J~ was awarded child's benefits, effective June 2006, on the record of J2~. J2~ was
presumed to be J~'s father because J2~ was married to J~'s mother at the time of J~'s
birth. However, DNA tests now show a 99.9509% chance that P~ is J~'s biological father.
And, even more recently, J~'s mother and J2~ were granted a divorce, and the court
found, in its order granting the divorce, that J2~ is not J~'s father.
An application has now been filed for child's benefits on P~’s record, as well. You
asked whether the DNA test is sufficient to rebut the presumption that J~ is P~'s
child, or whether SSA should continue to pay J~ child's benefits on J2~'s record,
based on the presumption of legitimacy. We conclude that a Minnesota court would most
likely rule, based on the DNA test results and other evidence in the record, that
J~ cannot inherit from P~ as his child. Therefore, the DNA test results provide a
basis for reopening and revising the award of benefits on P~'s account. Furthermore,
we believe that a Minnesota court would now likely find that J~ is J2~’s child and
that this finding would relate back to J~'s birth, so that J~ would be entitled to
benefits on J2~’s account even before the DNA test results were obtained.
J~'s mother married J2~ in 1984. J~ was born during the marriage in 1997. J2~ is listed
as J~'s father on J~'s birth certificate and on J~'s SS-5. J~ was awarded child's
benefits on J2~'s record effective June 2006, based on an application filed that month.
In February 2007, DNA testing showed a 99.95% probability that P~ is J~'s biological
father. J~'s mother has stated that she and J2~ were separated at the time of J~'s
conception, and that she developed a relationship with P~ in 1995.
In October 2008, a court issued an order granting J~'s mother and J2~ a divorce. In
the divorce order, the court found that J~ was born during the marriage, but that
J2~ did not have sexual intercourse with J~'s mother during the possible time of conception
and that J~'s mother did have sexual intercourse during that time with the person
(presumably P~) who was determined, by blood tests, to have a probability of parentage
of 99.95 %. The court found that "for these reasons and by the agreement of the parties"
J2~ "is not the biological father" of J~. The court ordered that J~'s mother and J2~
had joint custody of another child born during the marriage, who the court found is
J2~'s child. The court further ruled that, although J~ "is not the child of J2~, the
parties agreed that J~ should accompany "his half-sister" when she is in J2~'s custody.
You indicated that J~'s mother plans to request that J~'s birth certificate be amended.
You informed us that P~ has asked to be named on the birth certificate and wants to
rename J~'s middle name (presumably using his own last name). However, you indicated
that J~'s mother was advised to complete the divorce proceedings before adjudicating
the paternity issue in court. It appears that no separate paternity action has yet
You informed us that J~ has bonded with both J2~ and P~ and apparently considers J2~
to be his "dad" and P~ to be his "father." You previously advised that J~ was living
part-time with his mother and part-time with J2~ (which appears consistent with the
divorce order), and that J~ also sees P~ twice a week. J~ does not have a relationship
with P~’s family, but he has a relationship with J2~'s mother and sister.
Everyone involved is domiciled in Minnesota.
Under section 216(h)(2) of the Social Security Act, a child is entitled to benefits
on the earnings record of an insured individual if the child could inherit the insured's
property as his or her natural child under the intestacy laws of the state in which
the insured was domiciled at the time of the application. 42 U.S.C. § 416(h)(2); see also 20 C.F.R. § 404.355(a)(1). If state inheritance law requires a court determination
of paternity, the Agency does not require the claimant to obtain a court determination,
but decides 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. If a child would not qualify as a child of the insured under
the State law in effect at the time the child's application was filed, the Agency
must look at all versions of State law that were in effect from the first month for
which the child could be entitled to benefits up until the time of the final decision
and apply the version of State law that is most beneficial to the child claimant.
20 C.F.R. § 404.355(b)(3). Here, we must determine whether J~ still could inherit
from J2~, as well as whether J~ could now inherit from P~
To inherit from J2~ as his child, J~ would need to rely on the Parentage Act's presumption
of paternity based on J2~'s marriage to his mother at the time of his birth. See MINN. STAT. ANN. § 257.55(1)(a). However, we believe that a Minnesota court would
likely find that P~, rather than J2~, is J~'s father under the Parentage Act, based
on the new evidence now available.
We note first that the divorce decree would not be decisive in such a case. A court
determination of non-paternity is usually binding for all purposes. See MINN. STAT. ANN. § 257.66(1). However, the Minnesota Supreme Court has held that,
if the child is not a party to a paternity action, the child is not bound by the decision
in that case and can bring a separate action to establish paternity. See Johnson v. Hunter, 447 N.W.2d 871, 874, 876 (Minn. 1989). Here, it does not appear that J~ was a party
to the divorce proceeding. Nor was he represented in that action. Therefore, J~ would
not be bound by any finding in the court's order and could attempt to inherit from
J2~ under the Parentage Act based on the presumption of paternity. Nevertheless, it
appears that, even if the court were to consider the issues anew, the court would
still likely find that P~, rather than J2~, is J~'s father.
The Minnesota Supreme Court has recently held that, in an inheritance action:
When a party benefits from a Parentage Act presumption of paternity and relies on
that presumption to establish paternity in a probate proceeding, the party has chosen
to establish paternity under the Parentage Act, as expressly authorized by the Probate
Code. See Minn. Stat. § 524.2-114. In such a situation, the provisions of the Parentage Act
must apply in their entirety.
Estate of Jotham, 722 N.W. 2d 447, 452 (Minn. 2006). The Court further held that a court can entertain
an effort to rebut a presumption of paternity in an inheritance proceeding only if
"the party seeking to rebut a paternity presumption would not be barred by the standing
or timeliness requirements in [MINN. STAT. ANN. §] 257.57 from bringing an action
to declare the nonexistence of the presumed father-child relationship." Estate of Jotham, 722 N.W. 2d at 455. The time for bringing an action to establish J2~'s non-paternity
lapsed, at the latest, in 2001 (three years after J~'s birth). See MINN. STAT. ANN. § 257.57(1)(b) (presumption of paternity based on marriage to mother
of child lapses three years after the child is born). After that time, no one could
bring an action to establish that J2~ is or was not J~'s father. While SSA ignores
time limits placed on claimants for establishing paternity, 20 C.F.R. § 404.355(b);
POMS GN 00306.075(B)(3), we have confirmed with the Office of Income Security Programs that SSA does
not ignore state law time limits for establishing non-paternity. Therefore, the court
would not consider an allegation that J2~ is not J~'s father.
However, while an action to establish non-paternity is time-barred, an action to establish
paternity based on DNA evidence can be brought at any time by the child, the child's
mother, or the man alleging himself to be the father based on the presumption arising
from the DNA test results. WIS. STAT. ANN. § 257.57(2)(1). Therefore, J~, J~'s mother,
or P~ could, in theory, bring an action at any time to assert that P~ is J~'s real
father (which effectively would also establish that J2~ is not the father). Although
we did not find any cases directly on point, it appears that any one of these individuals
could potentially assert, in the inheritance proceeding for J2~, that P~ is J~'s real
father. In this way, the inheritance court would be able to consider that someone
other than J2~ is J~'s father under the Parentage Act. See Dorman v. Steffen, 666 N.W.2d 409, 411-12 (Minn. App. 2003) (actions to establish paternity may be
brought at any time, even though the effect is to declare the non-paternity of a presumed
father and the action is brought past the time to bring an action to establish non-paternity
of a presumed father).
We assume that J~ would not assert that P~ is his real father if he were attempting
to inherit from J2~ as his son. However, if J~ were attempting to inherit from J2~
as his son under the Parentage Act, then, according to the Jotham decision, all provisions of the Parentage Act would apply to the case. Estate of Jotham, 722 N.W. 2d at 452. Under the Parentage Act, J~’s mother would be made a party to
the action, if still living and subject to the jurisdiction of the court where the
inheritance proceeding would be held (which she would be at least at this point in
time). See WIS. STAT. ANN. § 257.60. Although we did not find any cases on this specific issue,
we assume that, under the holding in the Jotham decision and under the plain language of the Parentage Act, J~'s mother would be
made a party to the inheritance proceeding on J2~'s estate, not as a potential heir,
but as a necessary party under the Parentage Act, since J~ would be proceeding under
that Act to establish paternity.
Once J~'s mother were made a party to the action she would, presumably, assert that
P~, and not J2~, is J~'s father, since to take any other position would be inconsistent
with her position in the divorce proceeding against J2~. In fact, she may now be estopped
from taking any other position. See Markert v. Behm, 394 N.W.2d 239, 241-42 (Min. App. 1986) (ex-wife precluded by collateral and equitable
estoppel, as well as res judicata, from challenging ex-husband's paternity where she
was party to prior divorce action finding him to be the child's father). At that point,
P~ would also be made a party to the action. See MINN. STAT. ANN. § 257.60 (any man alleged to be the biological father shall be made
a party to the action if subject to the court's jurisdiction). If SSA credits the
information provided to us, it appears that P~ would not contest the allegation that
he is J~'s father.
Since J~'s mother would be asserting that P~, rather than J2~, is J~'s father, and
since it appears from the information you provided that P~ would also try to establish
that he is J~'s father, the court would be faced with competing presumptions of paternity:
(1) the presumption, under MINN. STAT. ANN. § 257.62(5)(b), that P~ is J~'s father,
based on the DNA test results; and (2) the presumption under MINN. STAT. ANN. § 257.55(a)(1),
that J2~ is J~'s father because J2~ was married to J~'s mother at the time of J~'s
Under the Parentage Act, "[i]f two or more presumptions arise which conflict with
each other, the presumption which on the facts is founded on the weightier considerations
of policy and logic controls." MINN. STAT. ANN. § 257.55(2). Under Minnesota law,
none of the presumptions is necessarily weightier or controlling. See Witso v. Overby, 609 N.W.2d 618, 620-21 (Minn. App. 2000), aff'd 627 N.W.2d 63 (Minn. 2001), cert.
denied 534 U.S. 1130 (2002). However, the case law is instructive as to which factors
courts consider most important in determining which presumption should control in
In In re C.M.G., 516 N.W.2d 555 (Minn. App. 1994), the court found that, on the particular facts
of that case, the presumption of paternity based on a declaration of parentage was
weightier than the presumption of paternity based on blood/DNA testing. In that case,
the man who had executed the declaration of parentage wanted to be the father and
was willing and able to support the child; the child viewed that man as his father
and had bonded with him, as well as the man's parents; and the man presumed to be
the father based on blood/DNA test results did not want to develop a paternal relationship
with the child. Id. at 561.
In Paternity of BJH v. MTH, 573 N.W.2d 99 (Minn. App. 1998), both the man who was married to the child's mother
and the man who was the biological father, according to blood tests, petitioned to
be the child's father. The court ruled in favor of the biological father. The court
listed several reasons for its decision, including the fact that the man was the biological
father; he wanted a relationship with the child; he introduced the child as his own;
there were doubts about the continued stability of the marriage between the mother
and the other man; the child would eventually want to know his biological father;
and the child was young enough to establish a relationship with the biological father,
even though he had spent the majority of his life to that point with the other man.
Id. at 103.
In State v. Thomas, 584 N.W.2d 421 (Minn. App. 1998), neither the man presumed to be the father based
on blood tests nor the man presumed to be the father based on marriage wanted to be
named as the father of the child at issue. In that case, the court also found that
the biological father should be adjudicated to be the father, since he could not avoid
his obligation to support his child by arguing that another man would be a better
parent. The court also noted that there is a policy of not impairing blood relationships
and that the marriage between the mother and the man presumed to be the father based
on marriage had ended. Id. at 425.
It is not entirely clear how a court would weigh the factors in this case. J~ has
developed a relationship with both men and considers one to be his "dad" and the other
to be his "father." Some factors weigh in favor of finding that J2~ should be named
the father, since J~ lives part-time with J2~, whereas he sees P~ twice a week but
does not live with him; and J~ has a relationship J2~'s mother and sister, but does
not have a relationship with P~’s family. However, the court seems to weigh the biological
relationship very heavily, and seems to find that the biological father should be
named as father unless the biological father does not want to be the child's father
and another man who is presumed to be the father is willing and able to be the child's
father and has developed a relationship with the child. See In re C.M.G., 516 N.W.2d 555; Paternity of BJH, 573 N.W.2d 99; Thomas, 584 N.W.2d 421. Here, if you credit the evidence in the record, it appears that
P~ would like to be named as J~'s father. Furthermore, it appears that J2~ does not
want to be considered J~'s father, since he has agreed to a court order finding that
he is not J~'s father. Based on these facts, we believe that a Minnesota court would
likely find P~ should be named J~'s father under the Parentage Act.
Thus, it is likely that, in an inheritance proceeding on J2~'s estate, the probate
court would consider the competing presumptions of paternity and find that P~, rather
than J2~, is J~'s father. Under Minnesota law, a determination of the existence or
nonexistence of the parent and child relationship under the Parentage Act is determinative
for all purposes, and the court must order a new birth record be issued consistent
with the determination. MINN. STAT. ANN. § 257.66(1)-(2) (West 2007). Thus, any determination
under the Parentage Act that P~ is J~'s father would "legitimate" J~ and relate back
to his birth. For these reasons, the DNA test results would provide a basis for reopening
the award of benefits on J2~'s account and denying that claim for benefits. See 20 C.F.R. §§ 404.988(b), 989(a)(1) (determination can be reopened within four years
based on new and material evidence); POMS GN 04010.030.
By the same token, if J~ attempted to inherit from P~ as his son, the court would
likely conclude that the DNA evidence, together with other evidence of record, is
sufficient to find that J~ is P~’s child under the Parentage Act. Since that finding
would relate back to J~'s birth, he would be entitled to benefits on P~’S record even
before the DNA tests were performed. See POMS GN 00306.050 (child legitimated after birth is considered legitimate from birth). Accordingly,
it would be reasonable to reopen the award of benefits on J2~'s account, based on
the DNA evidence and the other new evidence, and find that P~, rather than J2~, is
In sum, we conclude that a Minnesota court would likely rule that J~ cannot inherit
from J2~ as his child, based on the new DNA and other evidence provided. The new evidence,
therefore, provides a sufficient basis to reopen and revise the award of benefits
on J2~'s account. We further conclude that a Minnesota court would likely find that
J~ should be considered P~’s child, for purposes of inheritance, and for all purposes,
relating back to his birth. Therefore, J~ would be eligible for benefits on P~’s account
as his child even before the DNA test results were obtained.
Donna L. C~
Regional Chief Counsel, Region V
By: Suzanne D~
Assistant Regional Counsel