In considering this child's claim for survivor's benefits, you asked two questions
regarding the evidentiary value of genetic testing performed by DNA Diagnostics Center
on samples from relatives of a deceased number holder (NH) in Tennessee and the retroactive
or prospective payment of child's benefits. Specifically, you asked: (1) whether DNA
tests of the claimant, the claimant's mother and NH's parents can be used to establish
a parent-child relationship to NH under Tennessee law; and (2) whether, if the claimant
qualifies as an illegitimate child of NH with inheritance rights, the claimant can
be paid retroactively.
Having considered the evidence presented, and the applicable federal and state law,
it is our opinion that: (1) the DNA tests based on samples from NH's relatives, the
claimant and his mother, may satisfy the clear and convincing evidentiary standard
for proving paternity for inheritance purposes under Tennessee law; and (2) while
the claimant would not be legitimate, Tennessee law would accord him inheritance rights
equivalent to those of a legitimate child and therefore, the child should be paid
NH died domiciled in Tennessee on October 4, 1992. The claimant was born on June 24,
1993, to Katherine I. D~, approximately eight and one-half months after NH's death.
The claimant's mother is also referred to in the file as Katherine I. S~. There is
no evidence that NH and the claimant's mother were ever married. There is no evidence
that NH was living with or providing support to the claimant's mother at the time
of NH's death. On September 16, 2005, the claimant's mother applied for surviving
child's benefits on behalf of her son on the earnings record of the deceased NH and
to become the claimant's representative payee. According to NH's death certificate,
NH was born in North Carolina and was a resident of Tennessee at the time of his death.
The claimant's birth certificate lists only the claimant's mother but contains no
information on the claimant's father. An application for a Social Security number
completed on July 2, 1993, also lists only the claimant's mother's information. In
an effort to determine if the claimant was related to NH's family, DNA samples were
taken from the claimant, his mother, and NH's mother and father. The results of the
DNA test conducted by the DNA Diagnostics Center were reported on October 22, 2003.
According to the DNA test report, the probability that the claimant is related to
NH's mother and father is 99.99%.
For purposes of child's survivor's benefits under the Social Security Act (Act), a
child is defined as the child, adopted child or stepchild of an insured individual.
See § 216(e) of the Act, 42 U.S.C. § 402(e)(2005). If NH dies prior to the child applicant's
birth and NH never married the child's mother, the claimant's status as the surviving
child of NH is governed by either section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C)
or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status
under section 216(h)(3)(C) of the Act, the claimant must show one of the following:
(1) that NH acknowledged in writing that the claimant is his child, (2) that a court
decreed NH to be the claimant's father, (3) that a court ordered NH to contribute
to the claimant's support, or (4) that NH is the father and was living with or contributing
to the claimant's support when NH died. We are aware of no evidence here which satisfies
any of the required conditions in section 216(h)(3)(C) of the Act. Therefore, the
sole basis for entitlement for surviving child benefits would be under 216(h)(2)(A)
of the Act.
To establish his status as the surviving child of the deceased NH under section 216(h)(2)(A)
of the Act, the claimant must show that he would be entitled to a child's share of
NH's intestate personal property under the law of the state in which NH was domiciled
at the time of his death. NH was domiciled in Tennessee when he died. There is no
evidence suggesting that NH's domicile was other than Tennessee. We conclude NH was
domiciled in Tennessee when he died and that Tennessee's law of intestate succession
is therefore applicable in determining the claimant's status as the lineal descendant
of NH for purposes of section 216(h)(2)(A) of the Act.
For a person born out of wedlock to establish the status of lineal descendant for
purposes of intestate succession under Tennessee law, he or she must show: 1) the
natural parents participated in a marriage ceremony before or after the child's birth,
even though the attempted marriage is void; or 2) paternity is established by an adjudication
before the father's death or is established thereafter by clear and convincing proof.
See TENN. CODE ANN. § 31-2-105(2) (Thomson/West 2006). The claimant does not qualify under
the first criterion because the evidence does not support a finding that his mother
and NH participated in a marriage ceremony. Therefore, paternity must be established
by an adjudication before the father's death or after the father's death by clear
and convincing evidence. Although there has been no actual paternity adjudication
under TENN. CODE. ANN. § 31-2-105(2)(B), SSA adjudicators must apply Tennessee intestacy
law under these circumstances as follows:
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
20 C.F.R. § 404.355(b)(2)(2005); See Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation
to obtain an actual state court determination of paternity). Consequently, SSA does
not require an adjudication of paternity but applies the requisite standard of proof
used by Tennessee courts to determine paternity.
To be adjudicated a lineal descendant under Tennessee intestacy law, a child born
out of wedlock who did not establish paternity prior to the putative father's death,
must prove paternity by clear and convincing evidence. See TENN. CODE ANN § 31-2-105(2)(B)(T~/W~ 2006); Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989); see also
Muse v. Sluder, 600 S.W.2d 237 (Tenn. Ct. App. 1980), cited in Kelani v.
Bowen, 684 F.Supp. 490, 496 (M.D.Tenn. 1988)(in a Social Security case for surviving child
benefits, the court applied the clear and convincing standard of proof to determine
whether an illegitimate child could inherit from his putative father). Clear and convincing
is defined in McDowell v. Boyd, 1997 WL 749470, at *2 (Tenn. Ct. App. 1997) as falling somewhere between the preponderance-of-the-evidence
standard in civil proceedings and the beyond-a-reasonable-doubt standard required
in criminal proceedings. Id. (citing Walton v. Young, 950 S.W.2d 956, 960 (Tenn. 1997)). The Tennessee Supreme Court has further explained
that clear and convincing evidence "must produce in the mind of the trier of facts
a firm belief or conviction as to the allegations sought to be established." Fruge v.
Doe, 952 S.W.2d 408, 412 n. 2 (Tenn. 1997). According to the court in Majors, the clear and convincing proof's requirements are not satisfied by circumstances
that merely "suggest" or "imply parentage, or even support probability;" instead "[t]he
circumstances must be such as to produce a state of conviction (by convincing) that
the desired fact is indeed true." 776 S.W.2d at 540.
Here, the claimant's birth certificate lists only the claimant's mother's name but
not his father's name. An application for a Social Security number completed on July
2, 1993, also lists only the claimant's mother's information. The evidence presented
to establish paternity thus, consists solely of DNA testing of the claimant, the claimant's
mother, and NH's parents which shows a 99.99% of grandparentage. The question then
becomes whether the DNA test results of NH's parents showing a 99.99% of grandparentage
demonstrate clear and convincing evidence of paternity.
Tennessee's paternity statutes distinguish between establishing paternity for child
support purposes and for purposes of intestate succession. Under Tennessee's domestic
relations law, DNA testing that meets the following criteria creates a rebuttable
presumption of paternity: (1) an exclusion has not occurred, (2) it was performed
in accordance with Tenn. Code Ann. § 24-7-112 (Thomson/West 2006), and (3) shows a
statistical probability of parentage greater than 95%.
See TENN. CODE ANN. § 36-2-304(a)(5) (Thomson/West 2006). Any presumption of paternity
created under Section 36-2-304 can be rebutted by a preponderance of evidence. See
Tenn. Code Ann. § 36-2-304(b)(3) (Thomson/West 2006).
Tennessee evidentiary laws specifically permit scientific testing of "the parties
and the child" and "all necessary parties" to determine paternity for purposes of
child support. TENN. CODE ANN. § 24-7-112(a)(1)(A), (2) (Thomson/West 2006). For instance,
Section 24-7-112 provides that when the results of blood, genetic, or DNA tests show
a statistical probability of 99% or greater, the paternity of the putative father
may only be rebutted by evidence of: (1) medical incapacity, (2) no access during
the probable period of conception, (3) the putative father has/had an identical twin
who had sexual relations with the child's mother during the probable period of conception,
or (4) evidence in the form of an affidavit is presented that another man engaged
in sexual relations with the mother of the child during the period of probable conception
and the results of that genetic test indicate that the other man has a statistical
probability of paternity of 95% or greater. Here, although NH has a brother, there
is no indication that NH's brother is an identical twin. None of the other effective
defenses to the presumption of paternity have been presented. However, the DNA
tests here show a probability of grandparentage rather than paternity.
With respect to the admissibility of genetic test results in civil or criminal proceedings
involving the question of parentage, Tennessee's evidentiary laws further provide
that the DNA testing must be conducted by an "accredited laboratory." TENN. CODE ANN.
§ 24-7-112(a)(3) (Thomson/West 2006). The materials presented indicate that DNA Diagnostic
Center's testing procedure was conducted in accordance with the AABB's guidelines.
Though there is no indication in the file that DNA Diagnostic Center is accredited
by the AABB, the United States Department of Health and Human Services lists DNA Diagnostics
Center on its official website as a genetic-testing laboratory that is accredited
by the American Association of Blood Banks, see United States Department of Health and Human Services, (visited January 13, 2006)
<http://www.acf.dhhs.gov/programs/cse/pubs/directories/genetic-testing/sec3.html>. Therefore, we believe that DNA Diagnostics Center meets the test for an "accredited
laboratory" under Tennessee law. See POMS GN 00306.065. Furthermore, while we find no specific statutory or case law reference to establishing
paternity based on testing the putative father's parents, in light of the statutory
recognition granted to genetic testing in general, we believe the Tennessee courts
would accept this report from DNA Diagnostic Center in the context of domestic
relations actions, as an accredited laboratory which conducted the DNA test and determined the probability
of grandparentage as 99.99%.
Unlike Tennessee's domestic relations paternity statute, Tennessee's intestacy statute
applicable to persons born out-of-wedlock is silent on the use of scientific tests
for purposes of establishing paternity. See TENN. CODE ANN § 31-2-105 (Thomson/West 2006). We found no Tennessee case law or statute
specifically addressing the probative value of genetic testing of the putative father's
relatives for purposes of establishing paternity for either support or intestacy purposes.
However, we note that the clerk and master concluded in one case that there was clear
and convincing evidence that an illegitimate child was the decedent's child after
DNA testing revealed a 99.34% probability that the decedent's sister was the illegitimate
child's aunt. See In re Estate of Bennett, 2005 WL 2333597, at *1 (Tenn. Ct. App. Sept. 23, 2005). Similarly, DNA testing of
the decedent was used to established paternity for inheritance purposes under § 31-2-105 in Brady v. Smith, 56 S.W.3d 523, 525 (Tenn. Ct. App. 2001). Additionally, the McDowell court, after noting clear and convincing evidence as the requisite standard, observed
that blood tests are direct evidence of paternity, and that "[n]either party in this
case offered evidence of the results of blood testing, even though this evidence would
have been the most reliable and conclusive available." 1997 WL 749470, at *2 (emphasis
added). Though the probative value of the DNA test results was not at issue and not
a part of the Tennessee Court of Appeals' holdings in those cases, the cases support
a conclusion that DNA testing, in general, and of relatives in particular, can at
a minimum be considered for intestacy purposes, and may by themselves provide clear
and convincing evidence of paternity.
Because Tennessee courts look to the law of other states for guidance in matters of
first impression, we too have looked to the court decisions of other states that have
addressed the genetic testing of a putative father's relatives in intestacy proceedings.
See e.g., Pass v.
Pass, 1999 WL 95184, at *2 (Tenn. Ct. App. Feb. 24, 1999)(looking to other states to determine
in a child support action whether the wife was entitled to child support payments
which accrued prior to the parties' remarriage, and excluding the period of cohabitation);
v. Henson, 1998 WL 886561, at *3 (Tenn. Ct. App. Dec. 18, 1998)(reviewing other state law to
determine whether paternity actions brought against a putative father who did not
consent to childbirth violate the father's right to procreational autonomy). Our review
of the court decisions in other states shows that the genetic tests of the putative
father's relatives is, at a minimum, admissible evidence in inheritance proceedings
on the issue of paternity. See e.g., In the
Matter of the Application of Ruth Santos, 768 N.Y.S.2d 272 (N.Y. 2003) (court stated DNA testing of a child's putative grandparents,
could be used to satisfy the clear and convincing evidence standard for proving paternity);
In the Matter of the Estate of Robert
Nasert, 748 N.Y.S.2d 654 (N.Y. 2002) (DNA testing on the putative father's twin, coupled
with other evidence constituted clear and convincing evidence of paternity); Drake, 2001 WL 705784 (district court concludes DNA testing of the putative father's mother
coupled with other evidence supported finding of clear and convincing evidence of
paternity); In the
Matter of the Estate of Sandler, 612 N.Y.S.2d 756 (N.Y. 1994) (court found DNA testing of a child's putative grandparents
could provide clear and convincing evidence of paternity); M.A. v. The Estate of A.C., 643 A.2d 1047 (N.J. Super. 1993) (court ordered the decedent's siblings and mother
to submit to DNA testing for paternity purposes in an intestacy proceeding because
denying the tests could deprive the child of evidence necessary to establish his right
to equal treatment under the law); Tipps v. Metropolitan Life Insurance
Company, 768 F. Supp. 577, 580 (S.D. Tex. 1991) (DNA testing of deceased putative father's
parents, legitimate son, and putative daughter); In re Estate of Rogers, 583 A.2d 782, 784 (N.J.Super 1990) (court has "inherent power" to order collateral
relatives of decedent to submit to blood tests to determine paternity of non-marital
child)(cited in In re Estate of
Murcury, 868 A.2d 680, 685 n.4 (Vt. 2004)).
While it is unclear whether a Tennessee court might actually hold that DNA testing
of the putative father's relatives which shows a 99.99% of grandparentage is clear
and convincing evidence of paternity, it is our opinion that Tennessee courts, based
on the decisions of other states, would, at a minimum, consider genetic testing of
the putative father's relatives along with other evidence on the issue of paternity.
Other evidence of paternity may include: "(1) the declarations and conduct of the
child's biological father, (2) acknowledgment by the father, (3) family resemblance,
and (4) evidence concerning access, opportunity, and capacity to have children." McDowell, 1997 WL 749470, at *2 (internal citations omitted). Unfortunately, the claimant
here has not submitted any of this additional evidence which might either: (1) lend
further evidentiary support to the DNA test results in order to meet the clear and
convincing standard of proof; or actually by themselves meet the clear and convincing
evidence, see e.g.,
Majors, 776 S.W.2d at 540-41 (finding clear and convincing evidence of paternity mainly
based on testimonial evidence); Kelani, 684 F.Supp. at 496-97 (same); Rose
v. Stalcup, 731 S.W.2d 541, 543 (Tenn. Ct. App. 1987)(same). If unsure as to whether the DNA
test results here would amount to clear and convincing evidence, SSA could further
develop the record to obtain this additional evidence. However, based on the evidence
as presented, Tennessee's statutes and case law which seemingly permit consideration
of genetic testing to establish paternity for intestacy purposes and in light of other
state law which gives some weight to DNA testing of a putative father's relatives,
it is our opinion that an SSA adjudicator could find NH here to be the claimant's
father based on genetic test results on his parents under Tennessee law, and that
the claimant is entitled to child's insurance benefits pursuant to § 216(h)(2)(A)
of the Act.
Next, you asked, if a parent-child relationship is met as an illegitimate child with
inheritance rights, whether the child can be paid retroactively. With respect to retroactive
entitlement, under 20 C.F.R. § 404.621(a)(2) (2005), an applicant for child's benefits
can receive benefits for up to six months immediately before the month in which he
files his application. An illegitimate child might not be entitled to retroactive
benefits because an applicant is not entitled to benefits before he proves he meets
all entitlement factors, and an illegitimate child has not proved child status until
he meets the evidence requirements for proving that status under state law. So, "[a]n
act/event conferring inheritance rights generally has effect only from the date of
such act/event." POMS GN 00306.055A.3. The only exception to this policy is for cases where, as here, the state law granting
inheritance rights also accords those rights for periods before the act/event that
confers those rights. In Tennessee, when the relationship of father and child is established,
the child shall be entitled to inherit from the father as if born to the father in
wedlock. See TENN. CODE ANN. § 36-2-313(a)(Thomson/West 2006). Thus, while the claimant would
not be legitimate, Tennessee law would accord him inheritance rights equivalent to
those of a legitimate child. Therefore, if Claimant is determined by clear and convincing
evidence to be NH's child, his rights to retroactive benefits would be equivalent
to those of a legitimate child, see POMS GN 00306.635, and he would be eligible for the full retroactive period of the application.
Very truly yours,
Mary Ann S~
Regional Chief Counsel
Assistant Regional Counsel