TN 58 (09-16)

PR 01115.032 New Hampshire

A. PR 16-168 Sufficiency of Evidence to Establish Paternity of Deceased NH under New Hampshire Law

Date: August 18, 2016

1. Syllabus

The number holder (NH) was domiciled in New Hampshire when he died; therefore, we look to the New Hampshire law to determine the parent-child relationship. A child born to unwed parents shall inherit from his father as if born in lawful wedlock, if any of the following conditions is met: intermarriage of the parents after the child’s birth; acknowledgment of paternity or legitimation by the father; a court decree adjudges the decedent to be the father before his death; paternity is established after the death of the father by clear and convincing evidence; or the decedent had adopted the child.

In this case, there is no evidence of intermarriage, acknowledgment of paternity, a court decree, or adoption. Therefore, the only relevant question is whether the NH’s paternity has been established by clear and convincing evidence. A statement from the claimant’s mother confirming that she and the NH were in a relationship at the time of the claimant’s conception and that the NH is the claimant’s father, together with the DNA test and the other evidence submitted, would likely satisfy both New Hampshire and SSA requirements for establishing paternity, particularly in the absence of evidence to the contrary.

2. Opinion

I. Question Presented

Whether a child of unwed parents conceived before the number-holder’s (NH) death, but born after, has any inheritance rights under New Hampshire intestacy law, so as to be eligible for child’s survivor benefits, based on a DNA test and other evidence generated after the NH’s death

II. Short Answer

This Memorandum responds to your request for an opinion concerning whether J~, the claimant, can establish that he is entitled to child’s survivor benefits on the account of the deceased NH, B~, based on (1) DNA test results establishing a 99.99% probability that the claimant is the grandchild of the NH’s parents; (2) written statements from the NH’s mother and sister; and (3) the NH’s obituary, listing his “longtime girlfriend” and “unborn child” among his survivors. As explained below, we believe that this evidence is likely sufficient to establish paternity under New Hampshire law and SSA regulations, such that the claimant is entitled to benefits – although one more piece of evidence (which has been requested) would significantly bolster the case.

III. Background

The NH was domiciled in New Hampshire when he died in January 2014. See Death Certificate. The claimant was born in July 2014 in Rhode Island. See Birth Certificate. His birth certificate lists his mother as M~ (M~); the entry for his father’s name is blank. Id.

In May 2016, M~ filed an application for child’s survivor benefits on behalf of the claimant on the NH’s record. See Application. In support, she submitted:

- A DNA test report indicating a 99.99% probability that G~ and P2~ (listed on the NH’s death certificate as his parents (see Death Certificate)) are the claimant’s grandparents (see DNA Test Report);

- A copy of the NH’s obituary, published in the Berlin (New Hampshire) Daily Sun, listing among his survivors “his longtime girlfriend, M~” and “his unborn child – due June 2014,” as well as one brother (see Obituary);

- A June 2016 letter from P2~, acknowledging the claimant as her grandson, and explaining that she “made notice in [the NH’s] obituary that M~ was pregnant upon his death” (see P2~ Letter);

- A statement from P~, the NH’s sister, acknowledging the claimant as her nephew, and likewise asserting that M~ was pregnant at the time of the NH’s death (see P~ Letter).

There is no indication that the NH and M~ ever married. Nor is there any court order of paternity or written acknowledgment of paternity from the NH. Nor is there any indication that the NH ever supported, or indicated an intent to support, his future child.

IV. Applicable Law

A. Federal Law

The Social Security Act (the Act) provides for the payment of child’s survivor benefits to a child of a number holder who dies when fully or currently insured if the child has filed an application for benefits and was unmarried and under age 18 (or age 19 if a full-time student) at the time the application was filed and was dependent upon the number holder at the time of death.1 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350 (2006); POMS RS 00203.001.A.1. The Act provides that a claimant is the “child” of an insured individual if any of the following conditions is met:

1. The claimant could inherit the insured’s personal property as his or her natural child under the relevant state’s inheritance laws;

2. The insured and the claimant’s mother went through a ceremony, which would have resulted in a valid marriage between them except for a legal impediment;

3. The claimant is the insured’s natural child and the insured 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

4. The insured 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)(1)-(4). Only the first of these conditions is potentially applicable here.

According to the POMS, the adjudicator must first determine whether the claimant could inherit under the relevant state inheritance law; if so, the inquiry must end. POMS GN 00306.100(A)(1). Where the insured is deceased, the Commissioner applies such law as would be applied in determining the devolution of intestate personal property by the courts of the state where the insured 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.2.a. Here, the NH died while domiciled in New Hampshire; accordingly, New Hampshire law applies to the claimant’s claim.

B. New Hampshire Law

Under New Hampshire’s intestacy statute, the part of the intestate estate not passing to the surviving spouse, or the entire intestate estate if there is no surviving spouse, passes to the decedent’s issue. N.H. Rev. Stat. Ann. § 561:1(II)(a). A child born to unwed parents shall inherit from his father as if born in lawful wedlock, if any of the following conditions is met:

a. Intermarriage of the parents after the child’s birth;

b. Acknowledgment of paternity or legitimation by the father;

c. A court decree adjudges the decedent to be the father before his death;

d. Paternity is established after the death of the father by clear and convincing evidence; or

e. The decedent had adopted the child.

N.H. Rev. Stat. Ann. § 561:4(II); see also POMS GN 00306.560(A). In this case, there is no evidence of intermarriage, acknowledgment of paternity, a court decree, or adoption, and therefore the only relevant question is whether the NH’s paternity has been established by clear and convincing evidence. See N.H. Rev. Stat. Ann. § 561:4(II)(d).

To date, there is no caselaw interpreting this provision of the New Hampshire intestacy laws, and therefore it is unclear what evidence would suffice to meet the “clear and convincing evidence” requirement. New Hampshire law however, does authorize genetic testing in cases where paternity is a contested and relevant issue. N.H. Rev. Stat. Ann. § 522:1. If the genetic testing shows that the alleged father is not excluded and that the probability of the alleged father’s paternity is 97% or higher, the alleged father is presumed to be the father; this presumption can be rebutted by clear and convincing evidence. N.H. Rev. Stat. Ann. § 522:4(I)(d). There are no statutes or New Hampshire cases concerning genetic testing of the alleged father’s relatives.

V. Analysis

Despite the lack of New Hampshire caselaw directly on point, the evidence submitted to date appears likely to meet the “clear and convincing evidence” standard set forth in N.H. Rev. Stat. Ann. § 561:4(II)(d). The DNA test indicating a 99.99% possibility that the NH’s parents are the claimant’s grandparents is particularly strong evidence. Although neither New Hampshire statutes nor caselaw specifically address genetic testing of relatives other than the alleged father, courts in other states with statutes authorizing proof of paternity by genetic testing have relied on blood test results of both alleged full siblings and alleged paternal grandparents in paternity proceedings. See In re Estate of Wilkins, 707 N.Y.S.2d 774, 777-78 (N.Y. Sur. Ct. 2000) (finding that genetic test showing 99.69% possibility of grandparentage met clear and convincing standard, but remanding for further consideration of conflicting genetic test results); Lach v. Welch, No. FA930063955, 1997 WL 536330, at *5, *7 (Conn. Super. Ct. Aug. 15, 1997) (discussing reliability of testing relatives for purposes of establishing paternity, citing cases, and ordering testing of alleged paternal grandparents); Tipps v. Metropolitan Life Ins. Co., 768 F. Supp. 577, 580 (S.D. Tex. 1991) (relying on genetic testing of alleged paternal grandparents); 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). New Hampshire courts would likely find this authority persuasive, and conclude that the genetic test results created a rebuttable presumption that the NH was the claimant’s father. See N.H. Rev. Stat. Ann. § 522:4(I)(d).

Moreover, nothing in the evidence submitted to date appears sufficient to rebut this presumption. See id. (presumption can be rebutted by clear and convincing evidence). At most, the NH’s obituary indicates that he has one surviving brother (see Obituary), and the DNA test confirming likely grandparentage is also consistent with the possibility that the NH’s brother is the claimant’s father. But there is nothing in the evidence submitted to date to even suggest this possibility.2 P2~ described M~ as the NH’s “longtime girlfriend” in his obituary, and listed his “unborn child – due June 2014” among his survivors (see Obituary); she also submitted a statement confirming that M~ was pregnant at the time of the NH’s death (see P2~ Letter). P~ made a similar statement. See P~ Letter. In any event, SSA cannot require the NH’s brother to undergo genetic testing, or imply that such further testing is required. See POMS GN 00306.125(B)(1)(c).3

The case would, however, be bolstered significantly by a statement from M~ asserting that the NH is the claimant’s father. In the sole Regional Chief Counsel Precedent Decision interpreting N.H. Rev. Stat. Ann. § 561:4(II)(d), SSA concluded that statements from the child’s mother and her friends attesting that the NH was the child’s father, together with statements from three of the NH’s relatives that the NH had acknowledged paternity to them, and hospital forms listing the NH as the child’s father, were sufficient to meet the “clear and convincing evidence” standard. See POMS PR § 01115.032 (Child Relationship Determination – Roberta L.D.) (Apr. 27, 2000). No DNA evidence was presented in that case. See id. Here, by contrast, there is DNA evidence, but it is ambiguous. Moreover, the claimant’s birth certificate does not list any father (see Birth Certificate), neither P2~ nor P~ ever stated outright that the NH was the claimant’s father (although the context of the letters implies it), and M~ has not, to date, submitted any statement in support of the claim. Since we cannot request further genetic testing from the NH’s brother, it appears that the next best option is to request a statement from M~, confirming that she and the NH were in a relationship at the time of the claimant’s conception, and that the NH is the claimant’s father. This evidence, together with the DNA test and the other evidence submitted to date, would likely satisfy both New Hampshire and SSA requirements for establishing paternity – particularly in the absence of evidence to the contrary. The Field Office has already contacted M~ to request a statement, and is now awaiting a response.

VI. Conclusion

Provided that M~ provides the requested statement, we believe that New Hampshire courts would likely find that the claimant could inherit from the deceased NH as his child under New Hampshire’s intestacy statute.

Christopher Michaels

Acting Regional Chief Counsel

By: /s/ Natasha Oeltjen

Assistant Regional Counsel

B. PR 04-063 Child Relationship Determination -- Roberta L. D~

DATE: April 27, 2000

1. SYLLABUS

Under New Hampshire law, one of the provisions under which a child may inherit from the NH is if paternity is established after the NH's death by clear and convincing evidence. In this case, there is clear and convincing evidence of paternity. Written statements from numerous friends of the parties support the child's mother's allegations that the deceased NH was the child's father. In addition, the NH's mother, father, and sister have all submitted statements indicating that the NH told each of them that he was the child's father. The NH's mother attended medical appointments with the child's mother, and she was present at the child's birth. Hospital forms list the NH as the father. Moreover, there is no contrary evidence submitted by any party that would tend to show that the NH was not the child's father.

2. OPINION

This is in response to your memo of April 11, 2000, requesting an opinion whether sufficient evidence has been submitted to support a finding that the deceased wage earner is the father of the claimant. It is our opinion that there is sufficient evidence to conclude that the claimant is entitled to benefits on the deceased wage earner's account.

The facts related in your request are as follows. Kathleen L~ filed an application for child's benefits for Roberta L. D~ on February 9, 2000, alleging that the father of the child was Robert D~. Ms. L~ and the wage earner began a relationship in February 1999, at which time both parties were unmarried. The wage earner died in an automobile accident on August XX, 1999, while domiciled in New Hampshire. Roberta L. D~ was born on January XX, 2000.

Entitlement cannot be established under section 216(h)(3) of the Social Security Act because there is no court order of paternity or written acknowledgement of paternity by the wage earner, and the wage earner was not living with or contributing to the support of the applicant at the time of his death. However, under section 216(h)(2) of the Act, the applicant would be entitled to benefits if she were found to be able to inherit the intestate personal property of the wage earner under the law of New Hampshire, the state in which the wage earner was domiciled at the time of his death.

New Hampshire law provides that a child born of unwed parents shall inherit from her father under any of the following conditions: (a) intermarriage of the parents after the birth of the child; (b) acknowledgment of paternity or legitimation by the father; (c) a court decree adjudges the decedent to be the father before his death; (d) paternity is established after the death of the father by clear and convincing evidence; or (e) the decedent has adopted the child. New Hampshire RSA 561:4.

The conditions in (a), (c), and (e) are inapplicable here. With regard to (b), the statute is silent as to whether the acknowledgment of paternity must be in writing signed by the father, or may also be oral. There are no New Hampshire cases interpreting this provision. However, we believe clause (d) provides a basis to establish paternity in the circumstances of this case. The standard of "clear and convincing" means that more than a preponderance of the evidence is required, but less than proof beyond a reasonable doubt is required. It is such evidence as will provide a firm belief as to the truth of the allegations made, and is obviously dependent on the particular facts of each case.

Here, written statements from numerous friends of the parties support Ms. L~'s allegations that the deceased wage earner was Roberta's father. In addition, the wage earner's mother, father, and sister have all submitted statements indicating that the wage earner told each of them that he was the child's father. The wage earner's mother attended medical appointments with Ms. L~, and she was present at the child's birth. Hospital forms submitted with your request list the wage earner as the father. We also note that in the materials you furnished there is no contrary evidence submitted by any party that would tend to show that the wage earner was not the child's father.

We believe the courts of New Hampshire would find that this evidence constitutes clear and convincing evidence of paternity, such that the child would be allowed to inherit the intestate property of the wage earner. Accordingly, you may conclude that the child is entitled to benefits on the wage earner's account.

C. PR 01-160 Child Relationship Determination — Roberta L. D~

DATE: April 27, 2000

1. SYLLABUS

Written statements from numerous friends of the NH and the child's mother attesting to the NH's paternity, statements from the NH's mother, father, and sister that the NH orally admitted paternity, the fact that the NH's mother attended medical appointments with the child's mother and the child's birth, and the fact that there was no contrary evidence constitutes clear and convincing evidence of paternity under New Hampshire law.

The New Hampshire statute does not specify whether acknowledgement of paternity must be in writing or may be oral and there is no case law interpreting this intestacy provision.

2. OPINION

This is in response to your memo of April 11, 2000, requesting an opinion whether sufficient evidence has been submitted to support a finding that the deceased wage earner is the father of the claimant. It is our opinion that there is sufficient evidence to conclude that the claimant is entitled to benefits on the deceased wage earner's account.

The facts related in your request are as follows. Kathleen L~ filed an application for child's benefits for Roberta L. D~ on February XX, 2000, alleging that the father of the child was Robert D~. Ms. L~ and the wage earner began a relationship in February 1999, at which time both parties were unmarried. The wage earner died in an automobile accident on August XX, 1999, while domiciled in New Hampshire. Roberta L. D~ was born on January XX, 2000.

Entitlement cannot be established under section 216(h)(3) of the Social Security Act because there is no court order of paternity or written acknowledgement of paternity by the wage earner, and the wage earner was not living with or contributing to the support of the applicant at the time of his death. However, under section 216(h)(2) of the Act, the applicant would be entitled to benefits if she were found to be able to inherit the intestate personal property of the wage earner under the law of New Hampshire, the state in which the wage earner was domiciled at the time of his death.

New Hampshire law provides that a child born of unwed parents shall inherit from her father under any of the following conditions: (a) intermarriage of the parents after the birth of the child; (b) acknowledgment of paternity or legitimation by the father; (c) a court decree adjudges the decedent to be the father before his death; (d) paternity is established after the death of the father by clear and convincing evidence; or (e) the decedent has adopted the child. New Hampshire RSA 561:4.

The conditions in (a), (c), and (e) are inapplicable here. With regard to (b), the statute is silent as to whether the acknowledgment of paternity must be in w