This memorandum is in response to your request for an opinion regarding whether or
not a laboratory report is sufficient evidence to establish the relationship of the
child, L~ (L~), to the number holder, E~(E~), under Oklahoma State law or under federal
law, as described by section 216(h)(2) of the Social Security Act, 42 U.S.C. 416(h)(2),
and codified in recently revised regulations at 20 C.F.R. 404.354-55. See 63 Fed. Reg. 57,590 (1998) (attached).
In this case, a DNA paternity evaluation report was submitted as evidence of N~'s
paternity in a request for survivor's benefits for L~. The facts relating to this
request reveal that L~ was born to S~(S~) on May in Hobart, Oklahoma.
No father's name was shown on the birth certificate at the time of L~'s birth. N~
and C~ never married prior to N~'s death on November XX, 1998. N~ never acknowledged
L~ as his child and was not declared by a court to be the father of L~. Moreover,
N~ never lived with or supported L~.
On December XX, 1998, C~ filed for survivor's benefits for L~, claiming that N~ was
L~'s biological, or natural, father. Submitted with the application was a DNA paternity
evaluation report dated October XX, 1995, which was prepared by LabCorp, a laboratory
in Burlington, North Carolina. The report based its evaluation upon DNA samples from
L~, and N~. The report stated that the probability is 99.32 percent that N~ is L~'s
father, as compared to an untested, randomly chosen man of the North American Caucasian
The Social Security Act provides that one must apply State inheritance laws when determining
if an applicant is a child for Social Security benefit eligibility purposes. Section
216(h)(2)(A) of the Act, 42 U.S.C. 416(h)(2)(A). Under the revised regulations, a
child's relationship to a number holder can now be established without the need for
a court determination of paternity. The regulations provide that an insured's natural
child may be eligible if he or she could inherit personal property under State inheritance
laws if the insured died without a will. However, any State inheritance law which
requires that an action be taken within a specified period of time after the insured's
death or the child's birth, or that an action to establish paternity must have been
started or completed before the insured's death, will not be applied. Paternity will
be established by 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.
Five questions will be addressed in this opinion:
(1) What standard of proof does Oklahoma Law require in order to establish paternity?
(2) What does Oklahoma law require in order to establish inheritance rights?
(3) Does Oklahoma law set a time limit for establishing inheritance rights?
(4) Do the new Social Security regulations allow the payment of benefits under section
216(h)(2) even if a child does not technically meet state law requirements, including
any time limit restrictions?
(5) If L~'s relationship to N~ is established, for what month can he first be paid
First, under Oklahoma law, evidence of statistical probability of paternity established
at 98 percent or more creates a conclusive presumption of paternity. See Okla. Stat. Ann. Tit. 10, 504(D) (West, WESTLAW through end of 1997 1st Sess.). Since
the lab report shows a 99.32 percent probability of paternity, L~ has provided evidence
which creates a conclusive presumption that N~ is L~'s father.
Second, Oklahoma law establishes inheritance rights for a child born out of wedlock
whenever (1) the father, in writing, acknowledges himself to be the child's father,
(2) the father and mother intermarried subsequent to the child's birth, and the father,
after such marriage, acknowledged the child as his own or adopted him into his family,
(3) the father publicly acknowledged such child as his own, receiving it as such,
with the consent of his wife, if he is married, into his family and otherwise treating
it as if it were a child born in wedlock, or (4) the father was judicially determined
to be such in a paternity proceeding before a court of competent jurisdiction. See Okla. Stat. Tit. 84, 215(d) (West, WESTLAW through end of 1997 1st Sess.). Because
the first three requirements contemplate actions taken by an alleged father and because
N~ never took such actions, the only remaining option left for L~ to establish inheritance
rights from N~ under state law is a judicial determination of paternity.
The third question concerns whether Oklahoma state law precludes a determination of
paternity after the alleged father's death. Even though the Oklahoma statute reveals
no express limitation upon the timing of such a determination of paternity, the Oklahoma
Supreme Court has suggested that an adjudication of paternity after the death of the
father does not give rise to inheritance rights. See Estate of King, 837 P.2d 463, 467 (Okla. 1990). Thus, even if L~ were to now obtain a court determination
of paternity, such a determination might not suffice to establish L~'s inheritance
rights under Oklahoma state law. Id. However, this question need not be resolved here in order to determine L~'s eligibility
to receive surviving child's benefits because new federal regulations changed the
way that Social Security Administration (Agency) applies state inheritance laws. Under
the new regulations, the Agency will not apply any state inheritance law requirement
that an action to establish paternity must have been started or completed before the
worker's death. Accordingly, for social security purposes, L~ may establish his relationship
to N~ after N~'s death without regard to state time limitations.
In response to the fourth question, the new regulations also provide that if an applicable
State inheritance law requires a court determination of paternity (as in this case),
the Agency will not require that a child claimant actually obtain such a determination,
but will decide the child's paternity by using the standard of proof that the State
court would use as the basis for a determination of paternity. 20 C.F.R. 404.355(b)(2).
Therefore, the Agency can determine L~'s relationship to the deceased number holder
without a court determination of paternity. Because the DNA tests administered in
this case would be deemed to conclusively prove paternity by any Oklahoma court, the
Agency should treat L~ as if he had established inheritance rights under Oklahoma
law. Accordingly, under the new regulations, the Agency should consider L~ as N~'s
child for benefit purposes under section 216(h)(2) of the Social Security Act.
The fifth question concerns the first month for which L~ can be entitled to benefits.
In order to answer this question, compliance with the applicable Agency regulations
concerning entitlement and payment must be established. Entitlement for child's benefits
is based upon whether the applicant is unmarried and under the age of eighteen, has
filed an application, is the insured person's child, and is dependent upon the insured.
See 20 C.F.R. 404.350. In this case, L~ is unmarried and under the age of eighteen. An
application has been filed and, based upon DNA testing as discussed above, paternity
has been established. See 20 C.F.R. 404.354(a) and (b); 404.355(a). In addition, once L~ is established as N~'s
natural child, he is considered dependent upon N~. See 20 C.F.R. 404.360 and 404.361. Once entitlement is established, 20 C.F.R. 404.352(a)
provides that, when the insured is deceased, a child's benefits begin with the first
month covered by the application in which all other requirements for entitlement are
met. Applications for child's benefits not based on disability can be retroactive
for up to six months immediately before the month of application. 20 C.F.R. 404.621(a)(1)(ii)(1998).
Since L~'s applications for benefits was filed in December 1998, one month after N~'s
death, L~ can be entitled to benefits effective with the month of death, November
Enclosure: Case file
Copr. (C) West 1998 No Claim to Orig. U.S. Govt. Works
63 FR 57590-01 1998 WL 745835 (F.R.) (Cite as: 63 FR 57590)
RULES and REGULATIONS
SOCIAL SECURITY ADMINISTRATION
20 20 C.F.R. 404.1512(D)(2)(1998). Part 404
Application of State Law in Determining Child Relationship
Wednesday, October 28, 1998
* ~AGENCY: Social Security Administration (SSA).
ACTION: Final rules.
SUMMARY: These final regulations revise our rules on determining whether a natural child has
inheritance rights under appropriate State law and therefore may be entitled to Social
*~ Security benefits as the child of an insured worker. Specifically, they revise
our rules to explain which version of State law we will apply, depending on whether
the insured is living or deceased, how we will apply State law requirements on time
limits for determining inheritance rights, and how we will apply State law requirements
for a court determination of paternity. They also clarify our current rule on determining
an applicant's status as a legally adopted child of an insured individual.
EFFECTIVE DATE: These regulations are effective November 27, 1998.
Time for Determining Relationship of Natural Child
Section 216(h)(2)(A) of the Social Security Act (the Act) states in part that in determining
whether an applicant is the child of a deceased insured individual, the Commissioner
of Social Security (the Commissioner) shall apply such law as would be applied in
determining the devolution of intestate personal property by the courts of the State
in which the insured individual was domiciled at the time of his or her death.
A child of a valid marriage has inheritance rights under the laws of all States. When
determining the relationship of a child born out of wedlock to a deceased insured
person under section 216(h)(2)(A), we have always looked to the law that was in effect
in the insured's State of domicile at the time he or she died. Some Federal courts
have also interpreted the provision this way. See Schaefer on behalf of Schaefer v. Heckler, 792 F.2d 81 (7th Cir. 1986); Ramon v. Califano, 493 F. Supp. 158 (W.D. Tex. 1980); and A~ v. Califano, 452 F. Supp. 205 (D. Md. 1978).
Other courts have adopted different interpretations. For example, in Owens v. Schweiker, 692 F.2d 80 (9th Cir. 1982), the court held that section 216(h)(2)(A) should be
read to require the use of the State law of domicile that was in effect at the time
of our determination on the child's claim. We, therefore, published a final rule (49
FR 21512) on May 22, 1984, amending s 404.354 of our regulations to clarify and reinforce
our policy on applying State inheritance laws. However, after we amended our regulations,
we also published Acquiescence Ruling (AR) 86-17(9) to clarify that we would apply
the Owens decision to claims of children residing in the 9th Circuit. (We are publishing
a notice today to rescind AR 86-17(9) effective with the effective date of these final
Still other courts have held that the relevant law is the law in force at the time
the child applies for benefits (see Cox on behalf of Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982); and Hart by and through Morse v. Bowen, 802 F.2d 1334 (11th Cir. 1986)).
Recognizing that the language in section 216(h)(2)(A) could be viewed as ambiguous
and has not been interpreted the same by all courts, we are amending our policy as
stated in s404.354(b). We believe that a policy that permits us to apply any of several
potentially applicable State inheritance laws would best effectuate Congress' intent
with regard to serving the interests of a surviving child born out of wedlock. Therefore,
when the insured is deceased, we will determine the status of such a child by applying
the State inheritance law that is in effect when we adjudicate the child's claim for
benefits. If the child does not have inheritance rights under that version of State
law, we will apply the State law that was in effect when the insured died, or any
version of State law in effect from the time the child first could be entitled to
benefits based on his or her application until the time we make our final decision
on the claim, whichever version is more beneficial to the child.
We also explain in these final regulations how we will determine which law was in
effect as of the date of death. First we will look to the inheritance law that was
in effect on the date of the insured's death. Then, if a law enacted after the insured's
death is retroactive to the date of his or her death, we will apply that law. However,
if a law in effect at the time of death was later declared unconstitutional, we will
apply the State law which superseded the unconstitutional law.
Regarding the child of a living insured worker, our rule in s404.354(b) provided that
the Commissioner will apply the inheritance law that was in effect when the child's
claim was filed. We are amending ss404.354 and 404.355 to clarify that we will look
to the versions of State inheritance laws that were in effect from the first month
for which the child could be entitled to benefits up to and including the time of
our final decision and we will apply the version most beneficial to the child.
State Law Time Limits
As previously stated, section 216(h)(2)(A) of the Act provides that, in determining
whether an applicant is the child of a deceased insured individual, the Commissioner
shall apply such law as would be applied in determining the devolution of intestate
personal property by the courts of the State in which the insured individual was domiciled
at the time of his or her death. That section further states that an applicant who,
according to such law, would have the same status relative to taking intestate personal
property as a child or parent shall be deemed such respective child or parent.
Many State laws impose time limits within which someone must act to establish paternity
for purposes of intestate succession. Such time limits are intended to provide for
an orderly and expeditious settlement of estates. Since this is not the purpose of
Social Security benefits for children, we provide in these final regulations that
we will not apply a State's time limits within which a child's relationship must be
established when we determine the child's status under section 216(h)(2)(A). Not applying
time limits is consistent with our belief that such a policy on applying State inheritance
laws will best serve the interests of the children Congress sought to protect when
it enacted section 216(h)(2)(A) of the Act.
Court Order Requirements
Some State laws require a court determination of paternity for a child born out of
wedlock to have inheritance rights. In determining a child's status under section
216(h)(2)(A), our policy has been to require that a claimant submit a court determination
of paternity if one is required under State inheritance law. However, we are revising
this policy by stating in these rules that, regarding a State that requires a court
determination of paternity, we will use the standard of proof that the State court
would use as the basis for such a determination, but we will not actually require
a determination by a State court. Of course, if a State court with jurisdiction over
the matter declares that a child can take a child's share of an insured individual's
estate under intestate inheritance laws, or if a State court determines a child's
paternity and such determination would prevail in that State's intestacy proceedings,
SSA could generally rely on such State court findings. So, while we will not require
an applicant to * ~ obtain a State court's determination, we will be guided by such
determination that an applicant has obtained, subject to the prerequisites stated
in Social Security Ruling 83-37c for accepting State court determinations. Those prerequisites
are: (1) an issue in a claim for Social Security benefits previously has been determined
by a State court of competent jurisdiction; (2) this issue was genuinely contested
before the State court by parties with opposing interests; (3) the issue falls within
the general category of domestic relations law; and (4) the resolution by the State
trial court is consistent with the law enunciated by the highest court in the State.
If we evaluate paternity by using the same standards that the appropriate State court
would use if the issue were properly before it, we believe we will satisfy the intent
of section 216(h)(2)(A) that we apply "such law as would be applied" by the State
court to determine inheritance rights. We believe that the requirement of section
216(h)(2)(A) to apply State law will be satisfied if we apply the same substantive
standard as a State court would apply to determine paternity.
Legally Adopted Child
The provisions for paying benefits to children of an insured individual were added
to the Act by the Social Security Act Amendments of 1939 (Public Law 76- 379). Our
policy for determining whether an applicant qualifies as the "child" of an insured
individual has always been that we apply State law on inheritance rights to determine
the status under the Act of a natural child, i.e., biological child, and State law
on adoption to determine the status of a child legally adopted by the insured. To
avoid any uncertainty about our policy, we are amending our regulations to state more
clearly how we determine a child's status as an individual's natural child or adopted
Section 202(d)(1) of the Act provides for benefits to a child as defined in section
216(e) of the Act. Section 216(e) states, in part, that the term "child" means the
child or legally adopted child of an individual. Section 216(e) further states the
requirements for a person to be deemed the legally adopted child of a deceased individual.
Section 216(e) thus distinguishes between a natural child and an adopted child.
Further, section 216(h)(2)(A) provides that the status of an applicant for benefits
as a child (as opposed to a legally adopted child, a stepchild, or other type of individual
who can qualify under section 216(e) of the Act as a "child" for purposes of section
202(d) of the Act) is determined by applying the law on devolution of intestate personal
property that would be applied by the courts in the State of the insured individual's
domicile. This is a test for the status of a natural child.
The legislative history of sections 216(e) and 216(h)(2)(A) shows that Congress intended
us to use section 216(h)(2)(A) to determine the status of natural children. Section
209(k), enacted in 1939, provided the first definition of "child" by stating in part
that the term means the child of an individual, the stepchild of an individual, and
a child legally adopted by an individual before the adopting individual attained age
60 and prior to the beginning of the twelfth month before the month in which he or
she died. Section 209(m), also enacted in 1939, contained language that is the same
as the present section 216(h)(2)(A) and described how we determine whether an applicant
is the child of the insured individual.
Then in 1946, Congress amended section 209(k) to allow some children adopted by individuals
aged 60 or older to receive benefits. Congress' explanation of the amended section
209(k) was that under existing provisions of the Act, a stepchild or an adopted child
is not a "child" for benefit purposes unless certain conditions are met. H.R. Rep.
No. 2526, 79th Cong., 2d Sess. 26 (1946); S. Rep. No. 1862, 79th Cong., 2d Sess. 34
(1946). Thus, since the first provision for paying benefits to children of an insured
worker, there has been a clearly defined distinction between natural children and
adopted children and clearly defined conditions for determining the status of an adopted
child, which conditions are not affected by section 216(h)(2)(A).
Along with the structure of the Act and the legislative history of provisions defining
"child," we have consistently interpreted the State intestacy law provisions of section
216(h)(2)(A) as not applying to children legally adopted by the insured individual.
Our first regulation on the status of a child was published in 1940. That regulation
defined a "child" as a son or daughter (by blood) of a wage earner and then went on
to define "adopted children." 5 FR 1880 (May 21, 1940). We have maintained that position
from the first regulation to the present. In the present s404.354, we state that a
child may be related to the insured as a natural child, legally adopted child, stepchild,
grandchild, stepgrandchild, or equitably adopted child. In s404.355, we explain the
conditions for eligibility as a natural child, which include applying State inheritance
law, and in s404.356 we state the requirement for eligibility as a legally adopted
In these final regulations, we are amending s404.356 to explicitly provide that we
will determine an applicant's status as a legally adopted child by applying the adoption
laws of the State or foreign country where the adoption took place.
Addition of Northern Mariana Islands
Further, we are adding the Northern Mariana Islands to the names of entities whose
laws we will use to determine a child's relationship to the insured individual, depending
on his or her permanent home.
Comments on Notice of Proposed Rulemaking (NPRM)
On January 30, 1997, we published proposed rules in the Federal Register at 62 FR
4494 and provided a 60-day period for interested individuals to comment. We received
three letters with comments. One commenter said the proposed regulations' use of the
law most beneficial to the interests of the child is a positive change which is consistent
with the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public
Law 104-193). Following are summaries of the other two comments and our responses
Comment: One commenter suggested that a mechanism be implemented whereby SSA would
notify the State Child Support Enforcement agency of all paternity determinations
Response: A determination of paternity made by SSA is not the equivalent of an administrative
order of paternity required by the States. Paternity determinations made by SSA are
used only for SSA purposes.
Comment: One commenter was concerned that proposed s404.355 might be interpreted such
that a child born out of wedlock for whom paternity was not established while the
insured was alive would not qualify as the child of the insured. The commenter suggested
that we add clarifying language to s 404.355(a)(3) to address this issue.
Response: We have revised s404.355(a) to clarify that paragraphs 1 through 4 are alternative
means of establishing a child's status under the Act. As revised, subsection (a) provides
that a child may be eligible for benefits as the insured's natural child if the child
qualifies under any of the four paragraphs.
After considering the comments on the proposed regulations, we have revised s 404.355(a),
as discussed in the response to the public comment. We *57593 have also revised paragraph
(b)(3) of s404.355 to clarify the rule on selecting the State law that we apply in
determining the relationship between a child and an insured individual when the insured
is alive at the time the child applies for benefits on the insured's earnings record.
As revised, paragraph (b)(3) provides that we determine the State where the insured
individual had his or her permanent home when the child applies for child's insurance
benefits, and we apply the law of that State. In addition, we have made several minor,
nonsubstantive revisions to the rules. With these exceptions, we are publishing the
proposed regulations unchanged as final regulations.
Regulatory Flexibility Act
We certify that these final regulations will not have a significant economic impact
on a substantial number of small entities because they affect only individuals. Therefore,
a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as
amended, is not required.
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB) and determined that
these final rules do not meet the criteria for a significant regulatory action under
Executive Order 12866. Thus, they were not subject to OMB review.
Paperwork Reduction Act
These final regulations impose no additionall reporting or record keeping requirements
necessitating clearance by OMB.
List of Subjects in 20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors
and Disability Insurance, Reporting and record keeping requirements, Social Security.
(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social Security-Disability
Insurance; 96.002 Social Security-Retirement Insurance; 96.004 Social Security-Survivors
Dated: October 20, 1998.
Commissioner of Social Security.
For the reasons set out in the preamble, we are amending subpart D of part 404 of
chapter III of title 20 of the Code of Federal Regulations as set forth below.
PART 404FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )
1. The authority citation for subpart D of part 404 continues to read as follows:
Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225, 228(a)-(e), and 702(a)(5)
of the Social Security Act (42 U.S.C. 402, 403(a) and (b), 405(a), 416, 423, 425,
428(a)-(e), and 902(a)(5)).
2. Section 404.354 is revised to read as follows:
s404.354 Your relationship to the insured.
You may be related to the insured person in one of several ways and be entitled to
benefits as his or her child, i.e., as a natural child, legally adopted child, stepchild,
grandchild, stepgrandchild, or equitably adopted child. For details on how we determine
your relationship to the insured person, see ss404.355 through 404.359.
3. Section 404.355 is revised to read as follows:
s404.355 Who is the insured's natural child?
(a) Eligibility as a natural child. You may be eligible for benefits as the insured's
natural child if any of the following conditions is met:
(1) You could inherit the insured's personal property as his or her natural child
under State inheritance laws, as described in paragraph (b) of this section.
(2) You are the insured's natural child and the insured and your mother or father
went through a ceremony which would have resulted in a valid marriage between them
except for a "legal impediment" as described in s404.346(a).
(3) You are the insured's natural child and your mother or father has not married
the insured, but the insured has either acknowledged in writing that you are his or
her child, been decreed by a court to be your father or mother, or been ordered by
a court to contribute to your support because you are his or her child. If the insured
is deceased, the acknowledgment, court decree, or court order must have been made
or issued before his or her death. To determine whether the conditions of entitlement
are met throughout the first month as stated in s404.352(a), the written acknowledgment,
court decree, or court order will be considered to have occurred on the first day
of the month in which it actually occurred.
(4) Your mother or father has not married the insured but you have evidence other
than the evidence described in paragraph (a)(3) of this section to show that the insured
is your natural father or mother. Additionally, you must have evidence to show that
the insured was either living with you or contributing to your support at the time
you applied for benefits. If the insured is not alive at the time of your application,
you must have evidence to show that the insured was either living with you or contributing
to your support when he or she died. See s404.366 for an explanation of the terms "living with" and "contributions for support."
(b) Use of State Laws(1) General. To decide whether you have inheritance rights as
the natural child of the insured, we use the law on inheritance rights that the State
courts would use to decide whether you could inherit a child's share of the insured's
personal property if the insured were to die without leaving a will. If the insured
is living, we look to the laws of the State where the insured has his or her permanent
home when you apply for benefits. If the insured is deceased, we look to the laws
of the State where the insured had his or her permanent home when he or she died.
If the insured's permanent home is not or was not in one of the 50 States, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, American Samoa, or the Northern Mariana
Islands, we will look to the laws of the District of Columbia. For a definition of
permanent home, see s404.303. For a further discussion of the State laws we use to determine whether
you qualify as the insured's natural child, see paragraphs (b)(3) and (b)(4) of this section. If these laws would permit you to inherit
the insured's personal property as his or her child, we will consider you the child
of the insured.
(2) Standards. We will not apply any State inheritance law requirement that an action
to establish paternity must be taken within a specified period of time measured from
the worker's death or the child's birth, or that an action to establish paternity
must have been started or completed before the worker's death. If applicable State
inheritance law requires a court determination of paternity, we will not require that
you obtain such a determination but will decide your paternity by using the standard
of proof that the State court would use as the basis for a determination of paternity.
(3) Insured is living. If the insured is living, we apply the law of the State where
the insured has his or her permanent home when you file your application for benefits.
We apply the version of State law in effect when we make our final decision on your
* ~ application for benefits. If you do not qualify as a child of the insured under
that version of State law, we look at all versions of State law that were in effect
from the first month for which you could be entitled to benefits up until the time
of our final decision and apply the version of State law that is most beneficial to
(4) Insured is deceased. If the insured is deceased, we apply the law of the State
where the insured had his or her permanent home when he or she died. We apply the
version of State law in effect when we make our final decision on your application
If you do not qualify as a child of the insured under that version of State law, we
will apply the version of State law that was in effect at the time the insured died,
or any version of State law in effect from the first month for which you could be
entitled to benefits up until our final decision on your application. We will apply
whichever version is most beneficial to you. We use the following rules to determine
the law in effect as of the date of death:
(I) If a State inheritance law enacted after the insured's death indicates that the
law would be retroactive to the time of death, we will apply that law; or
(ii) If the inheritance law in effect at the time of the insured's death was later
declared unconstitutional, we will apply the State law which superseded the unconstitutional
4. Section 404.356 is amended by adding a sentence at the end to read as follows:
s404.356 Who is the insured's legally adopted child?
* * * We apply the adoption laws of the State or foreign country where the adoption
took place, not the State inheritance laws described in s404.355, to determine whether
you are the insured's legally adopted child.
[FR Doc. 98-28707 Filed 10-27-98; 8:45 am]
BILLING CODE 4190-29-P
63 FR 57590-01, 1998 WL 745835 (F.R.) END OF DOCUMENT