TN 53 (07-16)

PR 01115.019 Kansas

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

DATE: May 3, 2016

1. Syllabus

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

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

2. Opinion

ISSUES PRESENTED

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

BACKGROUND INFORMATION

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

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

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

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

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

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

ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

Kristi A. Schmidt

Chief Counsel, Region VII

By: Meghan J. McEvoy

Assistant Regional Counsel

B. PR 08-187 Use of Sibling Deoxyribonucleic Acid (DNA) Testing and Resulting Probability of Siblingship to Establish Paternity in Kansas; R~, Deceased Number Holder, SSN ~

DATE: September 17, 2008

1. SYLLABUS

A Kansas court would consider DNA testing between the claimant and a "known child" of the deceased number holder showing a 99.9909 percent probability that the two are full siblings sufficient to establish a presumption of paternity which can only be rebutted by clear and convincing evidence to the contrary.

Since Kansas law makes no distinction between legitimate and non-legitimate children once paternity is established, the claimant may be entitled to benefits as early as the month of the number holder's death.

2. OPINION

You have asked for advice as to whether a claimant has provided sufficient evidence to establish inheritance rights under Kansas intestacy statutes in order to obtain surviving child's benefits. 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 claimant to inherit under Kansas intestacy law. Because the claimant could inherit under Kansas intestacy law, he would meet the requirements for entitlement under section 216(h)(2)(A) of the Social Security Act.

Factual Background

The memorandum and documentation you sent with your request indicates that S~ filed for surviving child's benefits on behalf of her son, N~. S~ alleged that R~ (deceased number holder) was N~'s biological father. The application for N~ was denied and S~ requested reconsideration. Based on your request we assume that the deceased number holder (NH) died domiciled in Kansas. Computer records show that he died in February 2008. Computer records also show that S~ filed an application for surviving child's benefits on N~'s behalf on February XX, 2008.

N~'s birth certificate does not reflect a father's name. The birth certificate of N~’s alleged full sibling, S2~, identified the deceased NH as the father but it was not signed by him. There was a court order for the deceased NH to pay child support for S2~, and S2~ is currently entitled to surviving child benefits on the NH's record. S~ submitted a DNA Parentage/Kinship Test Report from Genelex Corporation dated April XX, 2008, citing a probability of full-siblingship of 99.9909 percent based upon testing of N~, S2~, and S~ (assuming prior probability equals .50).

S~ also submitted a signed questionnaire in which she stated that she began dating the deceased NH in the summer of 1996 and that they lived together from June 1996 through November 1996. S2~'s birth certificate shows that he was born on May XX, 1997. S~ stated that she continued dating the deceased NH off and on through September 1999. N~'s birth certificate shows that he was born on April XX, 2000. S~ stated that she did not date anyone other than the deceased NH during the 12 months immediately before the month N~ was born. S~ stated that the deceased NH did not contribute to N~'s support, but that he did visit and took N~ to see the deceased NH's parents.

R2~ and J~, the deceased NH's parents, also submitted signed questionnaires in which they both stated N~ was the deceased NH's son. They reported that the deceased NH did not date or live with N~'s mother during the 12-month period immediately before his birth, never lived in the same household as N~, and to their knowledge did not provide support for N~. However, they reported that he did bring N~ to family events such as family reunions, birthday parties, and some holidays.

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. See 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." Based on the information provided, it does not appear that N~ can meet any of these requirements.

However, 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)(2008); 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).

Social Security Ruling (SSR) 06-2p discusses the effect of DNA testing which 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 NH's child. SSR 06-2p states that we will continue to determine whether the claimant could inherit under the applicable state's intestacy statutes. However, we will not review C1's relationship to the NH under State law in determining C2's relationship to the NH when: (1) we have determined that C1 meets one of the federal definitions; (2) there is no reason to question that determination, and (3) DNA test results show a high probability of a sibling relationship between C1 and C2. In effect, we will consider C1 to be the known child of the NH rather than reviewing C1's relationship to the NH under State law. See SSR 06-2p.

In this case, you have indicated that the deceased 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. See Kan. Stat. Ann § 59-506 (2007). 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.

The Kansas Parentage Act states that a man is presumed to be the father of a child, if, among other things, genetic test results indicate a probability of 97 percent or greater that the man is the father of the child. See Kan. Stat. Ann § 38-1114(a)(5) (2007). 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) (2007). The Kansas Supreme Court has defined "clear and convincing evidence" as evidence which is "sufficient to establish that the truth of the facts asserted is 'highly probable.'" See In re B.D.-Y., 187 P.3d 594, 601 (Kan. 2008). See also In re Dennis, 188 P.3d 1, 14 (Kan. 2008); In re X.D., No. 100, 148, slip op. at 3, 2008 WL 4068183 (Kan. 2008). It is an intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt. See In re B.D.-Y. at 598.

The Kansas Parentage Act does not specifically address a situation in which the child's sibling and not the alleged father provided the DNA samples. However, we believe that the results of the DNA test in this case would be considered, and would be sufficient to establish at least a rebuttable presumption of paternity. See Kan. Stat. Ann § 38-1119 (evidence relating to paternity may include…"[a]ny other evidence relevant to the issue of paternity of the child"). In this case, DNA test results from samples taken from the N~, N~'s mother, and S2~, N~'s alleged sibling, indicate that the probability of full-siblingship is 99.9909 percent. The requirements of SSR 06-2p are met in this case, so S2~ is considered the "known child" of the NH. Additionally, under Kansas law, the court order for S2~'s support is sufficient in and of itself to create a rebuttable presumption of paternity for S2~. Thus, we believe that a compelling argument could be made that the DNA test results showing a 99.9909 percent chance that N~ and S2~ are full siblings creates a rebuttable presumption of paternity for N~. Consequently, the child could inherit under the relevant Kansas intestacy statute.

Additionally, although no Kansas case specifically addresses the use of sibling DNA tests in paternity actions, Kansas courts generally admit genetic test results to establish paternity. See Kan. Stat. Ann §§ 38-1114, 38-1118, 38-1119 (2007); 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). Other jurisdictions have noted the possible relevance of sibling blood and DNA testing.

Additionally, DNA testing of a deceased father's parents has been allowed in other jurisdictions as evidence to prove paternity. We believe that a Kansas court would consider the DNA testing submitted in this case as evidence of paternity.

While genetic 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 at 845.

Here, there is no contrary evidence of paternity. Although there was no father's name listed on N~'s birth certificate, the deceased NH's name was listed on S2~'s birth certificate, the deceased NH had a court order to support S2~, and DNA testing shows a 99.9909 percent chance that N~ and S2~ are full siblings. Additionally, the deceased NH's parents completed written questionnaires in which they both stated that N~ was the deceased NH's son, that their son never denied N~ was his child, and that their son brought N~ to family events such as family reunions, birthday parties, and some holidays. S~ reported that she did not date anyone else in the 12-month period prior to N~'s birth, that the deceased NH took N~ to visit his parents, and that N~ continued to visit the deceased NH's parents. We believe that the DNA test results, in conjunction with the other evidence presented, would be sufficient to establish a rebuttable presumption of paternity under the Kansas Parentage Act. Accordingly, the child could establish entitlement to inheritance under Kansas intestacy law.

You also asked whether N~ is entitled to retroactive benefits. The Act provides that a child of an individual who dies fully or currently insured shall be entitled to child's insurance benefits for each month, beginning with the first month in which such child meets the criteria specified in Section 202(d)(1). See Social Security Act § 202(d)(1)(i). The regulations also state that if a claimant meets all the requirements for entitlement while the application is in effect, he may receive benefits from the first month that he meets all the requirements for entitlement. See 20 C.F.R. §§ 404.620(a)(1). If the claimant met all of the requirements for surviving child's benefits prior to the date of his application, the claimant may be paid up to six months of retroactive benefits. See 404.621(a)(2)(2008).

SSA policy provides that statutes which legitimize a child tend to be given retroactive effect, whereas statutes which confer inheritance rights without legitimizing the child generally operate only prospectively. See SSR 85-17; POMS 00306.055. Kansas law makes no distinction between legitimate and illegitimate children. See Kan. Stat. Ann. § 38-1112 ("The parent and child relationship "extends equally to every child and to every parent, regardless of the marital status of the parents."). See also POMS GN 00306.085 (In Kansas a child is considered to be legitimate from the date of birth). Furthermore, Kansas law provides that once paternity has been established, the father may be ordered to reimburse the mother the expenses of support from the child's date of birth. See Kan. Stat. Ann. § 38-1121(e). See also Brakey v. Howe, 84 P.3d 1047, 2004 WL 376417 at *5 (Kan. App. 2004) (unpublished decision) (citing Skillett v. Sierra, 53 P.3d 1234, 1240-41 (Kan. App. 2002) (unpublished decision) ("Kansas courts have held that after the father's paternity has been adjudicated, the mother of the child is entitled to reimbursement from the father for his share of the amount of child support that would have been computed from the date of birth.").

In this case, the deceased NH died in February 2008, the same month in which S~ filed N~'s application for surviving child's benefits. Accordingly, N~ first met all of the requirements for benefits as of February 2008, and he can be entitled to benefits as of that date.

Conclusion

In sum, we believe that Kansas courts would consider the sibling DNA test results. We also believe that such test results, in conjunction with the other evidence presented, would be sufficient to establish a rebuttable presumption of paternity under the Kansas Parentage Act. Because the child could establish entitlement to inheritance under the relevant Kansas intestacy statute, he has met the requirements for entitlement under section 216(h)(2)(A). Additionally, the child met the requirements for entitlement as of February 2008 and he can be entitled to benefits as of that date.

Kristi A. S~
Acting Chief Counsel, Region VII
By Kristin L. E~
Assistant Regional Counsel

C. PR 04-119 Use of Grandparent Deoxyribonucleic Acid (DNA) Testing Establish Paternity in Kansas. J~, Deceased Number Holder, SSN ~

DATE: August 12, 2002

1. SYLLABUS

The results of DNA testing of a 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, establishes a rebuttable presumption of paternity. This presumption would allow the child to inherit under Kansas intestacy law.

2. OPINION

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.

Factual Background

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 the NH.

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.

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, 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 of C~.

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

D. PR 03-125 Use of Grandparent Deoxyribonucleic Acid (DNA) Testing and Resulting Probability of Grandparentage to Establish Paternity in Kansas; E~, Deceased Number Holder, SSN ~

DATE: April 25, 2003

1. SYLLABUS

Kansas courts would find that DNA test results of the child claimant's putative paternal grandparents, combined with the other statements in this case, are sufficient to support a rebuttable presumption of paternity under the Kansas Parentage Act. Therefore, the child could inherit under Kansas intestacy law.

2. OPINION

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 99.97 percent probability of paternity compared to an untested, unrelated man. For the reasons detailed below, and 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, she would meet the requirements for entitlement under section 216(h)(2)(A) of the Social Security Act.

Factual Background

The memorandum you forwarded with your request indicates that the number holder (NH), E~, died on November XX, 1999, in Lawrence, Kansas. We assume for purposes of this memorandum that the NH's legal domicile was also Kansas. On August XX, 2002, P~ filed for a lump sum death payment and child's benefits on behalf of her daughter, A~. P~ alleged that the NH was the biological father of A~. P~ alleged that she found out she was pregnant the day the NH died; therefore, he had no knowledge of the pregnancy. P~ and the NH were not married when A~ was conceived or anytime thereafter. The NH never provided support nor acknowledged paternity in writing.

The materials you forwarded also include a document submitted by D~, the NH's mother. On February XX, 2003, D~ stated that she and W~ had only one child together, the NH. P~ provided a statement indicating that she found out she was pregnant the day the NH passed away and she did not have a chance to tell the NH that he was the father. P~ also submitted a DNA Test Report from the Laboratory Corporation of America dated June XX, 2002. The reported stated: “Using the genetic markers found in the testing of the alleged biological grandparents, their biological son is estimated to have a probability of paternity of 99.97%, as compared to an untested, unrelated man.” In a letter addressed to P~ dated June XX, 2002, the Kansas Department of Social and Rehabilitation Services stated that based on genetic testing, “E~ has been found to be the father of the minor child.”

We requested that the Field Office develop the issue more thoroughly, and have received a statement dated April XX, 2003, from D~. D~ stated that she accepted A~ as her granddaughter from her deceased son. We also received a “birth certificate” from Lawrence Memorial Hospital which lists only P~ as A~'s parent.

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 section 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, none of the above requirements can be met by A~. A~, who was born posthumously, never lived with the NH, never received support from the NH, and was never adjudicated as a child of the NH. Furthermore, P~ and the NH were never married and the NH never acknowledged in writing that A~ was his child.

An “illegitimate” child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) 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)(2002); 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 of 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 99.97 percent chance of fathering the child at issue, as compared to an untested and unrelated man. Because D~ stated that she and W~ had only one son, the NH, it follows that the NH had a 99.97 percent likelihood of paternity of the child at issue. Thus, we believe that a compelling argument could be made that the DNA test results create 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. Here, there is no contrary evidence of paternity.

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).

With respect to the other evidence provided, the Kansas Department of Social and Rehabilitation Services found the NH to be A~'s father based on the DNA testing. Additionally, the NH's mother has accepted A~ as her granddaughter. The only factor which contradicts the DNA test is the fact that P~ did not include the NH's name on the A~'s birth certificate from Lawrence Memorial Hospital. However, this does not appear to be an official birth certificate and does not, we believe, constitute sufficient evidence to rebut the presumption of the NH's paternity.

In addition to surviving child's insurance benefits, the information you provided indicates that P~ also applied for a lump-sum death payment on behalf of A~. Section 202(I)(2) of the Social Security Act states that a lump-sum death payment can be paid . . . in equal shares to each person who is entitled (or would have been so entitled had a timely application been filed), on the basis of the wages and self-employment income of such insured individual, to benefits under subsection (d) of this section for the month in which occurred such individual's death.

No payment shall be made to any person under this subsection unless application therefor shall have been filed, by or on behalf of such person (whether or not legally competent), prior to the expiration of two years after the date of death of such insured individual, or unless such person was entitled to wife's or husband's insurance benefits, on the basis of the wages and self-employment income of such insured individual, for the month preceding the month in which such individual died.

See also 20 C.F.R. § 404.392 (2002). In this case, the NH's date of death is November XX, 1999. P~ applied for the lump-sum death payment on August XX, 2002, seven months after the expiration of the two year period proscribed by the statute. There are no applicable exceptions. Because the application was not timely filed, A~ is not entitled to receive a lump-sum death payment under section 202(I) of the Social Security Act.

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 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. Because the child could establish a rebuttable presumption of paternity, it follows that she could establish her 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). A~ is not, however, entitled to a lump sum death payment.

Frank V. S~ III
Chief Counsel, Region VII

By Christina Y. M~
Assistant Regional Counsel

E. PR 90-003 Establishing Paternity After the Death of the Number Holder - K~ ~

DATE: March 30, 199U

1. SYLLABUS

KANSAS - Under the Kansas Parentage Act, evidence relating to paternity may include results of a blood test showing the statistical probability of the alleged father's paternity. (K~, Region VII - (S~) to ARC, Prog. Oper. and Systems, 04/27/90)

2. OPINION

K~ died December XX, 1988. After he died, DNA fingerprinting and HLA blood testing were done to prove relationship to S~ (S~). In a November XX, 1989, journal entry of the Domestic Department of the District Court of Sedgewick County, Kansas, the court determined that K~ was the natural father of S~ and that paternity had been established pursuant to K.S.A. § 38-1119 of the Kansas Determination of Parentage Act by the use of DNA finger printing and HLA blood testing. The court further ordered that the administrator of the K~ Estate should make no objection to S~ being determined to be the sole heir of K~. You have asked whether the decision by the District Court of Sedgewick County is sufficient to establish inheritance rights for S~. The answer is yes.

As noted in your memorandum, SSA is not always bound to adopt as controlling for Social Security benefit purposes the ruling of a state court. See GC opinion re Melvin B. D~ , March 5, 1987. Because of prior agreements between the parties, it appears that the issue of paternity was not genuinely contested before the state court by parties with opposing interests. Thus, we believe you would be justified to conclude that the decision of the state court does not, in and of itself, require SSA to accept the determination that S~ is the child of K~ for the purpose of determining eligibility to receive Social Security benefits. That conclusion, however, does not resolve the issue.

Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h) (2) (A), provides, in pertinent part, that in determining whether an applicant is the “child” of an insured individual, the Secretary must apply that law which 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.

For the purposes of intestate succession, K.S.A. § 59-501 provides that: (a) children means biological children, including a posthumous child; children adopted as provided by law; and children whose parentage has been determined under the Kansas parentage act or prior law.[1]

The DNA fingerprinting and HLA blood testing showed that K~ was either the biological father, or a close relative of the biological father of S~. Under the Kansas Parentage Act, K.S.A. § 38-1119, evidence relating to paternity may include results of a blood test showing the statistical probability of the alleged father's paternity. The court established inheritance rights for S~ after determining that K~ paternity of S~ had been established pursuant to K.S.A. § 38-1119 of the Kansas Parentage Act. Therefore, S~ is considered the “child” of K~ under § 216(h)(2) (A) of the Social Security Act.

You have also asked whether S~ can be entitled to benefits effective with the date of the number holder's death or only with the date of the court decision. Although we have been unable to find statutes or regulations dealing directly with this issue, we believe it would be reasonable to find him entitled to benefits as of the time of K~’s death, rather than the date of the court order.

 


Footnotes:

[1]

. . The evidentiary standards of state intestacy laws are summarized at Programs Operations Manual Systems (POMS) GN00306.135. The section for Kansas states that: "child acquires status of child if: . . . (3)(I) paternity has been determined in father's lifetime' in any action or proceeding involving that question in a court of competent jurisdiction." This section is based upon K.S.A. § 59-501. In 1985, however, K.S.A. § 59-501 was amended and no longer requires that the determination of paternity be within the father's lifetime.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501115019
PR 01115.019 - Kansas - 07/29/2016
Batch run: 07/29/2016
Rev:07/29/2016