You have asked for advice as to whether an illegitimate child can be entitled to child's
benefits on the record of a deceased number holder based on statements made by the
mother, uncle, and friends of the deceased.
The memorandum you sent with your request indicates that Andre T. W~ (deceased number
holder) died on October XX, 1998, domiciled in Missouri. Shakara C~ filed for surviving
child's benefits on behalf of her daughter, Makhye C~, on March 9, 1999. Shakara alleged
that the deceased number holder was the biological father of Makhye. Shakara and the
deceased number holder were never married and never resided together after the birth
of the child. The deceased number holder was never ordered by a court to pay child
support or decreed by a court to be the father of Makhye. There is no written acknowledgment
of paternity and the deceased number holder was not living with Makhye or contributing
to her support at the time of his death. Prior to Shakara's pregnancy and after the
birth of Makhye, the deceased number holder was residing in Los Angeles, California.
In a statement taken by a Claims Representative on February 19, 1999, Shakara C~ stated,
in addition to the above, that Makhye's birth certificate had blanks for the father's
name. She also stated that Makhye did not visit the deceased number holder in his
home. In another undated statement, Shakara C~ stated that the deceased number holder
contributed some non-court-ordered child support, but she did not have any documentation.
The materials you submitted with your request include a report of contact made on
December 28, 1999, with Valerie W~, mother of the deceased number holder. Valerie
W~ stated that her son did acknowledge that Makhye was his daughter but she could
not say if he accepted her into his home because she lived in Kansas City, Missouri,
and he lived in Los Angeles, California. In a note dated March 11, 2000, Valerie W~
stated that her son had told her about his daughter, Makhye A~ C~. Valerie W~ submitted
an Internal Revenue Service Form 1099 showing that she had established a mutual fund
account for Makhye.
In a statement signed March 13, 2000, Valerie W~ stated that her son had informed
her that Makhye was his daughter after her birth. She stated that she "truely" [sic]
believed that Makhye was her granddaughter. She purchased a mutual fund account which
would be accessible to Makhye at age twenty-one. She stated she had "done this with
her, as I have with his other two children." She further stated that she had seen
pictures of Makhye that resembled herself and she had also met Makhye in person when
her family held a family reunion in California in June 1999. She invited Makhye and
Shakara to join them for the weekend. She had also invited them to spend a week with
her this summer in Kansas City. She stated: "I hope that Shakara can be offered the
same assistance as the other two mothers, to help raise her daughter Makhye." Valerie
W~ also submitted a color photograph of herself, Makhye, and Shakara to corroborate
the allegation that Makhye resembled her.
In a statement dated August 25, 1999, the deceased number holder's uncle, Steven W~,
stated that the deceased number holder told him that he was going to be a father when
Shakara C~ first became aware of her pregnancy. The deceased number holder also told
other people he was the father of Makhye. Makhye never lived with the deceased number
holder as his child. The deceased number holder visited Steven W~'s home with Makhye
several times on weekends. He stated that he had visited the deceased number holder
at his home and that Makhye was there on several visits. He further stated that the
deceased number holder bought Makhye food, diapers, and toys, as did he and his wife.
He stated that Shakara and Makhye were part of their family.
The materials you sent also include statements from two friends of Shakara. In a statement
dated January 25, 2000, Kenya R. N~ stated that he was a close friend of Shakara's
family and a good friend of the deceased number holder for approximately two years.
He stated that he and the deceased number holder were both expecting babies at the
same time and hid their situations from everybody. He stated that the deceased number
holder was seeing someone else behind Shakara's back and did not want Mr. N~ to "spread
the word around." The deceased number holder had never told him that Makhye was not
his child. He could not say for sure whether Makhye lived with the deceased number
holder as his child because he was not that involved in their lives. He stated that
the deceased number holder did babysit Makhye on a few occasions when Mr. N~ was there.
In a statement dated March 13, 2000, Halcim A~ indicated that he was a friend of Shakara's
and a co-worker of the deceased number holder. He stated that the deceased number
holder had told him that he was going to be a father during Shakara's pregnancy. The
deceased number holder had told other co-workers and friends about being the father
of the child. The deceased number holder never asked Mr. A~ not to tell anyone else
he was the father, and had never told anyone the child was not his. The deceased number
holder "constantly" expressed joy over the birth of his daughter.
He did not know if Makhye and the deceased number holder lived together but he had
personally seen them together as father and daughter on "many occasions" at the deceased
number holder's apartment and in public. Makhye visited the deceased number holder
in his home "often." Mr. A~ stated that the deceased number holder changed Makhye's
diapers, fed her, and played with her. Mr. A~ commented that he knew the deceased
number holder very well and that he definitely loved and worked hard to provide for
In a telephone conversation on August 29, 2000, Shari H~ of the Assistance and Insurance
Program Quality Branch, San Francisco Region, Social Security Administration, indicated
that the claims folder showed that Makhye was born November XX1, 1997. No father was
named by Shakara C~ on Makhye's birth certificate. There are two other children entitled
to child's benefits on the deceased number holder's record whose benefits would be
reduced due to the family maximum if Makhye becomes entitled to benefits.
Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement
to child's insurance benefits. This section provides that every child (as defined
in section 216(e)) of an individual who dies fully insured under the Act is entitled
to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time
elementary or secondary school student and under age 19), or is under a disability
that began before age 22, and was dependent on the deceased at the time of death.
Id. A child who is "legitimate" or legally adopted by the insured individual is deemed
dependent, and is thus entitled to benefits.
Social Security Act § 202(d)(3).
An "illegitimate" child can be deemed dependent on a deceased insured individual in
several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can
be deemed dependent on the insured by showing that the insured was his or her parent
and was living with or contributing to his or her support at the time of the insured's
death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed
dependent on the insured if the child can show that the insured was his or her parent
and that his or her parents went through a purported marriage ceremony, but their
marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i)
of the Act provides that the child can be deemed dependent on the insured if the child
can show that the insured had, prior to his death: (a) acknowledged in writing the
child as his child; (b) been decreed by a court to be the child's parent; or (c) been
ordered by a court to contribute to the support of the child on the basis of parenthood.
Section 202(d)(3) of the Act provides that any child who meets the tests in sections
216(h)(2) or (h)(3) "shall be deemed to be the legitimate child of such individual."
In this case, none of the above requirements can be met by Makhye. The deceased number
holder was not living with or contributing to Makhye's support at the time of his
death. Shakara and the deceased number holder were never married. The deceased number
holder did not acknowledge in writing Makhye as his child, nor was he decreed by a
court to be her parent or ordered to pay support.
An "illegitimate" child who does not meet any of the above requirements for showing
dependency can also be entitled to benefits under section 216(h)(2)(A) if the child
could inherit personal property under "such law as would be applied in determining
the devolution of intestate personal property by the courts of the State in which
such insured individual . . . was domiciled at the time of his death . . . ." Id. An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A)
of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). In this case, you have indicated that the deceased
number holder was domiciled in Missouri; therefore, Missouri intestacy law applies.
Missouri statutes provide in relevant part:
[A] person born out of wedlock is a child of the mother. That person is also a child
of the father, if either of the following occur:
(1) The natural parents participated in a marriage ceremony before or after the birth
of the child, even though the attempted marriage is void;
(2) The paternity is established by an adjudication before the death of the father,
or is established thereafter by clear and convincing proof . . .
Mo. Ann. Stat. § 474.060 (West, WESTLAW through 1999).
The Eighth Circuit has adopted the Missouri Court of Appeals definition of "clear
and convincing" proof as that "which 'instantly tilt[s] the scales in the affirmative
when weighed against evidence in opposition,' and clearly convinces the factfinder
that the evidence is true." Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992) (citing Sherrill for Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987) (quoting In re Michael O'Brien, 600 S.W.2d 695, 697 (Mo. Ct. App. 1980)). See also Jones v. Chater, 101 F.3d 509, 511 (7th Cir. 1996) (Missouri's intestacy statute requires clear and
convincing evidence of paternity); State of Missouri v. Tuckness, 949 S.W.2d 651 (Mo. Ct. App. 1997) ("The clear and convincing standard refers to
evidence which instantly tilts the scales in the affirmative when weighed against
the evidence in opposition, and the fact finder's mind is left with an abiding conviction
that the evidence is true.") (citing In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo. Ct. App. 1995)). Other courts have defined clear, convincing,
and cogent evidence as that which admits no reasonable doubt. Eldridge, 980 F.2d at 500 (citations omitted).
In Imani on Behalf of Hayes v. Heckler, 797 F.2d 508 (7th Cir. 1986), the Seventh Circuit Court of Appeals found that the
plaintiff did not establish by clear and convincing evidence under Missouri's laws
of intestate succession that the wage earner was the father of her illegitimate child. Id. at 511-12. In Imani, the plaintiff had informed the insured that she might be pregnant two weeks before
his death but she was unable to inform him that she was in fact pregnant before he
died. She alleged that he nonetheless "knew" that he was the father. She offered evidence
concerning the statements and actions of third parties as well as photographic evidence
to support her claim. An administrative law judge found that she had not established
by clear and convincing evidence that the insured was the father of the child. The
decision was upheld by the Seventh Circuit Court of Appeals. Id.
In Sherrill, 835 F.2d at 168-69, the Eighth Circuit Court of Appeals held that the plaintiff
had failed under Missouri's intestacy statute to establish by clear and convincing
evidence that the deceased wage earner was the father of her child. The plaintiff
did not name a father on the child's birth certificate.
She had alleged that the wage earner had brought money, toys, and food for the child
but she had kept no records. She alleged that the deceased wage earner had taken out
an insurance policy for the child but it was never produced and she stated that she
did not know whether she or the child was the designated beneficiary.
Inconsistently, in a signed statement taken in conjunction with her application for
benefits, she stated that the deceased wage earner had never taken out an insurance
policy on the child. The deceased wage earner's widow testified that she had been
married to him for three years and they had two children. She stated that she had
no knowledge of the child he allegedly fathered, and that he had never made any support
payments to the child. The evidence included a notarized statement by the deceased
wage earner's mother stating the he had acknowledged that the child was his and had
brought the child to her home regularly. She stated that she did not know why she
had not mentioned the child until twelve years after her son's death. Id. at 167. The court agreed with an administrative law judge that there was not clear
and convincing evidence of paternity as required by the Missouri intestacy statute.
There was no evidence proving that the deceased wage earner was not the child's father,
but neither was there "clear and convincing evidence" showing that he was the father.
Testimony at the hearing was inconsistent with documentary evidence, there were vague
allegations twelve years after the death of the wage earner, and there was a failure
to produce records and vital documents which cast the plaintiff's testimony in a "particularly
doubtful light." Id. at 168.
In Cooper v. Sullivan, 985 F.2d 390 (8th Cir. 1993), the Eighth Circuit Court of Appeals found that the
evidence supported the Commissioner's denial of surviving child benefits where paternity
was not proved by clear and convincing evidence under an Illinois intestacy statute,
despite the child's mother testimony that the deceased wage earner was the child's
father and affidavits of the mother's mother, sister, and brother-in-law which supported
her testimony. Id. at 391. The Commissioner stated that although the affidavits submitted constituted
some evidence that the claimant was the child of the wage earner, other circumstances,
particularly the claimant's mother's acknowledgment that the wage earner did not support
the claimant at the time of his death nor acknowledged in writing that the claimant
was his child, precluded the existence of clear and convincing evidence that the claimant
was the child of the wage earner. Id.
In Robbie v. Gerstner, 733 S.W.2d 859 (Mo. Ct. App. 1987), a Missouri Appeals Court did find clear and
convincing proof of paternity based on the testimony of the party seeking the declaration
of paternity, the testimony of three disinterested witnesses, and comparison photographs.
Id. The children were receiving Social Security payments on the deceased's account after
his death. Id. at 859-60. The court found the evidence of paternity "consistent and overwhelming,"
and allowed the children to inherit from the estate of the decedent's mother. Id. at 860.
The Missouri legislature enacted the Parentage Act in 1987. See In re Carl Nocita, 914 S.W.2d 358, 359 (Mo. banc 1996); Mo. Ann. Stat. §§ 210.817-852. The Parentage
Act allows a presumption of paternity in cases where there has been a marriage or
attempted marriage between the alleged father and mother; if the alleged father has
admitted paternity in a filed writing, if he was named on the birth certificate with
his consent, or if he was ordered to pay child support; or if a blood test showed
a ninety-eight percent or higher probability of paternity. See Mo. Ann. Stat. § 210.822.1. The presumption of paternity may be rebutted only by
clear and convincing evidence. See Mo. Ann. Stat. § 210.822.2.
In In re Nocita, the Missouri Supreme Court ruled on the issue of whether the Parentage Act or the
intestacy statute governed in determining whether an illegitimate child inherits by
intestate succession. In Nocita, an illegitimate child filed for letters of administration for the alleged father's
estate. The decedent's family moved to dismiss the action, alleging that the child's
paternity claim was barred by the statute of limitations in the Parentage Act. The
Court noted that the legislature enacted the Parentage Act in 1987 with knowledge
of the Probate Code previously enacted in 1980. See In re Nocita, 914 S.W.2d at 359. The Court stated: "'In construing a statute, the Court must presume
the legislature was aware of the state of the law at the time of enactment.'" Id. (quoting Nicolai v. City of St. Louis, 762 S.W.2d 423, 426 (Mo. banc 1988)). Because the legislature passed the Parentage
Act without conforming the Probate Code, the General Assembly refused to make the
Parentage Act the exclusive means to establish paternity for probate. Id. The Court concluded that both statutes stood and that the illegitimate child was
not barred by the statute of limitations in the Parentage Act. Id. Makhye does not meet any of the requirements of the Parentage Act, however; therefore,
a presumption of paternity cannot be established under that Act.
In the fact situation which you present, we believe that a court in the Eighth Circuit
would not find clear and convincing proof that Makhye C~ is the child of the deceased
number holder for intestacy purposes. While there is evidence suggesting that Andre
T. W~ was the father of Makhye C~, we cannot say that the evidence presented "'instantly
tilt[s] the scales in the affirmative when weighed against evidence in opposition,'
and clearly convinces the factfinder that the evidence is true." Eldridge, 980 F.2d at 500; Sherrill, 835 F.2d at 168; In re Michael O'Brien, 600 S.W.2d at 697. Shakara C~ did not name a father on Makhye C~'s birth certificate.
There is no blood test evidence. In a telephone statement made on February 19, 1999,
Shakara C~ stated that Makhye never lived with the deceased number holder, he made
no written acknowledgment of paternity, and he never provided support. She also stated
that Makhye never visited him in his home. This is inconsistent with her friends'
statements and the deceased number holder's uncle's statement that Makhye did visit
the deceased number holder in his home. The deceased number holder's mother believes
that Makhye is her granddaughter, but she lived in Kansas City while her son lived
in Los Angeles and she did not know if he accepted Makhye into his home. Although
the deceased number holder's uncle stated that the deceased bought Makhye food, diapers,
and toys, Shakara C~, the child's mother, did not make such a statement and provided
no records to support this allegation. As in Sherrill, 835 F.2d at 168, there is no evidence proving that the deceased number holder was
not Makhye's father, but neither is there "clear and convincing" evidence showing
that the deceased was her father.
Therefore, we believe it is reasonable to conclude that the evidence does not establish
paternity by "clear and convincing proof" within the meaning of Missouri's intestacy
statute, and the requirements for entitlement under section 216(h)(2)(A) of the Act
were not met. Thus, benefits were properly denied.