This is in response to your August 28, 2001 request for advice regarding whether,
in deciding a claim for inheritance rights under the laws of the State of Maryland,
DNA evidence can be considered to establish paternity that does not include the alleged
father's blood. In addition, you have asked whether the results of the DNA testing
which used the alleged grandmother's blood is acceptable evidence where the results
indicated a relationship probability of 96.01% and 98%.
Based on our review of the information you have provided, our review of our prior
opinion dated August 24, 1999, and our research of the applicable law, we have concluded
that Maryland does not specifically provide for paternity to be established based
on DNA testing which uses the alleged paternal grandparent's blood. However, it is
our opinion that DNA test results which use the blood of the alleged paternal grandparent
can constitute relevant, but not conclusive, evidence of the father's paternity, if
such evidence showed a relationship probability of at least 99.0%. Nevertheless, based
on all the evidence presented in this case, it is our opinion that the DNA evidence
here, without more, is insufficient to establish paternity under Maryland law.
Thomas B~, the Number Holder, died fully insured on July 14, 1989. He was a resident
of Baltimore, Maryland at the time of his death. Ashley S~, a minor child, was born
on August 2, 1987.
Thomas B~ and Verna S~, Ashley's mother, did not live together and were not married.
Ashley's birth certificate lists Thomas B~, the number holder, as her father and Verna
S~ as her mother. Ashely's application for a social security number (NUMI) indicated
Thomas B~ as her father and Verna S~ as her mother. There is no evidence that Thomas
B~ acknowledged, in writing, that he was the father of Ashley S~.
On November 20, 1998, Ms. S~ applied for surviving child's benefits on behalf of Ashley,
on the earnings record of the Number Holder. In support of this application, Ms. S~
submitted the results of DNA testing dated October 26, 1998, which showed a relationship
probability of 96.01% between Ashley and Eva B~, Thomas B~'s mother. Ms. S~ later
submitted the results of DNA testing dated June 13, 2001, which showed a relationship
probability of 98.98% between Ashley and Eva B~.
In addition, as discussed in our memorandum of August 24, 1999, Eva B~ stated that
she “recognized” Ashley S~ as her granddaughter, as the child of her deceased son. In a statement
prepared in February 1999, Verna S~ stated that she believed Thomas B~ admitted to
his friends at the time (apparently of Ashley's birth) that he was the father, but
that she did not know if any of those friends would admit to having such knowledge.
At the same time, she stated that Thomas B~ denied being the father because he wanted
her to have an abortion. Verna S~ stated that she contacted one of Thomas B~'s friends
when she initially applied for child's insurance benefits in 1995, but the friend
denied knowing whether Thomas B~ was the father.
The Social Security Act (Act) provides that an illegitimate child can qualify for
benefits if the child is entitled to 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 [the] insured individual . . . [was]
domiciled at the time of his death.” 42 U.S.C. § 416(h)(2)(A). In the present case, Thomas B~, the alleged father, was
domiciled in the State of Maryland at the time of his death. Therefore, Maryland intestacy
According to the section of the Maryland code that addresses inheritance rights, an
illegitimate child can only be considered to be the child of the father if the father:
Has been judicially determined to be the father in an action brought under the statutes
relating to paternity proceedings;
Has acknowledged himself, in writing, to be the father;
Has openly and notoriously recognized the child to be his child; or
Has subsequently married the mother and has acknowledged himself, orally or in writing,
to be the father.
Md. Est. & Trusts Code Ann. § 1-208(b) (2001). In applying this section, Maryland
courts are attempting to guard against false paternity claims, such as those made
after the putative father is dead and no longer able to give his own version of matters.
Hall v. Coates, 489 A.2d 41 (Md. App. 1985); see also Montgomery v. Schweiker, 523 F. Supp. 1128 (D. Md. 1981). Consequently, absent evidence sufficient to support
a finding that the father established or admitted his paternity during his lifetime,
paternity will generally not be established under this section. Similarly, Maryland
statutes relating to paternity proceedings, which are found at sections 5-1001 through
5-1048, Md. Family Law Code Ann. (2001), generally require proceedings establishing
paternity to have been brought during the decedent's lifetime. The courts have held
that a child meeting any of the requirements of section 1-208 will be viewed as a
legitimate child within the meaning of 42 U.S.C. § 402(d)(3) and thus will be eligible
for social security benefits. Tyler v. Schweiker, 530 F. Supp. 1028 (D. Md. 1981); Davis v. Schweiker, 553 F. Supp. 158 (D. Md. 1982).
In this case, it is clear that subsections (b)(1), (b)(2), and (b)(4) of section 1-208
do not apply. There has been no judicial determination of Ashley's paternity, Thomas
B~ did not acknowledge in writing that he was Ashley's father, and he and Verna S~
were never married. Further, under subsection (b)(3), Ashley can not be determined
to be Thomas B~'s child. There is no evidence in the record establishing that Thomas
B~ “openly and notoriously recognized” Ashley as his child. According to the evidence reviewed in our 1999 memorandum, Eva
B~ is apparently willing to accept Ashley as Thomas B~'s daughter and her granddaughter.
However, she notably does not attest that Thomas B~ ever acknowledged to her that
Ashley was his child. It is our opinion that the evidence is inadequate to establish
that Thomas B~ recognized Ashley as his child.
Another section of the Maryland code dealing with domestic relations issues provides
an alternate means for an illegitimate child to establish paternity and inheritance
rights on the basis of DNA test results. Md. Family Law Code Ann. § 5-1029; Sider v. Sider, 639 A.2d 1076, 334 Md. 512 (1994); Turner v. Whisted, et. al., 607 A.2d 935, 327 Md. 106 (1992). In particular, laboratory reports of
blood tests are admissible into evidence in a paternity proceeding where the testing
is sufficiently extensive to exclude 97.3% of alleged fathers who are not biological
fathers, and the statistical probability of the alleged father's paternity is 97.3%.
Md. Family Law Code Ann. § 5-1029(f)(1)(2). Moreover, undisputed blood test results
which show a statistical probability of the alleged father's paternity of at least
99.0% creates a “rebuttable presumption” of paternity. Md. Family Law Code Ann. § 5-1029(f)(4). Ultimately, the burden of
proof rests with the complainant to establish by a preponderance of the evidence that
the alleged father is the father of the child. Md. Family Law Code Ann. § 5-1027(a).
With regard to your specific question of whether Maryland law would permit Ashley
to establish paternity based on DNA testing of the alleged paternal grandparent's
blood, we were unable to find any controlling Maryland precedent permitting paternity
to be established on this basis. At the same time, we did not find any Maryland case
law or statute which made it impermissible to establish paternity based on a grandparent's
Consistent with the above, it is our position that DNA testing which uses the alleged
grandparent's blood should be considered as relevant and persuasive, but not conclusive,
evidence of paternity if it establishes a relationship probability of 99.0%. We believe
that such evidence could be sufficient to create a parent/child relationship, if additional
evidence were present in the record supporting a relationship between the child and
the alleged father or the mother and the alleged father. Thus, we believe that the
Maryland court would require additional evidence, beyond DNA testing of relatives,
to establish paternity by a preponderance of the evidence.
We believe that the evidence in this case does not conclusively establish a parent-child
relationship. Verna S~ presented evidence that showed a relationship probability between
Ashley and Eva B~ of 96.01% and 98.98%. First, these test results fall short of the
99.0% required to create a “rebuttable presumption” of paternity under the paternity statute. More importantly, although 98.98% is much
closer to the threshold for creating a “rebuttable presumption” under the paternity statute, as stated above, DNA testing of a grandparent is relevant
and persuasive evidence of paternity, but it is not conclusive evidence of paternity.
It is not enough to cure the lack of any other relevant evidence required under Maryland
law. Thus, even if the test results had established a satisfactory grandparent relationship
of 99.0%, Verna S~ presented no other evidence supporting the existence of a relationship
between Ashley S~ and Thomas B~ or herself and Thomas B~. Notably, she provided no
judicial determination of paternity, no written acknowledgment of paternity, no “open and notorious” recognition of paternity, and no subsequent marriage coupled with an oral or written
acknowledgment of paternity. There is no evidence that Thomas B~ and Verna S~ ever
cohabited. Thus, based on these test results which showed at most a 98.98% relationship
probability, the lack of any other evidence of a relationship between Thomas B~ and
Ashley S~ or Verna S~, and the fact that Thomas B~ failed to recognize Ashley as his
child during his lifetime, it is our opinion that Ashley has not established that
she is the child of Thomas B~ under Maryland law.
For the reasons stated above, it is our opinion that a DNA test which uses the blood
of the alleged paternal grandmother can constitute relevant, but not conclusive, evidence
of the father's paternity, if such evidence showed a relationship probability of at
least 99.0%. However, we believe that the evidence in this case is insufficient to
establish the paternity of Thomas B~. Namely, the DNA evidence did not show a statistical
probability of at least 99.0% that Eva B~ was Ashley's grandmother and there was no
other evidence establishing a relationship between Thomas B~ and Ashley S~ or Verna
S~. Significantly, there was no evidence establishing that Thomas B~ recognized Ashley
as his child during his lifetime. Therefore, because Ashley would not be recognized
as Thomas B~'s child under Maryland law, we believe that she should not be determined
to be the child of the Number Holder under section 216(h)(2)(A) of the Act and entitled
to surviving child's insurance benefits.