PR 01115.024 Massachusetts

A. PR 10-049 Scott W. C~, SSN ~ Paternity based on DNA testing

DATE: January 15, 2010

1. SYLLABUS

Under Massachusetts domestic relations laws, paternity must be proven by clear and convincing evidence. While no Massachusetts statute or court decision addresses DNA testing using the blood of an alleged full sibling rather than the alleged father to establish paternity, it is reasonable to determine a Massachusetts court would find a rebuttable presumption of paternity in a case the claimant’s mother has submitted DNA test results indicating a statistical probability of 99.995% that the claimant and an acknowledged son of the deceased number holder are full siblings, and thus share the same father.

2. OPINION

This is in response to your request for an opinion regarding whether DNA testing using the mother’s and alleged full sibling’s blood can establish paternity under Massachusetts law, for the purposes of establishing entitlement to surviving child’s benefits on the record of the alleged father. For the reasons discussed below, we believe that the DNA evidence in this case is sufficient to establish a parent-child relationship.

BACKGROUND

The claimant, Kelsea D. P~, was born on June 24, 1992, in Springfield Massachusetts. The alleged father, Scott W. C~, died on September 8, 1996, while domiciled in North Attleboro, Massachusetts. On April 27, 2006, the claimant’s mother, Michelle R. P~, filed an application for surviving child’s benefits on the alleged father’s record. As evidence of paternity, the Michelle P~ submitted the Kelsea’s birth certificate (which does not name a father) and a letter purportedly written by Scott C~ in which he claimed to be Kelsea’s father. The letter’s authenticity was challenged by several of Scott C~’s relatives, each of whom submitted a statement claiming that Scott had told them that Kelsea was not his daughter. The field office denied the claim on April 2, 2007.

On February 3, 2008, Michelle P~ filed a new application, this time submitting a DNA test report from DNA Diagnostics Center dated June 27, 2007. The report indicates that the blood of Michelle P~, Kelsea P~, and Kelsea’s alleged full sibling were tested. The alleged full sibling, Jacob P. C~, is the son of Michelle P~ and the acknowledged son of Scott C~. According to the report, the probability that Jacob and Kelsea are full siblings is 99.995%, and the likelihood that they share the same biological mother and father is 24,938 to 1. Jacob received child’s benefits and survivor’s benefits on Scott C~’s record until April 2008, when Jacob turned age 18.

ANALYSIS

A child is eligible for survivor’s benefits if the child could inherit the numberholder’s personal property as the numberholder’s natural child under State inheritance laws. See 20 C.F.R. § 404.355(a)(1). Where the numberholder is deceased, the Agency looks to the laws of the State where the numberholder had his permanent home when he died. See 20 C.F.R. § 404.355(b)(1), (4). The alleged father, Scott C~, died while domiciled in North Attleboro, Massachusetts, thus Massachusetts law applies to Kelsea P~’s claim.

Under Massachusetts intestacy laws, a child is entitled to inherit a share of her parent’s personal property. See Mass. Gen. Laws c. 190, §§ 2-3. Where the child was born out of wedlock, the intestacy laws deem the child the heir of the deceased father if (1) the father acknowledged paternity during his lifetime, or (2) the father has been adjudged the father of the child. See Mass. Gen. Laws c. 190, § 7. For purposes of eligibility for survivor’s benefits, the Agency does not require a court determination of paternity; instead, the Agency will decide paternity using the standard of proof that the State court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2); POMS GN 00306.055(A)(3).

Under Massachusetts domestic relations laws, paternity must be proven by clear and convincing evidence. See Mass. Gen. Laws c. 209C, § 7. In a typical paternity case, upon a showing that sexual intercourse occurred between the mother and alleged father during the probable period of conception, the court will order the mother, child, and alleged father to undergo a genetic marker test. See Mass. Gen. Laws c. 209C, § 17. The results are admissible provided that there is sufficient evidence of intercourse during the probable period of conception. See id. Courts have found a mother’s testimony that intercourse occurred sufficient. See G.E.B. v. S.R.W., 661 N.E.2d 646, 655-656 (Mass. 1996); A.B. v. C.D., 690 N.E.2d 839, 842 (Mass. App. Ct. 1998). Results indicating a statistical probability of paternity of 97% or greater create a rebuttable presumption of paternity. See id.; POMS GN 00306.520. All other evidence relevant to the issue of paternity is admissible, see Mass. Gen. Laws c. 209C, § 16(g), including blood tests not ordered by the court pursuant to Mass. Gen. Laws chapter 209C, section 17, see Department of Revenue v. Sorrentino, 557 N.E.2d 1376, 1379 (Mass. 1990).

No Massachusetts statute or court decision addresses DNA testing using the blood of an alleged full sibling rather than the alleged father to establish paternity. Nevertheless, it is our opinion that a Massachusetts court would find a rebuttable presumption of paternity in this case. First, Kelsea P~’s mother, Michelle P~, has submitted a statement to the Agency claiming that she had sexual intercourse with the alleged father, Scott C~, during the probable period of Kelsea’s conception. Such evidence sufficiently supports a finding that sexual intercourse occurred. See G.E.B., 661 N.E.2d at 655-656; A.B., 690 N.E.2d at 842. Second, Michelle P~ has submitted DNA test results indicating a statistical probability of 99.995% that Kelsea P~ and Jacob C~ (the acknowledged son of Scott C~) are full siblings, and thus share the same father. Such a probability would satisfy the Massachusetts statutory requirement of 97% to create a rebuttable presumption of paternity if based on DNA testing of the child and alleged father. See Mass. Gen. Laws c. 209C, § 17. That a court did not order the DNA test would not prohibit consideration of the test results. See Sorrentino, 557 N.E.2d at 1379.

Although Mass. Gen. Laws chapter 209C, section 17 addresses only genetic marker testing of the alleged father, not of an alleged full sibling, a court likely would give the DNA test results in this case similar consideration to genetic marker test results using the alleged father’s blood. For certain, a court would admit the evidence, as all relevant evidence is admissible in a paternity proceeding. See Mass. Gen. Laws c. 209C, § 16(g). Further, courts in states with statutes similar to Mass. Gen. Laws chapter 209C, section 17 have ordered blood testing of alleged full siblings, the results of which would be admitted in evidence in paternity proceedings. See Sudwischer v. Estate of Hoffpauir, 589 So.2d 474, 475-476 (La. 1991); M.A. v. Estate of A.C., 643 A.2d 1047, 1047-1048, 1050 (N.J. Super. Ct. Ch. Div. 1993). Other courts also have ordered blood testing or admitted and relied on blood test results of alleged full siblings or alleged paternal grandparents in paternity proceedings. See Tipps v. Metropolitan Life Ins. Co., 768 F. Supp. 577, 580 (S.D. Tex. 1991); Lach v. Welch, No. FA930063955, 1997 WL 536330, at *5-*7 (Conn. Super. Ct. Aug. 15, 1997); In re Estate of Wilkins, 707 N.Y.S.2d 774, 778 (N.Y. Sur. Ct. 2000); see also Drake ex rel. Atwood v. Apfel, No. Civ. 300CV1540H, 2001 WL 705784, at *4 (N.D. Tex. June 18, 2001) (ruling that ALJ erred by failing to apply California statutory presumption of paternity for DNA test results with paternity index of 100 or greater to DNA testing using alleged paternal grandmother’s blood). The only court that rejected such blood test results did so in limited circumstances, where the applicable State statute specifically required that a blood test be administered to the alleged father to determine paternity. See Congdon ex rel. Congdon v. Sullivan, No. 92-2514, 1992 WL 211536, at *3-*4 (E.D. Pa. Aug. 24, 1992).

For the reasons above, we believe that the DNA testing using the blood of Kelsey P~’s alleged full sibling, Jacob C~, indicates results that create a rebuttable presumption of paternity in this case. Some of Scott C~’s relatives submitted letters to the Agency contesting paternity, which potentially could rebut the presumption of paternity. We were unable to find authority in Massachusetts regarding what evidence would rebut a presumption of paternity. Still, given the strong statistical probability of paternity in this case, we believe that a Massachusetts court would rule that the letters do not rebut the presumption of paternity created by the DNA test results. Furthermore, the child’s mother was not married at the time of conception or birth, and no father is named on the child’s birth certificate. Thus, there does not appear to be any other evidence that might rebut the presumption of paternity in this instance. Cf. POMS PR 01120.011. Accordingly, the DNA test results clearly and convincingly prove paternity in this case.

CONCLUSION

The claimant, Kelsea P~, is entitled to survivor’s benefits on the record of her alleged father, Scott C~. The DNA test results indicating that Scott C~’s acknowledged son, Jacob, is Kelsea’s full sibling likely would create a rebuttable presumption of paternity under Massachusetts law that would not be rebutted by the letters submitted by Scott C~’s relatives disputing paternity.

Robert J. T~
Regional Chief Counsel By:
______________________
Nicole A. M~
Assistant Regional Counsel

B. PR 07-151 Massachusetts Accreditation Requirements of Labs Performing DNA Testing Number Holder: Jerome M. S~, SSN ~

DATE: June 8, 2007

1. SYLLABUS

Under Massachusetts law, to be acceptable evidence to assist in establishing a parent-child relationship a DNA test must be "of a type generally acknowledged as reliable and performed by a laboratory approved by an accreditation body designated by the federal Secretary of Health and Human Services pursuant to Title IV, Part D of the Social Security Act."

In this specific case, the laboratory does meet this standard and the test showing a 99.98 percent probability of paternity constitute a rebuttable presumption of paternity when combined with statements from the mother and the number holder that sexual intercourse between them took place during the time when the child was conceived.

Since the statements were not obtained until December 2005, the child's eligibility to benefits will be restricted to that month.

2. OPINION

This is a revised opinion in response to your request for an opinion as to whether the DNA evidence submitted in this case was from an accredited DNA testing facility, whether the evidence shows that the child claimant is the child of the number holder for purposes of entitlement to child's insurance benefits (CIB) on the number holder's record, and if so, the date that entitlement began. For the reasons set forth below, we believe that the DNA evidence is from an accredited facility and that the evidence submitted establishes that the child is the number holder's child for CIB entitlement purposes. Further, we believe that the child met all the requirements for entitlement to CIB as of December of 2005 and is entitled to benefits beginning December of 2005.

FACTUAL BACKGROUND

The child, Christy L. B~, was born on March 25, 1991. The child's mother is Alice F. B~ (né J~). No father is listed on the child's birth certificate. The number holder, Jerome M. S~, was approved for disability benefits on December 11, 1998. On his application for benefits, the number holder did not list any children. The child's mother and the number holder were never married, nor is there any evidence that the mother was married to anyone else at or near the time of the child's birth. DNA test results dated October 19, 2004, from Genelex Corporation, show a 99.98 percent probability that the number holder is the child's father. On December 16, 2005, the child's mother applied for child's insurance benefits (CIB) on the child's behalf on the record of the number holder. On December 19, 2005, the number holder verbally acknowledged to the Agency that he is the child's father. The number holder further stated that he did not know Christy was his child until the DNA test was performed.

Analysis

Section 202(d)(1) of the Social Security Act ("the Act") provides for the payment of CIB to a child of an insured individual entitled to disability insurance benefits if the child has filed an application for CIB and was unmarried, under age 18 (or age 19 if a full-time student), and dependent upon the insured individual at the time the application. 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350 (2006); POMS RS 00203.001.A.1.

For purposes of CIB eligibility under the Act, a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e). If a putative father (here, the number holder) is living and never married the child's mother, the child claimant's status as the child of the putative father is governed by either section 216(h)(3)(B) of the Act, 42 U.S.C. § 416(h)(3)(B), or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status under section 216(h)(3)(B) of the Act, the child claimant must show one of the following: (1) that the putative father acknowledged in writing that the child claimant is his daughter, (2) that a court decreed the putative father to be the father of the child claimant, (3) that the putative father had been ordered to contribute to the support of the child claimant or (4) that the putative father is the father based on evidence satisfactory to the Commissioner and was living with or contributing to the support of the child claimant at the time the claimant's application for benefits was filed. We understand that you have not been able to obtain a written statement from the number holder acknowledging that he is the child's father, and we are aware of no evidence which otherwise satisfies the requirements of section 216(h)(3)(B) of the Act.

To establish her status as the child of the number holder under section 216(h)(2)(A) of the Act, the child claimant must show that she would be entitled to a child's share of the number holder's intestate personal property under the law of the state in which the number holder was domiciled at the time the child's application was filed. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(3); POMS GN 00306.001.C.2.a. According to the evidence provided, the number holder was domiciled in Massachusetts at the time that the child's application was filed. There is no evidence suggesting that the number holder's domicile was other than Massachusetts. We conclude that the number holder was domiciled in Massachusetts at the time the child's application was filed and that the Massachusetts law of intestate succession applies in determining whether the child could inherit from the number holder's intestate estate for purposes of establishing a parent-child relationship under section 216(h)(2)(A) of the Act. See 42 U.S.C. 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001.C.2.a.

The Massachusetts intestacy statute entitles a child of an individual who dies intestate to inherit a share of the decedent's intestate personal property. MASS. GEN LAWS, ch. 190, §§ 2-3. Where paternity has been established under Massachusetts law, a child born out of wedlock is entitled to inherit from the intestate estate of her father. MASS. GEN LAWS, ch. 190, § 7. Under Massachusetts law, for purposes of establishing inheritance rights, paternity of a child born out of wedlock may be shown by an acknowledgment of paternity by the purported father or by a judicial determination that the child is the child of the purported father. Id. Pursuant to 20 C.F.R. § 404.355(b)(2)(2005), SSA adjudicators will not require an actual judicial determination but will decide paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. In Massachusetts, paternity must be proven by clear and convincing evidence. MASS. GEN LAWS, ch. 209C, § 7; Dep't. of Revenue v. Roe, 577 N.E. 2d 323, 325 (Mass. App. Ct. 1991); POMS GN 00306.520. A paternity determination is made on a case-by-case basis weighing the probative value of the evidence against the likelihood of fraud. See MASS. GEN LAWS, ch. 209C § 16; POMS 00306.520. The evidence can include blood or genetic marker tests, testimony and all other relevant evidence. MASS. GEN LAWS, ch. 209C, §§ 16-17.

Pursuant to MASS. GEN LAWS, ch. 209C, § 17, for purposes of establishing paternity, a DNA test must be "of a type generally acknowledged as reliable and performed by a laboratory approved by an accreditation body designated by the federal Secretary of Health and Human Services pursuant to Title IV, Part D of the Social Security Act." We have confirmed with the Boston region's Office of Child Support Enforcement, Administration for Children and Families, U.S. Department of Health and Human Services, that it has designated the American Association of Blood Banks (AABB) as an approved accreditation body. The AABB's website (<http://www.aabb.org/content>) lists the Genelex Corporation as an accredited parentage testing facility. Therefore, the lab meets the accreditation requirements of Chapter 209C, § 17.

As you discussed, paternity may be established based on the October 18, 2004 DNA test results, which show a 99.98 percent probability of paternity. Under POMS GN 00306.520.A, "[b]lood or genetic marker tests with a probability of 97.0% or greater will constitute a rebuttable presumption of paternity provided that the petitioner has presented evidence that sexual intercourse occurred between the mother and the [putative father] during the period of time that the child was conceived." See MASS. GEN LAWS, ch. 209C, § 17 (DNA evidence is not admissible "absent sufficient evidence of intercourse between the mother and the putative father during the period of probable conception"). Here, there is no evidence to rebut the presumption of paternity established by the DNA test results. To the contrary, the number holder acknowledges paternity. The only remaining element to be satisfied under the statute is the requirement of sufficient evidence of sexual intercourse during the probable period of conception. This requirement may be satisfied based on a preponderance of the evidence. GEB v. SRW, 661 N.E.2d 646, 655 (Mass. 1996). Statements by the mother or putative father are sufficient evidence that sexual intercourse occurred between them during the period of probable conception. See MASS. GEN LAWS, ch. 209C, § 8 (paternity may be established by testimony of the mother or putative father that sexual intercourse occurred between them during the probable period of conception); GEB v. SRW, 661 N.E.2d at 656-57 (mother's testimony constituted evidence of sexual intercourse and paternity); AB v. CD, 690 N.E.2d 839,842 (Mass. App. Ct. 1998) (mother's testimony constituted evidence of sexual intercourse). Assuming that you find statements made by the mother in the child's application, or by the putative father in your contact with him, to constitute "sufficient evidence" of sexual intercourse under the statute, we believe that this evidence plus the DNA test results would constitute clear and convincing evidence of paternity under Massachusetts law.

As you also mentioned, paternity may also be established here based solely on the number holder's verbal acknowledgement of paternity on December 19, 2005. See POMS GN 00306.520.A.2 (a child acquires the status of child under the Act if the purported father formally or informally acknowledges the child as his child); see also Higgins v. Ripley, 450 N.E.2d 186 (Mass. App. Ct. 1983) (written acknowledgment of paternity is not necessary in order for an illegitimate child to inherit from her father); Paquette v. Koscotas, 421 N.E.2d 483, 484 (Mass. App. Ct.) (same). We agree that based on the number holder's verbal statement, you would be justified in concluding that the child claimant's status as the natural child of the number holder for purposes of intestate succession has been established under Massachusetts law, especially given the additional evidence of the DNA test results presented, as discussed above.

Since we conclude that paternity can be established based on the evidence provided, the only remaining issue is when the child first became entitled to CIB. A child is entitled to CIB once she satisfies all the entitlement factors. See § 202(d)(1) of the Act; 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a). All of the requirements for the child's entitlement to benefits were met in this instance by December of 2005, at which time the parent-child relationship was established and the child applied for benefits. While the DNA evidence is from October of 2004, Massachusetts law also requires "sufficient evidence" of sexual intercourse. Assuming such evidence is established in the mother's or number holder's statements, such evidence would not appear to have been provided until December of 2005, either through the statements of the mother in the child's December 16, 2005 application or through the number holder's statements on December 19, 2005. Alternatively, if sufficient evidence of sexual activity has not been provided, the number holder's acknowledgment of paternity on December 19, 2005 alone would be sufficient to establish paternity. Thus the earliest date by which the child met all the eligibility requirements so as to be entitled to benefits was December of 2005.

CONCLUSION

The DNA evidence submitted is from an accredited facility. We believe that based on the evidence provided, the Massachusetts courts would find that the child could inherit from the number holder as his child under the Massachusetts intestacy statute. Therefore, we believe that the child qualifies as the number holder's child for purposes of entitlement to CIB. The child would be entitled to benefits beginning in December of 2005.

C. PR 06-343 Establishing Paternity Based on DNA Testing

DATE: September 25, 2006

1. SYLLABUS

In Massachusetts, DNA testing of the deceased number holder's brothers, showing a 98.487% likelihood that the number holder is the claimant's father as opposed to any randomly selected individual does not establish a presumption of paternity.

Additional evidence ruling out the number holder's brothers for possible paternity and evidence of the number holder's support of the child could also be used along with the DNA results to establish the number holder's paternity by the State's clear and convincing standard.

2. OPINION

This Memorandum is in response to your inquiry regarding whether Chrisopher A. M~ can establish that he is entitled to Child's Insurance Benefits ("CIB") on the account of Joseph B~, based on genetic testing of Joseph B~'s relatives. Specifically, you asked whether paternity can be established, under Massachusetts law, based on the DNA test results from Peter and John B~, Joseph's brothers. For the reasons discussed below, we advise that additional development is needed before entitlement can be established.

BACKGROUND

On January 9, 1994, Jan M~ (hereinafter "the mother") gave birth to Christopher M~ (hereinafter "the child") in Beverly, Massachusetts. The child's birth certificate lists no father's name. On November 18, 2004, Joseph B~ (hereinafter "the wage earner") died in Beverly, Massachusetts.

On December 16, 2004, the mother filed, on behalf of the child, an application for CIB as the child of the wage earner Joseph B~, SSN ~. According to the mother, she first met the wage earner in 1970 and began an intimate relationship with him in 1991, which lasted until his death. The mother claims that the wage earner knew that he had a son with her, and supported the child with weekly payments of five hundred dollars, in addition to money for extra expenses and health insurance.

According to the mother, the wage earner agreed to sign an acknowledgment of paternity but did not have the opportunity to do so before he was hospitalized. She claims that once the wage earner entered the hospital, his family did not want her to see him and he then refused to sign the acknowledgment. On March 28, 2005, the claim for benefits was disallowed due to failure to establish paternity.

On September 9, 2005, the mother submitted genetic test results as evidence of paternity. The test was performed in July 2006, by Identigene of Houston, Texas, which is a company accredited by the American Association of Blood Banks. The blood samples were taken from the child, and from Peter B~ and John B~, who, according to the test report, are the wage earner's brothers. The test results indicated that the probability of the wage earner being the father of the child was 98.487% as compared to an untested randomly chosen man from the Caucasian population. As further evidence of paternity, the mother submitted a judgment from the Massachusetts Probate and Family Court, dated April 24, 2006, incorporating a stipulation of paternity which stated that Joseph B~ was the biological father of Christopher M~.

DISCUSSION

The Social Security Act ("the Act") provides for the payment of insurance benefits to a child of an individual who dies when fully or currently insured if the child has filed an application for CIB, is unmarried, under the age of 18, and was dependent upon such individual at the time of death. 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350 (2006); POMS RS 00203.001. The Act provides that in determining whether a claimant is the child of an insured person, the Commissioner of Social Security ("Commissioner") shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state where the insured individual is domiciled at the time of application or death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001(C).

If the claimant is unable to prove that he is the child of the wage earner under state intestacy law, he can still prove that he is a child of the wage earner in several ways. A claimant can be deemed to be the deceased wage earner's child upon proof that, prior to the wage earner's death, one of the following conditions was met: (1) the wage earner and claimant's mother went through a ceremony, which would have resulted in a valid marriage between them except for a legal impediment; (2) the claimant is the wage earner's natural child and wage earner acknowledged in writing that the child was his natural child, was decreed by a court to be the child's parent, or was ordered by a court to contribute to the child's support; or (3) the wage earner is shown by evidence satisfactory to the Commissioner to have been the child's father, and he was living with or contributing to the child's support at the time of his death. 42 U.S.C. 416(h)(2)-(3); 20 C.F.R. 404.355(a)(2)-(4).

According to the record, the wage earner was a resident of Massachusetts at the time of his death, and there is no evidence suggesting that the wage earner's domicile was other than Massachusetts. We conclude that the wage earner was domiciled in Massachusetts at the time of his death and that Massachusetts' law of intestate succession is applicable in determining the child's status as the descendant of the wage earner for purposes of the Act. See 42 U.S.C. 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(C)(1)(a).

For a person born out of wedlock to establish child status, Massachusetts law provides that, in the absence of the father's acknowledgment of paternity or marriage to the mother, the child must obtain a judicial determination that he is the child's father. M.G.L. 190 § 7; POMS GN 00306.520. Under Social Security Regulations, however, a claimant is not required to obtain an adjudication of paternity, but rather, the Agency may decide paternity using the standard of proof that the state court would use as the basis for a paternity determination. 20 C.F.R. § 404.355(b)(2); POMS 00306.520.

Here, the record contains evidence of a paternity judgment, however, SSA is not bound by this decision because the issue of paternity was not contested before the Court. On April 24, 2006, the Probate and Family Court of Massachusetts decreed that the wage earner was the biological father of the child, based on a stipulation by the mother and the wage earner's family and estate. The Commissioner must accept a state court determination in a proceeding in which she was not a party, only when, among other things, the issue of paternity has been genuinely contested before the court by parties with opposing interests. SSR 83-37c (adopting the holding in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)). Here, the wage earner was deceased at the time of the Probate and Family Court decision and it does not appear that any party contested the issue on behalf of the estate of the wage earner. Thus, the issue of paternity was not genuinely contested before the state court by parties with opposing interests. Furthermore, Massachusetts requires that a voluntary acknowledgment of paternity must be signed by both parents, M.G.L. 209C § 11, and an administrator of an estate is not statutorily granted powers to sign such acknowledgement, M.G.L 195 § 5A. See also Woodward v Commissioner, 760 N.E.2d 257, 272 (Mass. 2002). Accordingly, SSA is not bound by this paternity judgment and paternity must, therefore, be decided under the standard of proof imposed by Massachusetts courts in a paternity determination.

To be adjudicated as a lineal descendant under Massachusetts law, a child born out of wedlock must prove paternity by clear and convincing evidence. M.G.L 209C § 7; Dep't. of Revenue v. Roe, 577 N.E. 2d 323, 325 (Mass. App. Ct. 1991); POMS GN 00306.520. A paternity determination is made on a case-by-case basis weighing the probative value of evidence against the likelihood of fraud. See M.G.L. 209C § 16; POMS 00306.520. The evidence can include blood or genetic marker tests, testimony, and "all other evidence relevant to the issue of paternity." M.G.L. 209C §§ 16, 17. When there is evidence of sexual intercourse between a child's mother and a putative father, the report of the results of a DNA test of the putative father, "including a statistical probability of the putative father's paternity based upon such test, shall be admissible in evidence." M.G.L. 209C § 17. If the genetic test indicates a statistical probability of paternity of 97% or greater, there shall be a rebuttable presumption that the putative father is the father of the child. M.G.L. 209C § 17. In this case, the mother stated that she had an intimate relationship with the wage earner during the relevant time period, thus, the wage earner's DNA results can be admissible. However, since the wage earner's relatives were tested in his stead, it appears the child cannot take advantage of the presumption.

We have found no Massachusetts case law specifically addressing the probative value of genetic testing of the putative father's relatives for purposes of establishing paternity. The Supreme Judicial Court of Massachusetts has recognized, however, that "sophisticated modern testing techniques now make the determination of genetic paternity accurate and reliable." Woodward v Commissioner, 760 N.E.2d 257, 272 (Mass. 2002). The DNA tests would likely be considered as "other evidence" relevant to a determination of paternity. See M.G.L. 209C § 16. Additionally, courts in other states have found that the genetic test results of the putative father's relatives are admissible and even reliable evidence in paternity proceedings. See e.g., In the Matter of the Estate of Robert N~, 748 N.Y.S.2d 654 (N.Y. 2002) (finding that DNA testing on the putative father's twin, along with other evidence, constituted clear and convincing evidence of paternity); Pace v. Louisiana State Employees Retirement System, 648 So.2d 1302, (La. 1995) (stating, "courts have found that DNA tests performed on the deceased putative father's relatives can determine paternity posthumously"). Considering the above information, it is our opinion that Massachusetts courts would admit genetic testing of the wage earner's relatives to establish paternity.

Here, according to the testing laboratory, the genetic test was performed on the wage earner's siblings, Peter and John B~, and showed a 98.487% probability that wage earner was the biological father of the child. However, upon further examination of the record, there appears to be some evidence that Peter and John B~ are, in fact, the wage earner's adult sons, and thus, possible half-siblings of the child. The Agency should attempt to obtain additional information in order to clarify the relationship between the wage earner and Peter and John B~. If, after investigation, it is determined that Peter and John B~ are the wage earner's adult sons, the DNA test results should not be considered because the results were based on the assumption that Peter and John B~ were the full biological siblings of the wage earner. Thus, the mother would need to submit additional evidence obtained from the laboratory to reflect any change in the results, based on the fact that Peter and John B~ are the adult sons of the wage earner. Importantly, the results should still indicate the probability that the wage earner was the father of the child.

If the DNA results are correct as they stand, or if the laboratory findings maintain a 97% or greater probability of paternity even if Peter and John are the children of the wage earner, the Agency must still obtain additional information. First, you must eliminate any possibility that a paternal relative fathered the child. The DNA test results conclude that the probability is 98.487% that the wage earner is the father of the child in comparison to an untested, randomly chosen man from the population, apparently leaving the possibility that a related man is as statistically likely as wage earner to be the child's father. See Armstead v. Md. 673 A.2d 221, 228 n.8 (Md. 1993) (noting that twins will have identical DNA, and siblings or other close relatives will have "substantial similarities" in their DNA.). You should obtain statements from knowledgeable persons (the mother, Peter and John B~, or other family members) about whether the mother had sexual intercourse with the wage earner's male relatives during the relevant time period. Second, the mother has stated that the wage earner supported the child with at least five hundred dollars per week, health insurance, and extra expenses; therefore, you should obtain evidence substantiating this claim. After the additional evidence is secured, and if it appears to establish that no other relative is likely to be the father, then, it is our opinion, that the child would be considered the wage earner's child under Massachusetts law.

Even if the above information fails to satisfy the clear and convincing evidence standard under Massachusetts law, the child will still be able to establish the wage earner's paternity under the alternative Federal standards. As discussed above, under Federal standards a claimant may be eligible for benefits as the child of a wage earner if evidence satisfactory to the Commissioner shows the wage earner to have been the child's father, and he was living with or contributing to the child's support at the time of his death. 42 U.S.C. 416(h)(3); 20 C.F.R. 404.355(a)(4); POMS GN 306.100. Evidence of the wage earner's support, along with the additional information in the record including the DNA test results showing 98.487% probability of paternity, provide sufficient evidence to show that the wage earner was the child's father and contributing to his support at the time of his death.

CONCLUSION

Based on the above discussion, we recommend further development to determine if Christopher M~ is eligible for child's benefits. Specifically, we recommend that you clarify the relationship between the wage earner and John and Peter B~, for purposes of the DNA test results. Once the test results are confirmed to be based on accurate information and remain at a 97% or greater probability of paternity, we recommend that you take the following steps. Given the clear and convincing standard for paternity under Massachusetts law, you should attempt to obtain additional evidence to eliminate any likelihood that a paternal relative of the wage earner fathered the child. Additionally, you should request evidence from the mother showing the wage earner's support of the child. If the evidence establishes that no other male relative fathered the child, then this evidence, along with the DNA test results and evidence of support, could constitute clear and convincing evidence to establish paternity under Massachusetts law for purposes of intestate succession. Moreover, this evidence can also establish sufficient evidence of paternity under the Act, thus entitling the child to benefits.

D. PR 06-333 Establishing Paternity Based on DNA Testing

DATE: September 25, 2006

1. SYLLABUS

Under Massachusetts law, DNA testing of the deceased number holder's brothers showing a 97 percent or higher probability that one of the three brothers fathered our claimant must be combined with evidence that neither of the living brothers could have fathered the child and that the number holder supplied support to the child in order to establish the parent-child relationship under the clear and convincing standard.

2. OPINION

This Memorandum is in response to your inquiry regarding whether Chrisopher A. M~ can establish that he is entitled to Child's Insurance Benefits ("CIB") on the account of Joseph B~, based on genetic testing of Joseph B~'s relatives. Specifically, you asked whether paternity can be established, under Massachusetts law, based on the DNA test results from Peter and John B~, Joseph's brothers. For the reasons discussed below, we advise that additional development is needed before entitlement can be established.

BACKGROUND

On January 9, 1994, Jan M~ (hereinafter "the mother") gave birth to Christopher M~ (hereinafter "the child") in Beverly, Massachusetts. The child's birth certificate lists no father's name. On November 18, 2004, Joseph B~ (hereinafter "the wage earner") died in Beverly, Massachusetts.

On December 16, 2004, the mother filed, on behalf of the child, an application for CIB as the child of the wage earner Joseph B~, SSN ~. According to the mother, she first met the wage earner in 1970 and began an intimate relationship with him in 1991, which lasted until his death. The mother claims that the wage earner knew that he had a son with her, and supported the child with weekly payments of five hundred dollars, in addition to money for extra expenses and health insurance.

According to the mother, the wage earner agreed to sign an acknowledgment of paternity but did not have the opportunity to do so before he was hospitalized. She claims that once the wage earner entered the hospital, his family did not want her to see him and he then refused to sign the acknowledgment. On March 28, 2005, the claim for benefits was disallowed due to failure to establish paternity.

On September 9, 2005, the mother submitted genetic test results as evidence of paternity. The test was performed in July 2006, by Identigene of Houston, Texas, which is a company accredited by the American Association of Blood Banks. The blood samples were taken from the child, and from Peter B~ and John B~, who, according to the test report, are the wage earner's brothers. The test results indicated that the probability of the wage earner being the father of the child was 98.487% as compared to an untested randomly chosen man from the Caucasian population. As further evidence of paternity, the mother submitted a judgment from the Massachusetts Probate and Family Court, dated April 24, 2006, incorporating a stipulation of paternity which stated that Joseph B~ was the biological father of Christopher M~.

DISCUSSION

The Social Security Act ("the Act") provides for the payment of insurance benefits to a child of an individual who dies when fully or currently insured if the child has filed an application for CIB, is unmarried, under the age of 18, and was dependent upon such individual at the time of death. 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350 (2006); POMS RS 00203.001. The Act provides that in determining whether a claimant is the child of an insured person, the Commissioner of Social Security ("Commissioner") shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state where the insured individual is domiciled at the time of application or death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001(C).

If the claimant is unable to prove that he is the child of the wage earner under state intestacy law, he can still prove that he is a child of the wage earner in several ways. A claimant can be deemed to be the deceased wage earner's child upon proof that, prior to the wage earner's death, one of the following conditions was met: (1) the wage earner and claimant's mother went through a ceremony, which would have resulted in a valid marriage between them except for a legal impediment; (2) the claimant is the wage earner's natural child and wage earner acknowledged in writing that the child was his natural child, was decreed by a court to be the child's parent, or was ordered by a court to contribute to the child's support; or (3) the wage earner is shown by evidence satisfactory to the Commissioner to have been the child's father, and he was living with or contributing to the child's support at the time of his death. 42 U.S.C. 416(h)(2)-(3); 20 C.F.R. 404.355(a)(2)-(4).

According to the record, the wage earner was a resident of Massachusetts at the time of his death, and there is no evidence suggesting that the wage earner's domicile was other than Massachusetts. We conclude that the wage earner was domiciled in Massachusetts at the time of his death and that Massachusetts' law of intestate succession is applicable in determining the child's status as the descendant of the wage earner for purposes of the Act. See 42 U.S.C. 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(C)(1)(a).

For a person born out of wedlock to establish child status, Massachusetts law provides that, in the absence of the father's acknowledgment of paternity or marriage to the mother, the child must obtain a judicial determination that he is the child's father. M.G.L. 190 § 7; POMS GN 00306.520. Under Social Security Regulations, however, a claimant is not required to obtain an adjudication of paternity, but rather, the Agency may decide paternity using the standard of proof that the state court would use as the basis for a paternity determination. 20 C.F.R. § 404.355(b)(2); POMS 00306.520.

Here, the record contains evidence of a paternity judgment, however, SSA is not bound by this decision because the issue of paternity was not contested before the Court. On April 24, 2006, the Probate and Family Court of Massachusetts decreed that the wage earner was the biological father of the child, based on a stipulation by the mother and the wage earner's family and estate. The Commissioner must accept a state court determination in a proceeding in which she was not a party, only when, among other things, the issue of paternity has been genuinely contested before the court by parties with opposing interests. SSR 83-37c (adopting the holding in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)). Here, the wage earner was deceased at the time of the Probate and Family Court decision and it does not appear that any party contested the issue on behalf of the estate of the wage earner. Thus, the issue of paternity was not genuinely contested before the state court by parties with opposing interests. Furthermore, Massachusetts requires that a voluntary acknowledgment of paternity must be signed by both parents, M.G.L. 209C § 11, and an administrator of an estate is not statutorily granted powers to sign such acknowledgement, M.G.L 195 § 5A. See also Woodward v Commissioner, 760 N.E.2d 257, 272 (Mass. 2002). Accordingly, SSA is not bound by this paternity judgment and paternity must, therefore, be decided under the standard of proof imposed by Massachusetts courts in a paternity determination.

To be adjudicated as a lineal descendant under Massachusetts law, a child born out of wedlock must prove paternity by clear and convincing evidence. M.G.L 209C § 7; Dep't. of Revenue v. Roe, 577 N.E. 2d 323, 325 (Mass. App. Ct. 1991); POMS GN 00306.520. A paternity determination is made on a case-by-case basis weighing the probative value of evidence against the likelihood of fraud. See M.G.L. 209C § 16; POMS 00306.520. The evidence can include blood or genetic marker tests, testimony, and "all other evidence relevant to the issue of paternity." M.G.L. 209C §§ 16, 17. When there is evidence of sexual intercourse between a child's mother and a putative father, the report of the results of a DNA test of the putative father, "including a statistical probability of the putative father's paternity based upon such test, shall be admissible in evidence." M.G.L. 209C § 17. If the genetic test indicates a statistical probability of paternity of 97% or greater, there shall be a rebuttable presumption that the putative father is the father of the child. M.G.L. 209C § 17. In this case, the mother stated that she had an intimate relationship with the wage earner during the relevant time period, thus, the wage earner's DNA results can be admissible. However, since the wage earner's relatives were tested in his stead, it appears the child cannot take advantage of the presumption.

We have found no Massachusetts case law specifically addressing the probative value of genetic testing of the putative father's relatives for purposes of establishing paternity. The Supreme Judicial Court of Massachusetts has recognized, however, that "sophisticated modern testing techniques now make the determination of genetic paternity accurate and reliable." Woodward v Commissioner, 760 N.E.2d 257, 272 (Mass. 2002). The DNA tests would likely be considered as "other evidence" relevant to a determination of paternity. See M.G.L. 209C § 16. Additionally, courts in other states have found that the genetic test results of the putative father's relatives are admissible and even reliable evidence in paternity proceedings. See e.g., In the Matter of the Estate of Robert N~, 748 N.Y.S.2d 654 (N.Y. 2002) (finding that DNA testing on the putative father's twin, along with other evidence, constituted clear and convincing evidence of paternity); Pace v. Louisiana State Employees Retirement System, 648 So.2d 1302, (La. 1995) (stating, "courts have found that DNA tests performed on the deceased putative father's relatives can determine paternity posthumously"). Considering the above information, it is our opinion that Massachusetts courts would admit genetic testing of the wage earner's relatives to establish paternity.

Here, according to the testing laboratory, the genetic test was performed on the wage earner's siblings, Peter and John B~, and showed a 98.487% probability that wage earner was the biological father of the child. However, upon further examination of the record, there appears to be some evidence that Peter and John B~ are, in fact, the wage earner's adult sons, and thus, possible half-siblings of the child. The Agency should attempt to obtain additional information in order to clarify the relationship between the wage earner and Peter and John B~. If, after investigation, it is determined that Peter and John B~ are the wage earner's adult sons, the DNA test results should not be considered because the results were based on the assumption that Peter and John B~ were the full biological siblings of the wage earner. Thus, the mother would need to submit additional evidence obtained from the laboratory to reflect any change in the results, based on the fact that Peter and John B~ are the adult sons of the wage earner. Importantly, the results should still indicate the probability that the wage earner was the father of the child.

If the DNA results are correct as they stand, or if the laboratory findings maintain a 97% or greater probability of paternity even if Peter and John are the children of the wage earner, the Agency must still obtain additional information. First, you must eliminate any possibility that a paternal relative fathered the child. The DNA test results conclude that the probability is 98.487% that the wage earner is the father of the child in comparison to an untested, randomly chosen man from the population, apparently leaving the possibility that a related man is as statistically likely as wage earner to be the child's father. See Armstead v. Md. 673 A.2d 221, 228 n.8 (Md. 1993) (noting that twins will have identical DNA, and siblings or other close relatives will have "substantial similarities" in their DNA.). You should obtain statements from knowledgeable persons (the mother, Peter and John B~, or other family members) about whether the mother had sexual intercourse with the wage earner's male relatives during the relevant time period. Second, the mother has stated that the wage earner supported the child with at least five hundred dollars per week, health insurance, and extra expenses; therefore, you should obtain evidence substantiating this claim. After the additional evidence is secured, and if it appears to establish that no other relative is likely to be the father, then, it is our opinion, that the child would be considered the wage earner's child under Massachusetts law.

Even if the above information fails to satisfy the clear and convincing evidence standard under Massachusetts law, the child will still be able to establish the wage earner's paternity under the alternative Federal standards. As discussed above, under Federal standards a claimant may be eligible for benefits as the child of a wage earner if evidence satisfactory to the Commissioner shows the wage earner to have been the child's father, and he was living with or contributing to the child's support at the time of his death. 42 U.S.C. 416(h)(3); 20 C.F.R. 404.355(a)(4); POMS GN 306.100. Evidence of the wage earner's support, along with the additional information in the record including the DNA test results showing 98.487% probability of paternity, provide sufficient evidence to show that the wage earner was the child's father and contributing to his support at the time of his death.

CONCLUSION

Based on the above discussion, we recommend further development to determine if Christopher M~ is eligible for child's benefits. Specifically, we recommend that you clarify the relationship between the wage earner and John and Peter B~, for purposes of the DNA test results. Once the test results are confirmed to be based on accurate information and remain at a 97% or greater probability of paternity, we recommend that you take the following steps. Given the clear and convincing standard for paternity under Massachusetts law, you should attempt to obtain additional evidence to eliminate any likelihood that a paternal relative of the wage earner fathered the child. Additionally, you should request evidence from the mother showing the wage earner's support of the child. If the evidence establishes that no other male relative fathered the child, then this evidence, along with the DNA test results and evidence of support, could constitute clear and convincing evidence to establish paternity under Massachusetts law for purposes of intestate succession. Moreover, this evidence can also establish sufficient evidence of paternity under the Act, thus entitling the child to benefits.

E. PR 01-108 Status of Child Conceived through Artificial Insemination Ronald F~, SSN ~

DATE: February 8, 2001

1. SYLLABUS

A minor child conceived through artificial insemination with the NH's donated sperm has the status of NH's child under Massachusetts law, since the NH acknowledged paternity of the child in writing on his RIB application, in addition to the child's mother's statements about the circumstances of conception.

2. OPINION

This is in response to your memo requesting our opinion whether a minor child conceived through artificial insemination can be found entitled to child's benefits on the account of the wage earner father who donated the sperm. We believe the child here can be found entitled to such benefits.

The materials you forwarded indicate that the wage earner, Ronald F~, has applied for retirement benefits. In his application, the wage earner stated that he had a son, Merce J~. Merce was born on September 15, 1994 in New York City, where he lives with his mother, Kim J~. Merce's birth certificate does not contain the name of the father. Mr. F~ and Kim J~ have provided a signed statement indicating that Ronald was Merce's father, and that the parties had agreed to conceive a child by artificial insemination. Ronald stated that he recognizes Merce as his son, and Merce has been told that Ronald is his father. Mr. F~ and the child have regular contact every couple months.

Ms. J~ was unmarried at the time of the child's conception and birth, and has remained unmarried since then. Mr. F~ was married to Linda T~ at the time of the child's conception and birth, and remains married to her at the present time. Mr. F~'s spouse has submitted a signed statement indicating that her husband donated sperm nine times over a period of four months beginning in the fall of 1993. Linda was present about six of the times when Kim L~ picked up the sperm. In January 1994, Ms. L~ informed the F~'s that she was pregnant. Ms. L~ apparently inseminated herself, and no doctor or medical facility was involved.

Mr. F~ lived in Massachusetts at all times relevant to a determination in this case, including at the time of the child's birth and at the time the application for benefits was filed. Merce can qualify for benefits on his account if the courts of Massachusetts would find that he could inherit the wage earner's intestate personal property as his child. Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416 (h)(2)(A); 20 C.F.R. § 404.355(a)(1).

Massachusetts law provides that a child acquires the status of child if the alleged father formally or informally acknowledged the child as his child. Mass. Gen. Laws Ann. ch. 190, § 7; POMS GN 00306.520. We have indicated in prior opinions that the acknowledgement need not be in writing, and may be established by the oral declarations or conduct of the father, as long as the acknowledgement is clear and unambiguous. Opinion re: Charles R~ (Feb. 3, 1983); Opinion re: Arthur G~ (Oct. 25, 1982). Court cases have recognized that acknowledgement may be informal. Lowell v. Kowalski, 380 Mass. 663, 405 N.E. 2d 135 (1980) ("Where paternity is conceded, we see no justification for denying the right of a child to inherit from his or her natural father."); Houghton v. Dickinson, 196 Mass. 389, 82 N.E. 481 (1907); Wrenn v. Harris, 503 F. Supp. 223 (D. Ma. 1980).

Whether the wage earner acknowledged a child is a determination to be made on a case-by-case basis, weighing the probative value of all the evidence. Here, in addition to the statements of the child's mother, the wage earner has unambiguously acknowledged paternity of Merce in writing. The wage earner's spouse has also stated that he has acknowledged paternity. In these circumstances, we believe the courts of Massachusetts would conclude that the child could inherit the intestate estate of the wage earner. Accordingly, the child is entitled to child's benefits on Mr. F~'s account.

F. PR 84-003 Jeff B~, ~ Oral Acknowledgment of Paternity — Massachusetts Law

DATE: January 20, 1984

1. SYLLABUS

PARENT AND CHILD — FEDERAL DEFINITION OF "CHILD"— ACKNOWLEDGMENT OF PATERNITY — MASSACHUSETTS

Current Massachusetts statutory law provides that upon acknowledgment of paternity an illegitimate child becomes heir to the intestate personal property to the same extent as if he or she were the legitimate child. Massachusetts courts have held that oral acknowledgment and/or the conduct of the parties are sufficient to constitute acknowledgment. Where relatives of the deceased have furnished statements to the effect that the deceased had lived with the child's mother and had orally acknowledged paternity, Massachusetts courts would find a sufficient basis to establish inheritance rights. (B~, Jeff, ~ — RAI (Triba), to ARC, O1/20/84.)

2. OPINION

You submitted the attached claims folder to us for an opinion concerning the status of a child on whose behalf an application for surviving child's insurance benefits has been filed.

The file reveals that the wage earner, Jeff B~, died May 26, 1982 while domiciled in Massachusetts. Diane J~ filed an application for surviving child's benefits on behalf of Torusento B~ on November 8, 1982, alleging that Jeff B~ was Torusento's father. Diane J~ and Jeff B~ were never married. The child was born September 7, 1982, and the name of the father is omitted from the birth certificate.

As the child was born subsequent to the wage earner's death, the wage earner obviously was neither living with nor supporting the claimant at the time of death. There is no written acknowledgement of paternity and no court order regarding paternity. However, the claimant has submitted signed statements from the wage earner's mother, father and eight brothers and sisters stating that the wage earner and Diane had lived together from August 1981, until March 1982, when he became ill. These statements further indicate that the wage earner had orally acknowledged paternity of the child to his relatives before he died.

The applicant in this case may qualify for benefits only if the courts of Massachusetts would find that he had the same status relative to taking the wage earner's intestate personal property as would a child of the wage earner. Massachusetts law provides in pertinent part that if a decedent has acknowledged paternity of an illegitimate child, that child is an heir of the decedent. M.G.L.c. 190, §7. We have previously held that neither the Massachusetts statute nor pertinent case law requires that the acknowledgment of paternity be in writing. Opinion re Arthur C~ October 25, 1982; opinion re. Glen R. S~ , April 13, 1982.

In our prior opinions we have referred to the case of Houghton v. Dickinson, 196 Mass. 389, 82 N.E. 481 (1907), in which the Supreme Judicial Court concluded that acknowledgment may be established by the conduct of the father or his oral declarations. The court did note, however, that "undoubtedly the recognition of parentage must be unambiguous." We have also noted that the United States District Court for the District of Massachusetts has applied Massachusetts law and held that an applicant for surviving child's benefits had been acknowledged within the meaning of M.G.L.c. 190, §7 although there had been no written acknowledgment by the father. Wrenn v. Harris, 503 F. Supp. 223 (D. Mass. 1980). The court in Wrenn stared that the question of acknowledgment "is best determined on a case-by-case basis, weighing the probative value of any evidence, oral or written, of acknowledgment against the likelihood of. fraud inherent in the particular circumstances." 503 F. Supp. at 226.

Applying these considerations to this case, it is our opinion that there is sufficient evidence of oral acknowledgment of paternity for you to find that the courts of Massachusetts would grant the applicant inheritance rights in the wage earner's estate. Numerous relatives of the deceased have submitted written statements indicating that the wage earner acknowledged his paternity of the child before his death. There is much less likelihood of fraud in this case than if the same statements were submitted by the relatives of Diane J~. Accordingly, we believe that the applicant may be found entitled to benefits on the deceased wage earner's account.

G. PR 82-048 Arthur G~ , ~ — Acknowledgment of Paternity

DATE: October 25, 1982

1. SYLLABUS

PARENT AND CHILD — FEDERAL DEFINITION OF "CHILD" — ACKNOWLEDGMENT OF PATERNITY — MASSACHUSETTS

Current Massachusetts statutory law provides that upon acknowledgment of paternity an illegitimate child becomes the heir to the same extent as if he or she were the legitimate child. Massachusetts courts have held that oral acknowledgment and/or the conduct of the parties are sufficient to constitute acknowledgment.

Courts have applied this principle in cases where the alleged parent died prior to the effective date of the current statute on the basis that the previously existing statute was violative of the Equal Rights Amendment to the State Constitution in that it required intermarriage and written acknowledgment to establish paternity. (G~, Arthur, ~ — RAI (T~, to ARC, 10/25/82.)

2. OPINION

This is in response to your memo of June 8, 1982 requesting our opinion concerning the status of a child, Marilyn T~, on whose behalf an application for surviving child's insurance benefits has been filed.

The pertinent facts are as follows. The wage earner, Arthur G~, died July 15, 1979 while domiciled in Massachusetts. Carrie P. T~ filed an application for surviving child's benefits on behalf of Marilyn on November 27, 1979, alleging that Arthur G~ was Marilyn's father. Marilyn T~ was born September 19, 1968 in South Carolina. 1

There is no written acknowledgment of paternity by the wage earner in the file. The mother and aunt of the wage earner have given statements that the deceased acknowledged his paternity of Marilyn T~ Both the mother and aunt have also stated that the wage earner was living with Carrie T~ in his mother's house at the time she became pregnant. The aunt, Emma W~, further stated that the child lived with her in Boston during the summer of 1977, and that during that summer the deceased visited the child and told her that he was her father.

As you know, §216(h)(2)(A) of the Social Security Act provides that the determination as to whether an individual is the child of an insured shall be made under the law which would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured was domiciled at his death. The wage earner here was domiciled in Massachusetts at the time of his death. The only provision of Massachusetts law under which

Marilyn T~ could inherit from the deceased wage earner is M.G.L. >. 190, §7, which provides in pertinent part that

If a decedent has acknowledged paternity of an illegitimate person or if during his lifetime or after his death a decedent has been adjudged to be the father of an illegitimate person, that person is heir of his father .... 2

You have requested an opinion as to what constitutes sufficient acknowledgment of paternity under M.G.L.c. 190, §7. The statute itself does not require that the acknowledgment be in writing, and judicial decisions interpreting the statute also have not required that acknowledgment necessarily be in writing. In Lowell v. Kowalski, 405 N.E. 2d 135 (Mass. 1980), the Supreme Judicial Court, in striking down the prior version of c.190, §7 requiring intermarriage of the parents in order for an illegitimate child to inherit from his father as a violation of the State Equal Rights Amendment, specifically declined to decide the question of what type of acknowledgment is sufficient. In the case of Houghton v. Dickinson, 196 Mass. 389, 82 N.E. 481 (1907), however, the court held that acknowledgment could be established by the conduct of the father or his oral declarations. Finally, the Federal District Court for the District of Massachusetts, in a case decided subsequent to Lowell v. Kowalski, supra, applied. Massachusetts law and held that an applicant for surviving child's benefits had been acknowledged within the meaning of M.G.L.c. 190, §7 although there had been no acknowledgment in writing by the deceased father. Wrenn v. Harris, 503 F. Supp. 223 (D. Mass. 1980). The court in Wrenn v. Harris noted that the question of acknowledgment "is best determined on a case-by—case basis, weighing the probative value of any evidence, oral or written, of acknowledgment against the likelihood of fraud inherent in the particular circumstances." 503 F. Supp. at 226.

Based upon our reading of the case law and the fact that the Massachusetts legislature, in amending c. 190, §7 subsequent to the decision in Lowell v. Kowalski, supra, did not attach a limiting modifier to the statutory requirement of acknowledgment, it is our opinion that the courts of Massachusetts, if confronted with this specific question, would not require that the acknowledgment under c. 190, §7 necessarily be in writing. We believe that Massachusetts would follow the general view adopted by the courts of other states with similarly worded statutes that the acknowledgment may be oral or may arise from Conduct of the father, Annot., 33 A.L.R. 2d 705. In our opinion, there is sufficient evidence of oral acknowledgment in this case for you to find that the deceased did acknowledge his paternity of Marilyn T~ within the meaning of M.G.L. c. 190, §7. The mother of the child has stated that the deceased was Marilyn's father, and she named him as the father when applying for public assistance in South Carolina in 1975. In addition, the deceased's mother and aunt have stated that the wage earner acknowledged paternity of Marilyn. Clearly there is much less likelihood of fraud in this case than if the same statements were made by the relatives of Carrie T~.

You have also asked whether the change in Massachusetts law brought about by the decision in Lowell v. Kowalski, supra, in May 1980 and the amendment to M.G.L.c. 190, §7 which became effective October 5, 1980 may be applied in this case, in which the wage earner died July 15, 1979 and the application for benefits was filed in November 1979. At the time of the wage earner's death, M.G.L.c. 190, §7 required intermarriage of the parents as well as acknowledgment in order for an illegitimate child to inherit from his father. We believe the present language of c. 190, §7, and not the language of the statute at the time of the wage earner's death, must be applied here in reaching a determination as to whether the applicant may inherit from the deceased. In the L~ case itself, of course, the court held that an illegitimate child whose father acknowledged her was entitled to a share of his estate although at the time of his death c. 190, §7 had required intermarriage of the parents. Similarly, in Paquette v. Koscotas, 421 N.E.2d 483 (Mass. App. 1981), a case decided subsequent to both the L~ decision and the amendment to M.G.L.c. 190, §7, the court concluded that an acknowledged illegitimate child was an heir of her father, who had died in 1977. Finally, in Wrenn v. Harris, supra, the Federal District Court for the District of Massachusetts held that an acknowledged illegitimate child whose father had died in 1972 would be permitted under Massachusetts law to inherit from the decedent. Thus, we would conclude that Marilyn T~ would be permitted to inherit under M.G.L.c. 190, §7 as an acknowledged illegitimate daughter regardless of the fact that her father died prior to the change in the law. 3

We trust that the foregoing satisfactorily answers your inquiry. Please let us know if you have any further questions.


Footnotes:

[1]

We note that the child was not legitimated under the law of South Carolina, which requires that the parents intermarry or that the family court declare the child legitimate. POMS GN 00306.135.

[2]

M.G.L.c. 190, §7, which previously had required that the parents intermarry in order for an illegitimate child to inherit from his father, was amended by the Massachusetts legislature on July 7, 1980. This amendment, providing that an acknowledged illegitimate child may inherit from his father, became effective on October 5, 1980.

[3]

You state that the entry for Massachusetts in POMS GN 00306.135 is unclear since it states in part as follows:

Child or father acquires status of child or parent if . . . (3)(I) prior to 10/5/80, father acknowledges paternity or is adjudged the father in an adjudication of paternity, or . . (5)(I) effective 10/$/80, father acknowledges paternity or during his lifetime or after his death is adjudged to be the father of the child.

This language, while somewhat confusing, simply establishes that an acknowledged illegitimate child will be. capable of inheriting under Massachusetts law regardless of whether the acknowledgment occurred prior to or after the change in M.G.L. c. 190, §7.


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PR 01115.024 - Massachusetts - 04/28/2011
Batch run: 04/28/2011
Rev:04/28/2011