You have asked for advice as to whether an illegitimate child can establish paternity
and thus be entitled to child's benefits on the record of a deceased number holder
based on the results of DNA testing of the child, the child's mother, and the child's
alleged paternal grandparents which establishes that a biological son of the alleged
grandparents of the child had a 99.99 percent probability of paternity as compared
to an untested, unrelated man. For the reasons detailed below, and based on our review
of the controlling law and facts of this case, we believe that it is reasonable to
conclude that a rebuttable presumption of paternity can be established, which would
allow the child to inherit under Kansas intestacy law. Because the child could inherit
under Kansas intestacy law, he would thus meet the requirements for entitlement under
§ 216(h)(2)(A) of the Social Security Act.
According to the materials you sent with your request, the number holder (NH), J~,
died on January XX, 2001, in the state of Kansas. We assume for purposes of this memorandum
that the NH's legal domicile was also Kansas. On February XX, 2001, C~ applied for
lump sum death benefits on the NH's account. Her application alleged entitlement to
benefits based on her common law marriage to the NH. SSA denied her claim on March
XX, 2001, for lack of proof to support the allegation of a common law marriage. Some
six months after the NH's death, C~ gave birth to a son, whom she named J2~. She did
not, however, include the NH's name on the child's birth certificate. C~ applied for
benefits on the NH's account on behalf of her son alleging that the NH fathered the
child before his death. That application was rejected by the Social Security Administration,
and C~ did not appeal.
Subsequently, on May XX, 2002, C~ again applied for child's benefits on behalf of
her son on the NH's account. In support of her application, she submitted the child's
birth certificate, and the results of DNA testing of her son, the NH's parents, and
herself, which indicated that there was a 99.99 percent probability that a biological
son of the NH's parents had fathered C's son. Field Office personnel confirmed the
accuracy of the DNA results with the laboratory, and also confirmed that the NH had
no brothers who could have fathered the child.
We requested that the Field Office develop the issue more thoroughly, and have received
statements from the NH's former stepfather (with whom the NH maintained a close relationship),
an Army Sergeant under whom both the NH and C~ trained in the Army reserves, C~'s
parents, the NH's former boss, and a friend and co-worker of the NH.
D~ is the NH's former stepfather. He indicated that the NH and he maintained a close
relationship even after he and the NH's mother divorced. The NH lived with D~ before
he moved in with C~. D~ stated that the NH told D~ of C~'s pregnancy about six weeks
into the pregnancy. The NH stated that the child could be his, but he was not sure.
Nevertheless, the NH explained that he intended to move in with C~ and marry her because
he wanted the child to have a father.
J3~ is a First Sergeant in the US Army Reserves. The NH and C~ trained under Sergeant
J3~, and Sergeant J3~ was aware of a romantic relationship between them. The NH told
Sergeant J3~ that C~ was pregnant. He never specifically stated that the child was
his, but he never denied it either. C~ told Sergeant J3~ that she was pregnant by
C~'s parents, R~ and R2~, both stated that C~ and the NH told them that they were
expecting a child together. According to R~ and R2~, C~ and the NH were excited about
the baby, and shared their news with the entire family.
N~ is married to the NH's former boss at the Hill City IGA. N~ stated that C~ came
to the IGA and told N~ that C~ was pregnant and that the NH was the father. N~ also
stated that the NH seemed excited about the pregnancy and talked a great deal about
how he and C~ were going to have a child together.
The NH worked for H~ as a meat cutter at the Hill City IGA. H~ stated that the NH
talked a great deal at work about how he and C~ were going to have a baby. He was
excited about the baby and their wedding plans.
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, the child cannot meet any of the above requirements. The child, who
was born posthumously, never lived with the NH, never received support from the NH,
and was never adjudicated as the child of the NH. The NH and C~ were never married,
and the Social Security Administration rejected her allegation that she was entitled
to the lump sum death benefit based on a common law marriage agreement.
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. See also 20 C.F.R. § 404.355(a)(1)(2001); Program Operations Manual System (POMS) GN 00306.055. 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 Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). If the insured is deceased, the Social Security
Administration applies the law on inheritance rights where the insured had his permanent
home when he died. See 20 C.F.R. § 404.355(b)(1). In this case, you have indicated that the NH was domiciled
in Kansas; therefore, Kansas intestacy law applies.
Kansas intestacy statutes provide that if a decedent has a surviving child or children
and no spouse, all his or her property shall pass to the surviving child. Kan.Stat.Ann
§ 59-506 (2001) Kansas statutes further provide that "children" for purposes of inheritance
issues means "biological children, including a posthumous child; children adopted
by law; and children whose parentage is or as has been determined by the Kansas Parentage
Act or prior law." See Kan.Stat.Ann. § 59-501 (2001).
The Kansas Parentage Act states that a man is presumed to be the father of a child,
if, among other things, the results of blood tests show a probability 97 percent or
higher that the man is the father of the child. See Kan.Stat.Ann § 38-1114(a)(5) (2001). Kansas statutes further provide that the presumption
of paternity can only be rebutted by clear and convincing evidence. See Kan.Stat.Ann § 38-1114(b) (2001). Kansas courts define "clear and convincing evidence"
as "evidence that is certain, unambiguous and plain to the understanding and so reasonable
and persuasive as to cause you to believe it." Hawkinson v. Bennett, 962 P.2d 445, 445 (Kan. 1998). The Kansas Supreme Court further explains that clear
and convincing evidence is "not a quantum of proof, but, rather, a qualify of proof
. . . it is clear if it is certain, unambiguous, and plain to the understanding. It
is convincing if it is reasonable and persuasive enough to cause the trier of fact
to believe it." Ortego v. IPB, Inc., 874 P.2d 1188, 1198 (Kan. 1994). See also Cimmaron Feeders v. Bolle, 7 P.2d 957 (Kan. App. 2001).
Kansas statutory laws do not address a situation where the grandparents and not the
alleged father provided the DNA samples. However, we believe that the laboratory's
wording of the results of the DNA test in this case would be sufficient to establish
at least a rebuttable presumption of paternity. Specifically, the DNA test results
from samples taken from the child, the child's mother, and the child's alleged paternal
grandmother and grandfather indicate that the biological son of the child's alleged
grandparents had a 99.99 percent chance of fathering the child at issue, as compared
to an untested and unrelated man. Because the Field Office personnel confirmed that
the NH was the only son of the alleged grandparents, it follows that the NH had a
99.99 percent likelihood of paternity of the child at issue. Thus, we believe that
a compelling argument could be made that the DNA test results created a rebuttable
presumption of paternity under the controlling statute. Because it is reasonable to
conclude that these facts support a rebuttable presumption of paternity, the child
could inherit under the relevant Kansas intestacy statute.
Additionally, although no Kansas case specifically addresses the use of grandparent
blood tests in paternity actions, Kansas courts generally admit bloods tests to establish
paternity. See Kan.Stat.Ann § 38-1114 (2001) (listing DNA blood tests as one of six ways to establish
a rebuttable presumption of paternity under Kansas law); Hausner v. Blackman, 662 P.2d 1183 (Kan. 1983) (holding that scientifically reliable evidence of alleged
child's father, meeting relative legal evidentiary standards, is admissible in paternity
actions, and admitting blood test results). However, while blood tests are generally
admissible in paternity proceedings, a recent Kansas Court of Appeals case reversed
a lower court decision because the Court had made a decision of paternity based solely
on DNA tests, without regard to other factors relevant to the issue of the child's
paternity. See Ferguson v. Winston, 996 P. 2d 841 (Kan. App. 2000). In Ferguson, the Appeals Court noted that while DNA evidence is "very strong" there was no evidence
to warrant finding that it is conclusive. Instead, the Court noted that at the very
least, the Court adjudicating paternity was required to consider the evidence which
may be in contradiction to the DNA evidence before making a decision on paternity.
Ferguson, 996 P.2d 845.
Other jurisdictions that require "clear and convincing" evidence to establish paternity
have specifically considered DNA comparison of the blood of the putative grandparents
with that of the child to be probative evidence in determining paternity posthumously.
See Tipps v. Metropolitan Life Insurance Company, 768 F. Supp. 577, 580 (S.D. Tex. 1991)(DNA testing of the child and alleged paternal
grandparents provides "clear and convincing" evidence of non-paternity); In re Estate of Wilkins, 707 N.Y.S.2d 774 (January 3, 2000)(DNA testing of NH's parents is adequate to establish
"clear and convincing" evidence of paternity for intestate inheritance); In re Estate of Sandler, 612 N.Y.S.2d 756 (April 26, 1994)(DNA comparison of blood of putative paternal grandparents
with that of child may be performed in effort to provide "clear and convincing" evidence
that is required to establish paternity). See also Sudwischer v. Estate of Hoffpauir, 589 So. 2d 474, 475 (La. 1991)(DNA testing of NH's legitimate daughter and alleged
illegitimate daughter would produce relevant evidence to be considered in refuting
paternity with "clear and convincing" evidence).
In this case, the NH's stepfather stated that the NH had acknowledged C~'s pregnancy,
and stated that the child could be his, but he was not certain. He did state, however,
that he wished to marry C~ and act as the father of the child regardless of his actual
paternity. Additionally, the NH's co-worker and boss also stated that the NH frequently
acknowledged that the child was his and was excited about the prospect of having a
child with C~. The NH's Sergeant in the army also stated that the NH acknowledged
C~'s pregnancy, and while he did not explicitly state that the child was his, he did
not deny it either. Finally, Ms. R~'s parents both stated that the NH and their daughter
were excited about having a baby together, and were making wedding plans. All of these
factors support the rebuttable presumption created by the DNA tests.
Factors which contradict the DNA testing include the fact that C~ did not put the
NH's name on the child's birth certificate, and the fact that the NH admitted to his
former stepfather that he was not certain that the child was his. Additionally, a
court may discount the R~ and R2~'s testimony as biased because they are the parents
In sum, in light of the cases mentioned previously, and also because of the specific
wording of the results from the laboratory, and the other factors detailed above,
we believe that the Kansas courts would consider the DNA test results of the child's
putative grandparents in determining whether paternity is established. Moreover, in
this case, it is reasonable to conclude that a Kansas court would find that the DNA
evidence, combined with the other statements are sufficient to support a rebuttable
presumption of paternity under the Kansas Parentage Act. Furthermore, a court could
reasonably discount the contraindications mentioned previously, as not constituting
clear and convincing evidence sufficient to rebut the presumption of paternity. Because
the child could establish a rebuttable presumption of paternity, it follows that he
could establish his entitlement to inheritance under the relevant Kansas intestacy
statute. Thus, a compelling argument could be made that the child has met the requirements
for entitlement under section 216(h)(2)(A).
Frank V. S~
Chief Counsel, Region VII
By Heather J. S~
Assistant Regional Counsel