On June 13, 2011, you requested an opinion as to whether a parent-child relationship
existed between the deceased number holder (“NH”) and Matthew K. F~ where DNA test
results indicate that the parents of the NH were the grandparents of Matthew F~. You
also asked whether Matthew would be entitled to benefits on the NH’s record.
Although DNA testing indicated that the parents of the NH were the grandparents of
Matthew, we believe that a court would not find that a parent-child relationship existed
between the NH and Matthew under the West Virginia intestacy laws. As discussed more
fully below, the evidence shows that Matthew’s mother and the NH were not cohabitating
at the time of Matthew’s conception, Matthew’s mother listed Kevin F~ as Matthew’s
father on his birth certificate, and that Kevin F~ signed an acknowledgment of his
paternity of Matthew. Further, the courts are reluctant under West Virginia law to
overturn an acknowledgement of paternity absent a showing of fraud, duress, or material
mistake of fact. Because a court would not find that a parent-child relationship existed
between Matthew and the NH, Matthew would not be entitled to benefits on the NH’s
NH’s Marriage to Christina M~ and the Birth of Matthew
According to the information you provided, the NH and Christina M~ (hereinafter “Matthew’s
mother”) were married on October XX, 19xx, and Matthew F~ was born on
March XX, 20xx. Although the NH and Matthew’s mother were married at the time of Matthew’s
birth, the final divorce order provides that the NH and Matthew’s mother last cohabitated
together on or about March 20xx, a year before Matthew’s birth. Kevin F~ is listed
as Matthew’s father on his birth certificate, which was filed with the West Virginia
Division of Health on April 10, 20xx. The information supplied for Matthew’s numident
also lists Kevin F~ as Matthew’s father. Kevin F~ and Matthew’s mother signed and
had notarized a Declaration of Paternity Affidavit (hereinafter “paternity acknowledgement”)
on April 1, 20xx, which lists Kevin F~ as Matthew’s father.
The NH and Matthew’s mother divorced on June XX, 20xx. The final divorce decree stated
that no children were born of the marriage, but that Matthew’s mother gave birth to
“Matthew K. F~ age one year, of whom the biological father is Kevin D. F~, as evidenced
by the attached paternity affidavit.” Divorce Decree at ¶ 7. Matthew’s mother married
Kevin F~ on November XX, 20xx, and her name is now Christina F~.
NH’s Death and Matthew’s Application for Benefits
The NH died on April XX, 20xx, while living in West Virginia. After the NH died, Matthew’s
mother filed an application for surviving child benefits on behalf of Matthew under
the NH’s record on October 27, 2010. Matthew’s mother stated that Kevin F~ is Matthew’s
A Relationship Report (hereinafter “Report”) from LabCorp. According to its website,
LabCorp is accredited by the American Association of Blood Banks (AABB) as well as
several other organizations showed a 99.99% probability that the NH’s parents, Ada
P~ and Delmas P~, were the grandparents of Matthew. Based on the results, LabCorp
concluded that the NH’s parents could not be excluded as biological grandparents of
Matthew. The Report noted that “[t]his study supports the assertion that a son of
the grandparents could be the biological father of the child.” It was signed by the
director of the laboratory under penalty of perjury. There is no other evidence in
the file, such as affidavits or statements regarding whether the NH had any siblings
and whether or not any siblings were tested and excluded as Matthew’s father.
However, our internet search discovered a summary of the NH’s obituary, which noted
that he is survived by a brother (Dale P~) and two sisters. (last visited July 8,
The summary also noted that the NH is survived by two sons, James and Devin, and
made no mention of Matthew.
I. Relevant Provisions of the Social Security Act and the West Virginia Intestacy
The Social Security Act and implementing regulations provide that surviving child’s
benefits may be granted based on the earnings record of a fully insured individual
if the child, as defined in section 216(e) of the Act, has 1) filed an application
for child’s insurance benefits; 2) is unmarried at the time of application; 3) is
under the age of eighteen; and 4) was “dependent” upon the insured. Section 202(d)(1)
of the Act, 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2011).
Section 216(e)(1) of the Act defines “child” as 1) the child or legally adopted child
of an insured, or 2) a stepchild if, in the case of a deceased insured, he has been
a stepchild for not less than nine months immediately preceding the day on which the
insured died. 42 U.S.C. § 416(e)(1). The Act further provides in section 216(h)(2)(A),
that in determining whether an applicant is the “child” of an insured individual,
the Secretary “shall” apply the intestacy law of the state where the NH was domiciled
at the time of his death in order to determine if the child can inherit personal property
from an intestate NH. 42 U.S.C. § 416(h)(2)(A). Indeed, the Fourth Circuit Court of
Appeals has recently recognized that the intestacy provision in section 216(h)(2)(A)
of the Act is the “backbone” of all “child” status determinations under the Act. Schafer v. Astrue, 641 F.3d 49, 57 (4th Cir. 2011).
The relevant West Virginia intestacy statute provides that children born out of wedlock
shall be capable of inheriting from their mother and father, if, prior to the death
of the father, paternity shall be established by 1) acknowledgement that he is the
child’s father; 2) adjudication on the merits pursuant to a paternity proceeding under
W.Va. Code § 48-24-101; or 3) by order of a court of competent jurisdiction issued
in another state. W.Va. Code § 42-1-5(b) (2011). If paternity has not been established
prior to the death of the putative father, then the statute requires “clear and convincing”
evidence of paternity after his death. W.Va. Code § 42-1-5(c) (2011).
Although the West Virginia intestacy provision is entitled “From whom children born
out of wedlock inherit,” this is the relevant provision in this case because at the
time of the NH’s death, as noted in Section II of this Memorandum, Kevin F~ was considered
Matthew’s father for “all purposes,” and therefore, any presumption of legitimacy
that arose during the marriage of the NH and Matthew’s mother was rebutted. Specifically,
although there was an original presumption of legitimacy because Matthew was born
during the marriage of the NH and Matthew’s mother, this presumption is rebuttable,
and was rebutted by the divorce decree and the paternity acknowledgment executed by
Kevin F~. See W.Va. Code § 16-5-10(f) (2011) (providing that the name of the most recent husband
shall be entered on the birth certificate unless paternity has been determined by
a court of competent jurisdiction); see also W.Va. Code § 16-5-10(h) (2011) (providing that a paternity acknowledgement legally
establishes the man as the father for all purposes).
Clear and convincing evidence has been defined as “that measure or degree of proof
which will produce in the mind of the trier of facts a firm belief or conviction as
to the allegations sought to be established.” Moore v. Goode, 180 W.Va. 78, 83-84, 75 S.E.2d 549 (W.Va. 1988) (citing Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369
(W.Va. 1987)). If an individual cannot meet the intestacy requirements of § 216 (h)(2)(A),
the Act also provides three alternative avenues to establish “child” status for survivorship
benefits. First, an applicant can be deemed a “child” under the Act if his parents
went through a marriage ceremony that turned out to be legally invalid. See 42 U.S.C. § 416(h)(2)(B). This situation is not applicable here because the NH and
Matthew’s mother were legally married, and the divorce decree noted that the NH was
not Matthew’s biological father.
Second, an applicant can be deemed a “child” under the Act where prior to the NH’s
1) the NH acknowledged paternity in writing; 2) the NH was decreed a parent by a court;
3) the NH was ordered by a court to contribute to the support of the applicant. See 42 U.S.C.
§ 416(h)(3)(C)(i)(I)-(III). In this case, there is no evidence that the NH ever acknowledged
paternity in writing. Further, there is actually a court adjudication (divorce decree)
that finds that the NH is not Matthew’s father, and the NH has never been ordered
by a court to contribute to the support of Matthew. Therefore, Matthew does not satisfy
this second alternative avenue.
Third, an applicant can be deemed a “child” under the Act if the NH was living with
or contributing to the support of the child at the time the NH died. See 42 U.S.C.
§ 416(h)(3)(C)(ii). In the instant matter, there is no evidence that the NH was living
with or contributing to the support of Matthew. Therefore, with the facts provided,
Matthew does not meet this third alternative for “child” status.
II. The NH Did Not Establish Paternity Prior to His Death Under the West Virginia
The facts of this case demonstrate that the NH did not acknowledge that he was Matthew’s
father prior to his death as required by the West Virginia intestacy statute, W.Va.
Code § 42-1-5(b). In fact, Kevin F~ is listed as Matthew’s father on Matthew’s birth
certificate filed a month after his birth and in his numident record. Further, Mr.
F~ executed an acknowledgement of paternity, and later married Matthew’s mother. According
to West Virginia law, in order for a court to set aside a paternity acknowledgement
after the expiration of sixty days, it must find by “clear and convincing evidence”
that the paternity acknowledgement was executed under circumstances of fraud, duress,
or material mistake of fact. See W.Va. Code § 16-5-10(h)(5)(E). You provided no evidence that Kevin F~ attempted to
set aside his acknowledgement of paternity at any time.
In addition, the internet summary of the NH’s obituary noted above stated that he
is survived by two sons, James and Devin, but did not mention Matthew. Moreover, there
is no adjudication of the paternity of the NH by a court of West Virginia or any other
state as required under the statute, W.Va. Code § 42-1-5(b). To the contrary, there
is an adjudication that the NH is not Matthew’s father, as noted in the divorce decree.
In sum, there is a West Virginia court order (divorce decree) which establishes the
paternity of Kevin F~ pursuant to W.Va. Code § 16-5-10(f), as well as a paternity
acknowledgement pursuant to W.Va. Code § 16-5-10(h). Under West Virginia’s statutory
scheme, these facts are sufficient to establish Kevin F~ as Matthew’s father for “all
purposes.” W.Va. Code
§ 16-5-10(h). Therefore, the NH did not establish paternity of Matthew prior to his
death according to the provisions of W.Va. Code § 42-1-5(b).
Although Matthew’s paternity in relation to the NH was not established during the
NH’s life, we now look to the provision of the intestacy statute that paternity after
his death must be established by clear and convincing evidence. See W.Va. Code § 42-1-5(c).
III. The DNA Testing of the Grandparents After the NH’s Death is Not Clear and Convincing
Evidence that Matthew Could Take Under the Intestacy Statute.
We believe that a West Virginia court would not find that clear and convincing evidence
of paternity exists such that Matthew would inherit from the NH under the intestacy
As an initial matter, the West Virginia courts and legislature have not addressed
grandparent DNA in the context of paternity cases. Although the scientific reliability
of blood and tissue evidence itself has been well established in West Virginia, the
Supreme Court of Appeals of West Virginia has noted that genetic tests should not
be a “trump card” when reviewing conflicting bases for paternity, and has found that
courts must engage in a factual weighing process. State of West Virginia Dept. of Health and Human Resources, Child Support Enforcement
Division v. Michael George K., 207 W.Va. 290, 296, 531 S.E.2d 669
The court cautioned that blood test results do not necessarily rebut a legal presumption
of paternity that arises from an acknowledgement of paternity. Michael G. K., 207 W.Va. at 296. The court stated, in interpreting the child support provision
that permitted reliance on an acknowledgement of paternity pursuant to W.Va. Code
§ 16-5-10, that even if proof of fraud, duress, or material mistake of fact exists,
the statute does not say that upon such proof the acknowledgment must be voided. Id. at 297-298. Rather, the ultimate decision should involve the consideration and weighing
of all applicable preferences, presumptions, and equitable principles. Id. at 297-98. In Michael K.T. v. Tina L.T., the court found that a blood test that factually excluded the biological paternity
of a man who was legally presumed the child’s father was not necessarily admissible
to rebut the legal presumption where the person held himself out as the father for
such a time that disproof of paternity would result in undeniable harm to the child.
See Michael K.T. v. Tina L.T., 182 W.Va. 399, 400, 387 S.E.2d 866 (1989).
In this case, we believe a court would consider the following factors in determining
that there was not clear and convincing evidence of the NH’s paternity after his death:
1) the NH and Matthew’s mother last cohabitated together in March 20xx, Matthew was
not born until a year later, and they were divorced in June 20xx; 2) the paternity
acknowledgement that was executed by Kevin F~; 3) the divorce decree that finds that
Kevin F~ is Matthew’s biological father; If Matthew’s mother were bringing suit on
her own behalf, she would be barred by res judicata from asserting that the NH was the father of Matthew because of the divorce decree.
See In re Marriage/Children of Betty L.W. v. William E.W., 212 W.Va. 1, 7, 569 S.E.2d 77 (2002) (noting that the adjudication of paternity
which is expressed in a divorce order is res judicata as to the husband and wife in any subsequent proceeding, however res judicata would not preclude a support action filed by the child) (citing State ex rel. Dep’t of Health and Human Resources v. Pentasuglia, 193 W.Va. 621, 457 S.E.2d 644 (1995)).
4) Kevin F~ has held himself out for nine years as Matthew’s father; 5) the NH has
a brother who has not been excluded as Matthew’s father; and 6) there is nothing on
record that the NH ever acknowledged Matthew as his son prior to his death.
Based on the reluctance of the Supreme Court of Appeals of West Virginia to admit
blood tests to disprove paternity, we believe that the court would not do so in this
case. This is especially true here where the Report from LabCorp noted only that the
son of the grandparents “could” be Matthew’s biological father. In addition, the NH
has a brother who has not been excluded, and therefore, the grandparent DNA tests
are not conclusive of paternity. Consequently, we believe that a court would not find
that the grandparent DNA tests establish paternity after the NH’s death by clear and
convincing evidence as required by the West Virginia intestacy statute.
Accordingly, we conclude that no parent-child relationship existed between the NH
and Matthew under West Virginia law, and therefore, Matthew is not entitled to benefits
on the NH’s record.
Eric P. K~
Regional Chief Counsel
By: Kimberly A. V~
Assistant Regional Counsel