You have asked for advice as to whether an illegitimate child can establish paternity
and thus be entitled to child's benefits on the record of a deceased number holder
based on the results of DNA testing of the child, the child's mother, and the child's
alleged sibling which establishes a probability of full-siblingship of 96.8 percent.
For the reasons discussed below, we believe that although Nebraska courts would consider
these DNA test results as evidence in determining paternity, paternity would not be
established by "clear and convincing" evidence within the meaning of Nebraska's intestacy
statute such that child's benefits can be paid.
The memorandum you sent with your request indicates that on November 9, 2001, Connie
S~ filed for surviving child's benefits on behalf of her son, Jesse K. S~, who was
born on March 2, 1989. Ms. S~ alleged that Larry E~, Sr. (deceased number holder)
was the biological father of Jesse. Ms. S~ and the deceased number holder were not
married when Jesse was conceived or anytime thereafter. The deceased number holder
never provided support nor acknowledged paternity in writing.
The materials you sent also include other documents submitted by Ms. S~. Jesse's birth
certificate does not reflect a father's name. The birth certificate of Jesse's alleged
full sibling identified Larry E~ as the father. Ms. S~ submitted a DNA Sibship Test
Report from the DNA Diagnostics Center dated April 5, 2001, citing a probability of
full-siblingship of 96.8 percent based upon blood tests of Jesse, Ms. S~, and his
alleged full sibling (assuming prior probability equals .50).
Additional development shows that the deceased number holder died on December 14,
1997, domiciled in Columbus, Nebraska. A statement from Jesse dated March 3, 2000,
indicates that the deceased number holder told him that he was his father. Jesse also
stated that Ms. S~ and the deceased number holder were previously married. In a letter
dated January 10, 2000, Tina S~, Ms. S'~s and the deceased number holder's daughter,
indicated that Ms. S~ and the deceased number holder had told her that Jesse was the
deceased number holder's child. In a statement dated February 25, 2000, Kristina R~,
Ms. S~'s daughter, indicated that she was living with Ms. S~ at the time Jesse was
conceived and she believed that the deceased number holder and Ms. S~ had sex. Donna
R~ indicated in a statement dated January 20, 2000, that the deceased number holder
had told her that Jesse was his son, but he was keeping it quiet because he did not
want his recent wife to know. She also stated that the deceased number holder told
Jesse before he died that he was his father.
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 Jesse.
The deceased number holder was not living with or contributing to Jesse's support
at the time of his death. Ms. S~ and the deceased number holder were not married at
the time of Jesse was conceived or anytime thereafter. The deceased number holder
did not acknowledge Jesse as his child in writing, nor was he decreed by a court to
be his 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. See also 20 C.F.R. § 404.355(a)(1)(2001); Program Operations Manual System (POMS) GN 00306.055. An illegitimate child who meets the standard which Congress set forth in section
216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). If the insured is deceased, the Social Security
Administration applies the law on inheritance rights where the insured had his permanent
home when he died. See 20 C.F.R. § 404.355(b)(1). In this case, you have indicated that the deceased number
holder was domiciled in Nebraska; therefore, Nebraska intestacy law applies.
Neb. Rev. Stat. § 30-2309 states that if, for purposes of intestate succession, a
relationship of parent and child must be established to determine succession by, through,
or from a person, a person born out of wedlock is a child of the father, if:
(i) the natural parents participated in a marriage ceremony before or after the birth
of the child, even though the attempted marriage is void; or
(ii) the paternity is established by an adjudication before the death of the father
or is established thereafter by strict, clear and convincing proof. The open cohabitation
of the mother and alleged father during the period of conception shall be admissible
as evidence of paternity. The paternity established under this subparagraph (ii) is
ineffective to qualify the father or his kindred to inherit from or through the child
unless the father has openly treated the child as his, and has not refused to support
The Nebraska statute allows a presumption of paternity in cases where there has been
a marriage or attempted marriage between the alleged father and mother. See Neb. Rev. Stat. § 30-2309(2)(i). Although Ms. S~ and the deceased number holder may
have been previously married, the evidence does not show that Ms. S~ and the deceased
number holder were married or attempted to marry during the time Jesse was conceived
Jesse can only establish paternity under Nebraska's intestate succession law by "strict,
clear and convincing proof." Neb. Rev. Stat. § 30-2309. Nebraska Courts have described
clear and convincing evidence in intestate succession cases as "the amount of evidence
which produces in the trier of fact a firm belief or conviction about the existence
of a fact to be proved." In re Estate of B~, 603 N.W.2d 688, 693 (Neb. Ct. App. 2000)(citing In re Interest of Joshua M. et al., 251 Neb. 614, 636, 558 N.W.2d 548, 563 (1997)).
Nebraska law provides that genetic tests are admissible evidence and create a rebuttable
presumption of paternity when the results of the genetic tests show a probability
of paternity of 99 percent or higher. See Neb Rev. Stat. § 43-1415; POMS GN 00306.550. Nebraska statutory law only addresses a presumption based on the probability of
paternity. Sibship testing is not addressed. Here, the DNA test results established
the probability of full-siblingship by testing Jesse, Jesse's mother, and Jesse's
alleged full sibling. We do not believe sibship testing falls within this statute.
Furthermore, even if sibship testing did fall with this statute, the probability of
full-siblingship was only a 96.8 percent likelihood of such a relationship. Thus,
the results of this DNA testing do not create a presumption of paternity by the deceased
number holder under Nebraska statutory law.
Although there is no Nebraska case law specifically addressing whether sibling blood
tests are probative in establishing clear and convincing evidence of paternity, the
results of genetic testing are admissible evidence to be weighed along with other
evidence of paternity. See Neb. Rev. Stat. § 43-1415; State v. Snelling, 637 N.W.2d 906, 909-10 (Neb. Ct. App. 2001)(noting that genetic tests are weighed
with other evidence of paternity). Other jurisdictions have noted the possible relevance
of sibling blood and DNA testing. DNA testing of a deceased father's parents has been
allowed in other jurisdictions as evidence to prove paternity. We believe that a Nebraska
court would consider the DNA testing submitted in this case in a clear and convincing
A general understanding of the probability of paternity estimates is required to determine
the significance of the DNA testing performed in this case.
The POP [(Probability of Paternity)] is an estimate of the likelihood that the putative
father is the biological father of the child. It is determined by calculating the
chance that the putative father could produce a single sperm containing all the genetic
information a given child must have received from its biological father, as compared
to the chance that a random unrelated man of the same-race could provide the necessary
genetic information. . . . A testing laboratory's methodology is to run a battery
of tests in order to exclude the alleged father.
If the exclusion occurs based on the absence of necessary genetic information, then
the testing ceases and the POX [(probability of exclusion)] is 100 percent. If exclusion
does not occur, then more tests are introduced. Eventually, if exclusion does not
occur, the POP is calculated based on the frequency which the specific gene or genes
occurs in the general population. However, this calculation may sound weighter than
it is. For example, a PI [(Paternity Index)] of five thousand to one would translate
to a probability of paternity of 99.98%. Yet courts are reluctant to find paternity
based on such figures because in a city with a same-race population of 500,000, or
even 500,001, one hundred other men might theoretically be the father.
See E. Donald S~, Stewart R~, & Claudia L. P~, The DNA Paternity Test: Legislating the
Future Paternity Action, 7 J.L. & Health 1, 26-28 (1993) (footnotes and citations
omitted). DNA testing, combined with other genetic marking tests, can raise the POP
to above 99.999999 percent. See id. at 30. See also Memoradum from the Office of General Counsel, Region VII, to ARC, Management and Operations
Support, SSA re: Use of Blood Testing with a Probability Factor of 95.89% to Establish
Inheritance Rights of a Child Under Nebraska Law- - Daniel J. C~, ~ (May 20, 1997).
In this case, we believe that the sibship DNA tests results alone are not "clear and
convincing proof" that Jesse is the son of the deceased number holder. Initially,
we note that genetic tests have not been performed to prove that the alleged full
sibling was the biological son of the deceased number holder. Even if Jesse's alleged
full sibling was the biological son of the deceased number holder, DNA test results
show only a probability of full-siblingship of 96.8 percent. A review of relevant
case law also shows that Jesse has not established "clear and convincing proof" of
paternity based on additional facts in this case.
In S~, 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 number holder was the father of her child. The plaintiff
did not name a father on the child's birth certificate.
She had alleged that the deceased number holder had brought money, toys, and food
for the child but she had kept no records. She alleged that the deceased number holder
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 number holder had never taken out an insurance
policy on the child. The deceased number holder'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
number holder'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 number holder 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 deceased number holder,
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 number holder 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 deceased number holder, other
circumstances, particularly the claimant's mother's acknowledgment that the deceased
number holder 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 deceased number holder. Id.
In re Estate of B~, 603 N.W.2d at 694-95, a Nebraska Appeals Court found clear and convincing proof
of paternity during a probate proceeding of two children born out of wedlock.
Decedent's alleged daughter's evidence of paternity was based on testimony that decedent
had treated her as his daughter, a birth certificate that listed decedent as the father,
testimony indicating a significant relationship between decedent and daughter, and
testimony indicating that decedent had lived with the daughter's mother. See id. at 694. Decedent's alleged son's paternity was established based on testimony by
son's mother that he was decedent's son, testimony that son had kept in contact with
decedent throughout his lifetime, and decedent and son shared the same first and middle
name. See id. at 694-95.
In the fact situation you present, we believe a Nebraska court would not find "clear
and convincing proof" that Jesse K. S~ is the child of the deceased number holder
for intestacy purposes. While there is evidence suggesting that the deceased number
holder was the father of Jesse, we cannot say that there is "the amount of evidence
which produces in the trier of fact a firm belief or conviction about the existence
of a fact to be proved."
See In re Estate of B~, 603 N.W.2d at 693. We do not have DNA testing establishing that the alleged full
sibling was the son of the deceased number holder. DNA test results show only a probability
of full-siblingship of 96.8 percent. Ms. S~ and the deceased number holder were not
married and did not live together when Jesse was conceived or anytime thereafter.
The deceased number holder never provided support nor acknowledged paternity in writing
during the eight years of Jesse's life that he was alive. Jesse's birth certificate
does not reflect that the deceased number holder was his father. The statements written
about Jesse were written eleven years after Jesse's birth. Based on the materials
submitted, we believe it is reasonable to conclude that the evidence does not establish
paternity by "clear and convincing proof" within the meaning of Nebraska's intestacy
statute, and the requirements for entitlement under section 216(h)(2)(A) are not met
Frank V. S~ III
Chief Counsel, Region VII
Christina S. Y~
Assistant Regional Counsel