirship, the term should be interpreted to mean that the father admitted or acknowledged that paternity. See id. at 25. The recognition need not be universal or so general and public as to be known by all. The evidence in E~ showed that although the deceased had known about the pregnancy for only one week, he had told five people that the mother was pregnant and the baby was his. The Iowa Supreme Court found that this constituted "recognition" for purposes of the statute and the child was considered an heir under Iowa law. See id. In the present case, it appears that the deceased number holder, due to no fault of his own, failed to "recognize" the impending birth of his child.

In A~ v. A~, 30 F. Supp.2d 1149 (N.D. Iowa 1998), the district court affirmed the Commissioner's denial of surviving child's benefits where the child's father died three months after the child's birth. The current version of the Iowa intestacy statute was at issue. The court stated, however: "Not only must the child prove paternity, it must also be shown that the father 'recognized' the child as his own." Id. at 1154 (citing E~, 448 N.W.2d at 24). "In the context of heirship, the term 'recognized' is interpreted to mean that the father 'recognized' the child as his own." Id. at 1154 (citing E~, 448 N.W.2d at 25). The Court found that the child failed to meet his burden of proving heirship by clear and convincing evidence even though a state court had previously found that the mother narrowly carried the burden of proving the decedent's paternity by a preponderance of the evidence. The mother, however, did not identify the decedent as the child's father throughout her entire pregnancy or on the birth certificate, and there were serious conflicts in evidence regarding the decedent's acknowledgement of paternity and his involvement with the child. See id. at 1154-55. The Court stated that, despite proof problems caused by the father's unexpected death, the mother could have proven that the purported father generally and notoriously recognized the child as his own.

See id. at 1157.

Like A~, in the case at issue, there is no evidence that the deceased number holder generally and notoriously recognized Conner to be his child.

Based on our analysis of existing Iowa case law, we believe it is likely that Iowa courts would interpret the statute as requiring both proof of paternity and recognition by the father, even though a literal reading of the statute may suggest otherwise. In this case, although DNA testing did establish a probability of paternity, it was not based upon the testing of the presumed father as required by section 600B.41, but was rather based upon the obligatory paternal gene found in the presumed parents of the deceased number holder. Thus, without further evidence that the deceased number holder's biological brothers can be excluded as the father of Conner, we believe there remains doubt as to whether the deceased number holder's paternity has been established by a preponderance of the evidence. In addition, while it is unfortunate that the deceased number holder died before he was apprised of Lynn F~' pregnancy, the fact remains that this event prevented him from generally and notoriously recognizing that Lynn F~ was expecting his child. On these facts, we believe that under the current interpretation of Iowa law by the Iowa Supreme Court, Conner is not entitled to surviving child's benefits.