Wisconsin law requires paternity be established by clear and satisfactory preponderance of the evidence. Under Gray v. Richardson SSA is not bound by the Wisconsin circuit court order of paternity because it fails to meet the requirement that the finding of paternity be genuinely contested by a party with an opposing interest. Additionally, there was insufficient evidence of paternity to meet Wisconsin’s evidentiary standard.

This case was referred to this Office to address the correctness of the dismissal of Jamal D~'s June 1999 claim as a surviving child, and whether reopening would be appropriate. We were also asked whether the Wisconsin circuit court order of paternity is binding under the criteria set forth in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). We believe that the October 2004 Wisconsin circuit court order of paternity is not binding under Gray v. Richardson, because it fails to meet the requirement that the finding of paternity be "genuinely contested" by a party with an opposing interest (in this case, the number holder's estate). Furthermore, we believe that this order was not based on meaningful evidence of paternity, such that it would meet the clear and satisfactory preponderance standard, as required in Wisconsin. Moreover, it does not appear that there is sufficient evidence in the record to establish paternity. Therefore, we believe that the issue of reopening is moot, since no evidence existed at any point to establish paternity by any meaningful standard.

FACTS

According to the file, Jamal D~ was born on August 9, 1988. Phillip D~, the putative father, died on June 18, 1990. On May 30, 1991, Marion M~, Jamal's mother, applied for child's insurance benefits ("CIB") based on Phillip D~'s earnings. That claim was denied on July 29, 1991, because the evidence submitted did not establish a parent-child relationship. Marion M~ appealed that denial to the Appeals Council, and in federal district court. On February 1, 1999, Ms. M~'s complaint on behalf of Jamal D~ was dismissed with prejudice by the district court. Ms. M~ filed another claim for CIB in June 1999. That claim was initially dismissed because it was thought that the district court action was still pending. A reconsideration request filed in January 2000 was denied because no new evidence was submitted. On October 26, 2004, Ms. M~ obtained a Wisconsin circuit court order finding that Phillip D~ was Jamal D~'s father. On March 1, 2005, Ms. M~ filed a third claim for CIB, which is currently pending.

DISCUSSION

Generally, a claimant's status as a "child" of a number holder for the purposes of CIB entitlement can be established, if that child has inheritance rights under the intestacy law of the applicable State. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1); POMS GN 00306.055. In this case, we apply Wisconsin law, because Phillip D~ died domiciled in Wisconsin. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001 (c)(2)(a) (to determine a parent/child relationship, we apply the intestacy law of the State where the number-holder was domiciled at time of death).

The Wisconsin intestacy statute provides that "[a] nonmarital child or the child's issue is entitled to take in the same manner as a marital child by intestate succession . . . from and through his or her father" if any of the following applies:

(a) The father has been adjudicated to be the father in a paternity proceeding . . . or by final order or judgment of a court of competent jurisdiction in another state

(b) The father has admitted in open court that he is the father

(c) The father has acknowledged himself to be the father in writing signed by him.

Wis. Stat. Ann. § 852.05(1).

In this case, Jamal's mother obtained an Order of Paternity in a Wisconsin circuit court in October 2004, finding that Phillip was Jamal's father. The question therefore becomes whether SSA is bound by the Wisconsin court finding, in determining Jamal's relationship to Phillip.

A. Gray v. Richardson does not bind the Agency in regards to the Wisconsin circuit court Order of paternity.

Gray v. Richardson, 474 F.2d 1370, adopted as Social Security Ruling ("SSR") 83-37c, provides that the Agency is not "free to ignore an adjudication of a State trial court where the following prerequisites are found:

(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." SSR 83-37c.

The court in Gray emphasized the importance of the need for a contested proceeding, and highlighted this factor as a controlling one in determining whether the Agency was bound by a State court decision. See Gray, 474 F.2d 1370, 1373. In this case, the Wisconsin action was clearly uncontested. According to the file, the personal representative of the estate of Phillip D~ was duly served with notice of the hearing, but did not appear for the hearing in family court. The fact that the trial court's decision was ex parte seems dispositive. See id.

In addition, the Agency is not bound by this decision because the trial court's order is inconsistent with Wisconsin law. The trial court expressly stated in its order that the paternity decision was based solely on the testimony of the child's mother and the allegations in her petition. See Oct. 26, 2004 Order, at Par. 2. As discussed below, this finding is not consistent with the evidentiary standard typically applied by Wisconsin courts in paternity cases.

While the Gray doctrine does not require the Agency to find that Jamal is Phillip's child, the Agency must still make a determination as to whether Phillip is the father. The issue then becomes whether there is enough evidence in the record for the Agency to make a finding of paternity, based on Wisconsin paternity law.

B. There is insufficient evidence in the record to find that Phillip D~ is the father of Jamal.

For SSA purposes, Jamal can still be entitled to CIB if he can establish Phillip's paternity, using the standard of proof that a Wisconsin court would apply. See 20 C.F.R.404.355(b)(2) ("[I]f 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").

Wisconsin law requires that the party attempting to establish paternity prove the issue by "clear and satisfactory preponderance of the evidence." WIS. STAT. ANN. § 767.47(8) (West 2001). Wisconsin courts have not clearly defined the "clear and satisfactory preponderance" standard, but have described it as something more than a preponderance of the evidence, but which does not require the fact-finder to be convinced beyond a reasonable doubt. See State ex rel. Brajdic v. Seber, 193 N.W.2d 43, 44-45 (Wis. 1972) (discussing clear and satisfactory preponderance); see also POMS GN 00306.675(D).

How this standard is applied in the paternity context is even less clear. Under Wisconsin law, the following factors may be considered:

(a) Evidence of sexual intercourse between the mother and alleged father at any possible time of conception or evidence of a relationship between the mother and alleged father at any time.

(b) An expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy.

(c) Genetic test results. . . .

(d) The statistical probability of the alleged father's paternity based upon the genetic tests.

(e) Medical, scientific or genetic evidence relating to the alleged father's paternity of the child based on tests performed by experts.

(f) All other evidence relevant to the issue of paternity of the child . . . [with some exceptions, none of which are relevant here].

WIS. STAT. ANN. § 767.47(1). While the 1972 Brajdic decision shows that a mother's testimony that she had intercourse with the putative father during the possible time of conception is considered extensively (category (a) above), we believe that Wisconsin's current statutory scheme relies heavily on scientific evidence as well. As one Wisconsin court stated, these factors reflect a determination by the Wisconsin legislature that scientific evidence, and expert testimony based upon such evidence, should play a significant role in paternity findings. See In re Paternity of Lily R.A.P., 565 N.W.2d 179, 186 (Wis. App. 1997). Furthermore, it is a common practice in Wisconsin to order genetic testing of a putative father in these proceedings. See WIS. STAT. ANN. § 767.48(1)(a); see also WIS. STAT. ANN. § 767.48(1m) (a rebuttable presumption of paternity is created where genetic testing shows 99% or greater probability that tested individual is the father).

The lack of scientific testing undertaken in this case seems to weigh against a finding of paternity by a clear and satisfactory preponderance of the evidence. Pursuing genetic testing may be more difficult in posthumous cases, but is not impossible. In a prior opinion, we discussed a posthumous paternity case where genetic testing of the putative father's siblings indicated a 99.999% probability of paternity. See Memorandum from Acting Reg. Chief Counsel, Chicago, to Asst. Reg. Comm.-MOS, Chicago, Entitlement to Child's Benefits Based on DNA Testing of Siblings of Deceased Number Holder in Wisconsin (Oct. 25, 2000). And, as we indicated in that opinion, we believe that Wisconsin courts would consider such evidence admissible and probative.

While we do not believe that Wisconsin courts require genetic testing to find paternity, we note that in this case, there appears to be no evidence of any kind supporting a finding of paternity. We do not have the actual petition, but the circuit court's order indicates that its finding was based solely on the allegations of Ms. M~. No other evidence of paternity is contained in the record, other than an affidavit by Adam B~, Phillip D~'s attorney and "close friend," stating that he believed Phillip to be Jamal's father (and there is no evidence that this affidavit was before the Wisconsin circuit court). In this context, we believe there is insufficient evidence to meet Wisconsin's evidentiary standard, an opinion which was held even by Ms. M~'s attorney, who admitted on the record during a hearing that "…if we cannot get the Social Security Administration to apply Illinois law, we can't meet the Wisconsin burden." See Transcript of Oct. 21, 1992 Hearing before ALJ Delbert Remington, 6.

Based upon the foregoing facts, we believe it unlikely that a Wisconsin court could properly find that Phillip was Jamal's father by "clear and satisfactory preponderance of the evidence." Accordingly, Jamal is not entitled to CIB because he is not eligible to inherit as one of Phillip's children under Wisconsin's intestacy law.

C. Reopening of the June 1999 claim is unnecessary.

As a final matter, you asked whether it was necessary to reopen Jamal's June 1999 claim for benefits, as it was incorrectly dismissed at the initial determination level. We believe this inquiry is unnecessary, based on the discussion above. Whether the Agency considers Jamal's June 1999 claim, or his March 2005 claim, there is no basis for an award of CIB. Therefore, the issue of reopening is moot.

Moreover, while the initial June 1999 claim may have been improperly dismissed, Jamal's claim was reconsidered in January 2000. At that time, the Agency fully considered the evidence presented, which as the Agency noted, was not new or materially different from the evidence presented in the initial claim. See Reconsideration Determination Letter, from Asst. Reg. Comm.-PCO (Mar. 27, 2000). Therefore, no harm resulted from any initial error.

CONCLUSION

While a Wisconsin circuit court made a finding of paternity in this case, we do not believe the order is binding under Gray v. Richardson, and the record does not seem to contain sufficient evidence to otherwise establish paternity. The current pending claim for CIB should therefore be denied. Given this denial, it is unnecessary to consider reopening of Jamal's June 1999 claim, since the same evidence was considered in the January 2000 reconsideration denial. Jamal's file is returned for further processing. Please feel free to contact this office for any further questions or concerns.

Kim L. B~

Regional Chief Counsel

Office of the General Council, Region V

Billy T~

Assistant Regional Counsel

Encl: Claims Folder, ~

The NH was adjudicated to be the father of the child claimant after the NH's death, based on genetic tests resulting in a 99.65% statistical probability of paternity. Therefore, the child has inheritance rights with respect to the NH under Wisconsin intestacy law.

This is in response to your request for an opinion as to whether a posthumous paternity judgment by a Wisconsin court gives the claimant inheritance rights under Wisconsin law so that the child is a "child" for purposes of Social Security benefits section 216(h)(2)(A) of the Social Security Act. For the reasons stated below, we believe the claimant does qualify as a "child" for purposes of Social Security benefits.

BACKGROUND

The claimant, Christine C. W~ (Christine), was born on August 27, 1981, in South St. Paul, Minnesota. Her alleged father, Dale A. Z~ (Dale), the wage earner and number holder, died on September 1, 1984, in Eau Claire County, Wisconsin. On April 24, 1997, claimant's mother, Laurie L. V~ (mother), applied for child's insurance benefits on behalf of Christine based on the Dale's earnings record.

While this claim was pending, on August 11, 1997, a paternity proceeding was brought against Dale under Wisconsin's paternity act, W.S.A.chapter 767, in the Circuit Court of Shawano County, Wisconsin. The court ordered genetic testing which resulted in a 99.65% probability that Dale was Christine's father. On July 30, 1997, the court adjudicated Dale to be Christine's father and issued a judgment of paternity (joined with a suspended order for child support) finding Dale Z~ to be the father of Christine.

DISCUSSION

Christine is entitled to child's insurance benefits on Dale's account if, under Wisconsin intestate succession laws, she is eligible to inherit as one of Dale's children. 42 U.S.C. § 416(h)(2)(A); 63 Fed. Reg. 57590,57593-57594 (to be codified at 20 C.F.R. §§ 404.354, 404.355(a)(1)). At the time that you requested our opinion, the agency looked to the state law in effect at the time of wage earner's death. Since that time, the regulations concerning the application of state law in determining child relationship have been revised and have now been published. See 63 Fed. Reg. 57590 (October 28, 1998). Therefore, the revised regulations should be applied to this claim and lead to an award of benefits.

Under the revised regulation, if the insured is deceased, the agency may apply the law in effect at the time of the adjudication of the claim, or any version of state law in effect from the first month a claimant could be entitled until the final decision, rather than the time of the wage earner's death. Fed. Reg. 57590, 57594 (October 28, 1998) (to be codified at 20 C.F.R. § 404.355(b)(4)). The agency will apply the version most beneficial to the claimant.

Because this claim has not been finally adjudicated, we can look to current Wisconsin law. Under current Wisconsin law, a nonmarital child is entitled to take in the same manner as a marital child by intestate succession from his or father if the father has either been adjudicated to be the father in a paternity proceeding under W.S.A. chapter 767, or has admitted in open court that he is the father or has acknowledged himself to be the father in writing signed by him. W.S.A. § 852.05 (status of nonmarital child for purposes of intestate succession).

Dale was adjudicated to be Christine's father in a paternity proceeding brought under chapter 767 after his death. In 1994, the Wisconsin legislature amended Section 895.01 to expressly include paternity actions among those causes of action that survive death. W.S.A. § 895.01. In Wisconsin, Christine's paternity action survived the death of her father and she was not barred from bringing the posthumous paternity action proceeding under chapter 767. See also W.S.A. § 767.01 (granting Wisconsin circuit courts the jurisdiction to hear posthumous paternity actions).

In reaching its judgment that Dale was Christine's father, the Wisconsin court ordered and relied on genetic testing on the parties, pursuant to W.S.A. § 767.48. Under Wisconsin's paternity law, whether admitted at the hearing or pre-trial hearing, as was done here, the blood tests results can be admitted as evidence without expert testimony. W.S.A. §§ 767.47 ()(c), 767.48. The Wisconsin court found that the tests were properly administered and that they resulted in a 99.65% probability that Dale was Christine's father. Wisconsin law creates a statutory presumption that the alleged father is the child's parent if the genetic tests result in a statistical probability 99% or higher. W.S.A. § 767.48. Here, the genetic testing resulted in a higher statistical probability -- 99.65%. As no evidence was presented to rebut this presumption, the court properly found that paternity was established by "clear and satisfactory preponderance of the evidence" which is the proper standard of proof in Wisconsin paternity proceedings. W.S.A. § 767.48(8). See In re Paternity of M.J.B. 425 N.W.2d 404, 410 n.6 (Wis. 1988); In re Paternity of M.A.V., 439 N.W.2d 829 (Wis. App. 1989).

Because Dale was adjudicated the father of Christine in this paternity proceeding brought under W.S.A. chapter 767, Christine has shown that she is entitled to take in the same manner as a marital child by intestate succession from her father under current Wisconsin law. W.S.A. § 852.05 (allowing nonmarital children to inherit intestate if they have established paternity pursuant to W.S.A. chapter 767); W.S.A. § 767.465 (allowing paternity to be adjudicated on the basis of default after service); see also LeFevre, 482 N.W.2d at 905; Krenz-Buchanan v. Shalala, 884 F. Supp. at 327-28 . Accordingly, Christine has established that she is the child of the wage earner under 42 U.S.C. § 416(h)(2)(A), because she has shown that under Wisconsin law she has the same status relative to taking by intestate succession personal property of the wage earner as any of his surviving children.

We believe the revised regulations resolve your other concerns as they involved questions about Wisconsin posthumous paternity actions brought when the wage earner died before the Wisconsin legislature amended the survival of action statute to include posthumous paternity proceedings. For instance, you asked about time limitations within which to bring a paternity proceeding. Under the revised regulations, the agency 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. 63 Fed. Reg. 57590, 57593 (October 28, 1998) (to be codified at 20 C.F.R. § 404.355(b)(2)). In any event, Christine's paternity action was not barred under existing Wisconsin law as paternity proceedings must be brought within nineteen years from the date of the child's birth. W.S.A. § 893.88. This action was brought within sixteen years of Christine's birth.

CONCLUSION

For these reasons, Christine is the child of the deceased wage earner, as that term is defined by the Social Security Act. Therefore, she qualifies as his "child" for Social Security benefits. Christine's application for child's insurance benefits is not barred because her status as the child of the wage earner was determined posthumously, after his death.

Thomas W. C~

Chief Counsel, Region V

Ayrie M~

Assistant Regional Counsel

This opinion indicates whether termination of parental rights affects a child's right to inherit from its natural parents under State law, in the absence of subsequent adoption by other individuals .

NOTE: Questions pertaining to specific fact scenarios must be submitted to the RCC for a legal opinion.

You asked us to research the laws of the states in Region V to determine how the termination of parental rights affects a child's right to inherit from its natural parents in the absence of subsequent adoption by other individuals and, consequently, the child's potential entitlement to Social Security benefits. We discuss each state's law below.

DISCUSSION

The Social Security Act (Act) provides for the payment of child's insurance benefits (CIB) to certain children of individuals who are entitled to old-age or disability insurance benefits or who died fully or currently insured. See 42 U.S.C. § 402(d) (2003); 20 C.F.R. §§ 404.350-404.368 (2003). In order to qualify for CIB, an applicant must be the wage earner's "child" as that term is defined by the Act. See 42 U.S.C. §§ 416(e), 416(h)(2-3). The Act provides that a child is the child of a currently insured individual if he or she would be entitled to inherit from the insured individual. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(C)(1)(a), (2)(a), POMS GN 00306.075. The Agency applies the state law in effect at the time it makes its final decision on the application for benefits. However, if the child claimant would not qualify as the insured wage earner's child under that version of the state law, the Agency looks at all versions of the state law in effect from the first month for which the child claimant could be entitled to benefits until the time of the Agency's final decision, and the Agency applies the version of state law that is most beneficial to the child claimant. See20 C.F.R. 404.355(B)(3)-(4); POMS GN 0030.075(B)(2).

A child's entitlement to CIB depends on whether that individual can inherit money, property or other assets as the wage earner's child according to state intestacy laws. The following paragraphs discuss the laws regarding inheritance rights of children whose natural parents have had their parental rights terminated in each of the six states that comprise Region V:

Illinois

In Illinois, it appears that a child retains the right to inherit from its natural parents after parental rights are terminated. The Illinois Adoption Act provides that once parental rights are terminated, or a court enters a judgment of adoption, the natural parents are "relieved of all parental responsibility for such child and shall be deprived of all legal rights as respects the child, and the child shall be free from all obligations or maintenance and obedience as respects such natural parents." 750 ILCS 50/17 (2003). This section, however, does not specify inheritance rights as one of the rights affected by termination. In Illinois, courts will not insert conditions or limitations into a statute that are absent from the text. See Davis v. Toshiba Machine Co., America, 710 N.E.2d 399, 401 (Ill. 1999). Additionally, the Illinois Probate Act specifically provides that, for purposes of inheritance, an adopted child is not a child or a descendant of a natural parent. See 755 ILCS 5/2-4(d). The Probate Act does not impose a similar exclusion upon children whose parents have had their parental rights terminated. The Illinois rules of statutory construction provide "that where there exists a general statutory provision and a specific statutory provision, either in the same or in another act, both relating to the same subject, the specific provision controls and should be applied." See Knolls Condo. Ass'n v. Harms, 781 N.E.2d 261, 267 (Ill. 2002). Here, the more specific terms of the Probate Act appear to control the more general terms regarding the effect of termination as explained in the Adoption Act. Because the Probate Act limits only the adopted child's ability to inherit, we presume that a child can likely inherit from natural parents after their parental rights have been terminated, unless and until the child is adopted by another.

Indiana

In Indiana, it appears that a child retains the right to inherit from its natural parents after parental rights are terminated, absent subsequent adoption._11 Section 31-35-6-4 of the Indiana Code states that when parental rights are terminated, "all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support, pertaining to the relationship, are permanently terminated." BURNS IND. CODE ANN. § 31-35-6-4 (2003). Section 31-35-6-4 does not specify inheritance rights as one of the rights affected by termination. The predecessor to section 31-35-6-4, however, stated that termination of parental rights "shall divest the parent and the child of all legal rights, privileges, duties and obligations, including rights of inheritance, with respect to each other." BURNS IND. CODE ANN. § 31-3-1-7(g) (1976) (repealed and replaced by § 31-6-5-6, effective October 1, 1979)._22 The rules of statutory construction provide that when the legislature changes the text of a statutory provision, it is presumed that a change of meaning was also intended. See City of Fort Wayne v. Slattery, 791 N.E.2d 807, 811 (Ind. App. 2003). Because the legislature deleted from the statutory text language stating that termination of parental rights results in termination of the child's inheritance rights, it is presumed that the legislature intended to repeal that provision.

Michigan

In Michigan, the termination of parental rights (absent subsequent adoption) does not terminate a child's right to inherit from its natural parents. See MICH. COMP. LAWS ANN. § 700.2114(1), (3) (2003). Subsection (1) states that, except as provided in subsections (2) (pertaining to adoption) (3) (discussed below) and (4) (inapplicable for the objectives of this memorandum), "for purposes of intestate succession by, through or from an individual, an individual is the child of his or her natural parents...." Subsection (3) provides that "the permanent termination of parental rights" only terminates the right of the natural parents to inherit from or through the child for purposes of intestate succession. Thus, the child's right to inherit from the natural parents remains intact unless that child is actually adopted by other individuals. See MICH. COMP. LAWS ANN. § 700.2114(2) ("An adopted child is the child of his or her adoptive parent or parents and not of his or her natural parents"). The predecessor to this law, however, provided that the termination of parental rights ended kinship for inheritance purposes for both the parent and the child. See MICH. COMP. LAWS ANN. § 700.110(1) (West 2000). We previously advised that, effective April 1, 2000, the permanent termination of parental rights of a minor by order of a court, by a release given by the parent for purposes of adoption, or by any other legal process, ends intestate succession by the parent through the child only (i.e., the child can still inherit from the parents). However, prior to that date, termination of parental rights cuts off the right of both the parent and the child to inherit from the other. See Amendments to the Michigan Revised Probate Code, Memorandum from Regional Chief Counsel, Region V, to Assistant Regional Commissioner, Management and Operations Support (Dec. 11, 2002), at 2.

Minnesota

In Minnesota, a child's right to inherit from its natural parents is severed at the time parental rights are terminated. See In re Estate of Braa, 452 N.W.2d 686, 688 (Minn. 1990) (finding that MINN. STAT. § 260.241(1) (now § 260C.317) does not preserve a child's right to inherit from a natural parent after parental rights are terminated); In the Matter of the Welfare of J.D.N., 504 N.W.2d 54, 58 (Minn. App. 1993) (recognizing that when parental rights are terminated, the child loses its right to intestate succession because the natural parent is relieved of the corresponding obligations arising from that right).

Ohio

In Ohio, the termination of parental rights does not terminate a child's right to inherit from its natural parents. The right to inherit from a natural parent is terminated only upon the adoption of the child by other parents. See OHIO REV. CODE. ANN. § 3107.15(A)(1) (2003); Mauer v. Becker, 271 N.E.2d 255 (Ohio 1971) (interpreting chapter 3107 to mean that only adoption severs inheritance rights between the child and its legal parents); see also In re Freeland, No. 19960, 2000 WL 1201287 (Ohio App. 9 Dist. Aug. 9, 2000) (unpublished decision); Pledgure v. Goutras, No. 2000-CA-0035, 2000 WL 492578 (Ohio App. 5 Dist. Apr. 3, 2000) (unpublished decision).

Wisconsin

In Wisconsin, it appears that the termination of parental rights does terminate a child's right to inherit from its natural parents. Wisconsin statute provides that termination of parental rights "means that...all rights, powers, privileges, immunities and obligations existing between parent and child are permanently severed." WIS. STAT. § 48.40(2) (2003). The Wisconsin supreme court held that a prior version of this statute, which provided for termination of "all rights of parents," severed the right of the natural parents to inherit from the child. See In re Estate of Pamanet, 175 N.W.2d 234, 235-36 (Wis. 1970). The court reasoned that the term "all rights" was clear and unambiguous and that "[i]f the legislature had intended to say, all rights except for the right to inherit..., it would have said so." Id. at 235. The legislature subsequently amended section 48.40 and included language that evinced an intent to make the effect of termination reciprocal between natural parent and child. See WIS. STAT. § 48.40(2) (stating that termination of parental rights means that "all rights...existing between parent and child" are severed) (emphasis added). In Estate of Pamanet, the court noted that if this language were adopted, it would cut off a child's right to inherit from the parent as well. Id. at 236 (indicating that the legislature had previously contemplated, but had rejected a statutory version which provided that both parental rights and a child's right to inherit would end upon the termination of parental rights). "A revised statute is to be understood in the same sense as the original unless the change in language [clearly] indicates a different meaning." See WIS. STAT. § 990.001(7); Seider v. O'Connell, 612 N.W.2d 659, 667 n.4 (Wis. 2000). Thus, given the amendatory language and the Wisconsin Supreme Court's indication that this language would cut off inheritance rights of children when parental rights are severed, we presume that a child cannot inherit from its natural parents after parental rights have been terminated on or after April 10, 1996 (the effective date of the statutory amendment).

CONCLUSION

We recommend that POMS be amended, as indicated above, to reflect applicable state laws. We also recommend that questions pertaining to specific fact scenarios be submitted for a legal opinion.

_11Indiana statute provides that for purposes of intestate succession, "an adopted child shall be treated as a natural child of the child's adopting parents, and the child shall cease to be treated as the child of the natural parents…." BURNS IND. CODE ANN. § 29-1-2-8 (2003).

_22Section 31-6-5-6 was subsequently repealed and replaced by 31-35-6-4, effective July 1, 1997. The statutory language, however, was not materially altered.

In Wisconsin, admissible evidence in a paternity action includes genetic evidence relating to the alleged father's paternity; the statute is not limited to genetic evidence taken from the putative father only. The DNA test results of the siblings of a deceased putative father are admissible. Further, a Wisconsin court would likely find that the evidence the child's mother submitted, including the genetic test results and other statements, is sufficient to establish paternity by a clear and satisfactory preponderance of the evidence if the court found that the statements ruling out other family members as potential fathers are credible.

You asked whether DNA testing of the siblings of deceased number-holder Calvin O~ can be used as evidence of paternity, and whether the evidence would be sufficient to establish that the claimant, Calene O~, could inherit Calvin's property under Wisconsin's intestate succession laws. At issue is Calene O~'s entitlement to child (survivor) benefits on the account of deceased number-holder Calvin O~. For the reasons stated below, we conclude that the Agency could find the DNA test results to be sufficient evidence of paternity.

Background

Number-holder Calvin O~ died on December 3, 1992, domiciled in Wisconsin. Less than three months later, Mary I~ gave birth to Calene O~ on February 22, 1993. Calene's birth certificate has a space for the “mother's name” and a “husband's name.” Ms. I~ is identified as Calene's mother; no “husband's name” is provided, and Calvin's name does not appear on the birth certificate.

On September 17, 2001, Ms. I~, Calene, and Calvin O~'s brother (Richard) and sister (Charlene) submitted to genetic testing. The tests, performed by Reliagene Technologies, Inc., showed that Calvin was not excluded as the biological father of Calene, and established a 99.999 percent probability of paternity compared to an untested, unrelated random man of the Indian population.

On November 28, 2001, Ms. I~ applied for Child's Insurance Benefits (CIB) on behalf of Calene. Ms. I~ stated that she and Calvin lived together for two years prior to his accidental death on December 3, 1992, but they never married. Ms. I~ stated she had “no doubt” that Calene is Calvin's child.

Richard O~ stated that he never had a relationship with Ms. I~, and that he was “sure” that Calene is Calvin's daughter. Richard also stated that another brother, Clifford O~, had been in prison since 1980.

Annette P~ stated that she was friends with Calvin (who was her cousin) and Ms. I~; that the two lived together for several years and until Calvin's death; that she had “no doubt” that Calene was Calvin's daughter; and that she was sure Richard O~ never had a relationship with Ms. I~.

Discussion

If Calene could inherit Calvin's property under Wisconsin's intestate succession laws, she is his “child” for the purpose of CIB entitlement. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(c)(1)(a). We use Wisconsin's laws because Calvin died domiciled in Wisconsin. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001C.2.a. (to determine a parent/child relationship, we apply the intestate succession law of the state where the number-holder was domiciled at time of death).

Because Ms. I~ and Calvin were never married, Calene is a nonmarital child. Wisconsin's intestate succession law provides that a nonmarital child can take from (and through) her father if: (1) the father has been adjudicated to be the father in a paternity proceeding; or (2) the father has admitted in open court that he is the father; or (3) the father has acknowledged himself to be the father in writing signed by him. See Wis. Stat. Ann. § 852.02(1) (West Supp. 2001); see also POMS GN 00306.080 (Digest of State Laws on Legitimation and Inheritance Rights) and POMS GN 00306.675 (Wisconsin Intestacy Laws).

Here, Calvin did not acknowledge in writing or admit in open court that Calene is his daughter. Thus, Calene can establish her right to inherit from Calvin under Wisconsin's intestate succession law only if Calvin is adjudicated to be her father in a paternity proceeding. Even though Wisconsin law requires an actual adjudication of paternity before a nonmarital child can take intestate property, Calene does not need to obtain an actual court determination for SSA purposes if she can establish paternity using the standard of proof that a Wisconsin court would apply. See 20 C.F.R. § 404.355(b) (“[i]f 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”).

Wisconsin law requires that the party attempting to establish paternity prove the issue by “clear and satisfactory preponderance of the evidence.” Wis. Stat. Ann. § 767.47(8) (West 2001). Wisconsin courts have not clearly defined the “clear and satisfactory preponderance” standard, but have described it as a hybrid burden of proof that requires something more than a preponderance of the evidence, but does not require the fact-finder to be convinced beyond a reasonable doubt. See State ex rel. Brajdic v. Seber, 193 N.W.2d 43, 44-45 (Wis. 1972) (discussing clear and satisfactory preponderance); see also POMS GN 00306.080 (Wisconsin) and POMS GN 00306.675D.

Here, Calene, Ms. I~, and Calvin's siblings submitted to genetic tests, which did not exclude Calvin as Calene's father, and indicated a 99.999 percent statistical probability of Calvin's parentage. You asked whether these tests results could be used as evidence of paternity under Wisconsin law. In Wisconsin, admissible evidence in a paternity action may include “medical, scientific or genetic evidence relating to the alleged father's paternity of the child based on tests performed by experts,” along with “all other evidence relevant to the issue of paternity,” subject to certain exceptions that are not at issue here. Wi Stat. Ann. § 767.47(1)(e)-(f) (West 2001). We conclude that the genetic test results of Calvin's siblings would be admissible in a paternity action under these two sections; the results are both “genetic evidence relating to [Calvin's] paternity” (and the statute does not limit this section to genetic evidence taken from the putative father only) and “relevant to the issue” of paternity.

A less clear question is what weight Wisconsin courts would give to the genetic test results of a putative father's siblings, and we have identified no Wisconsin decisions addressing the issue. Nonetheless, we think a Wisconsin court would likely find the evidence probative. One Wisconsin court recently commented that the legislature intended to “give considerable weight to the scientific advances in the area of genetic testing.” In re Lily R.A.P. v. Michael J.W., 565 N.W.2d 179, 186 (Wis. App. 1997). And, noting scientific advances, other state courts have determined that genetic testing of a putative father's relatives can be reliable evidence of paternity. E.g., Estate of Wilkins, 184 Misc.2d 218, 222 (Niagra County Surrogate Court 2000) (posthumous DNA testing of decedent's collateral living relatives can be probative evidence of paternity); Pace v. Louisiana State Employees Retirement System, 648 So.2d 1302, (La. 1995) (“courts have found that DNA tests performed on the deceased putative father's relatives can determine paternity posthumously,” collecting cases); Lach v. Welch, 1994 WL 271518 at *5 (Conn. Super. June 13, 1994) (“DNA fingerprinting may also be utilized to effectively establish a 'probability' of paternity by testing relatives of the unavailable parent,” citing scientific studies).

In this case, the tests showed a 99.999 percent probability of Calvin's paternity, which seems quite high. This probability was calculated in comparison to an untested, unrelated random Indian man, apparently leaving the possibility that a related man is as statistically likely as Calvin to be Calene's father. However, Calvin's brother, Richard O~, stated that he never had a relationship with Ms. I~, and another individual, Annette P~, corroborated this statement. In addition, Richard stated that another brother, Clifford, had been in prison since 1980. We see no reason to doubt the credibility of these statements, which would sufficiently rule out Calvin's male relatives as Calene's father (assuming Calvin had no other close male relatives).

In addition to the DNA tests, the record includes other relevant evidence of paternity. Ms. I~ stated that she and Calvin lived together for two years prior to Calvin's death, which would mean they lived together during the conceptive period. Ms. P~ corroborated Ms. I~'s statement that she and Calvin lived together. Ms. I~ also stated that she had “no doubt” that Calene is Calvin's child; Ms. P~ and Richard O~ also considered Calene to be Calvin's child. Further, Ms. I~ gave Calene the name O~--Calvin's family name. And although Calvin's name does not appear on Calene's birth certificate, we do not think this fact detracts from Ms. I~'s statements. Notably, the birth certificate requests a “mother's name” and a “husband's name” rather than a “father's name.” Because Ms. I~ and Calvin were not married (and in fact, Calvin was already deceased) at the time of Calene's birth, it does not seem remarkable (or probative) that she did not identify a “husband” on Calene's birth certificate.

In sum, we think a Wisconsin court would find the DNA test results, coupled with the other record evidence, sufficient to establish a clear and satisfactory preponderance of evidence that Calvin O~ is the father of Calene O~.

Conclusion

In Wisconsin, admissible evidence in a paternity action includes “genetic evidence relating to the alleged father's paternity”; the statute is not limited to genetic evidence taken from the putative father only, and therefore we conclude that the DNA test results of the siblings of a deceased putative father are admissible. Further, a Wisconsin court would likely find that the evidence Ms. I~ submitted, including the genetic test results and other statements, is sufficient to establish paternity by a clear and satisfactory preponderance of the evidence if the court found that the statements ruling out other family members as potential fathers are credible. Therefore, Calene O~ should be considered Calvin O~'s child for the purpose of CIB under the Social Security Act if the Agency adjudicator finds credible the statements that Richard O~ did not have a relationship with Ms. I~. The Agency may also want to verify that Calvin had no other close male relatives who could potentially be Calene's father.

We note that the packet of materials you sent to us included some original statements from the claim folder. We are returning those documents to you.

Sincerely yours,

Lucille G. M~

Acting Regional Chief Counsel

By:________________________

Mona A~

Assistant Regional Counsel

Wisconsin courts would allow the use of DNA testing of grandparents to decide paternity. However, DNA testing of paternal relatives only demonstrates the child's biological link to the putative paternal family, but does not rule out the possibility that a male relative of the deceased fathered the child. Therefore, SSA needs to obtain additional evidence to show that the alleged father, the NH, is the only male in his family who could have fathered the child. Such evidence includes information about whether the mother had sexual relations with the NH and anyone else at the possible time of conception.

You asked for an opinion on whether the State of Wisconsin would allow the testing of grandparents' DNA to determine paternity where the putative father is deceased. You also asked whether, if Wisconsin law would recognize these genetic tests as proof of paternity, that finding would confer inheritance rights only or the finding would legitimate the child. You want to know whether this child would be entitled to benefits and, if so, as of what date. For the reasons that follow, we believe that Wisconsin courts would allow consideration of valid grandparent DNA tests as "other evidence" concerning paternity and that the child could receive benefits retroactive to six months prior to the date of her application.

FACTS

Kenneth L~, Jr., died June 4, 1988, while domiciled in Wisconsin.

He is alleged to be the father of Kimberly A. R~, a child born on September 24, 1987, in Wisconsin. According to the file, Laurie R~, Kimberly A. R~'s mother, applied for child's benefits on behalf of Kimberly on February 17, 2000. In support of her claim, Ms. R~ submitted statements from herself and several members of Mr. L~'s family that they believe Mr. L~ is Kimberly A. R~' father. Also included are the results of DNA testing conducted on Kimberly A. R~; Ms. R~, and Mr. L~'s mother and father, Sally and Kenneth L~. These test results did not rule out the possibility that Sally and Kenneth L~ are Kimberly's grandparents, and the testing laboratory, DNA Diagnostics Center of Fairfield, Ohio, computed the likelihood that Sally and Kenneth L~ are the paternal grandparents as 99.98%. Mr. and Mrs. L~ reported that Kenneth was the only surviving son at the time of Kimberly's conception.

Kimberly's birth certificate includes no father's name. Her numident record shows Thomas J. R~, Jr., as her father. A Report of Contact in the file indicates that Thomas R~ is Laurie R~'s husband and Kimberly's step-father. It suggests that he applied for disability insurance benefits and named Kimberly as a child—possibly as a step-daughter. Thomas R~, Jr., and Laurie R~ did not marry, however, until after Kimberly was born. Laurie R~ explained that she gave Kimberly Thomas R~, Jr.'s last name (rather than her maiden name) because she was planning to marry Mr. R~.

DISCUSSION

Under the Social Security Act, a child can obtain benefits on the account of a wage earner if the child can take a child's share of the wage earner's intestate personal property. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1) (1999); POMS GN 00306.001(A). If the wage earner is deceased, SSA applies the intestacy laws for the state where the deceased wage earner had a permanent home at the time of death. 20 C.F.R. § 404.355(b)(1). Mr. L~, Jr. was domiciled in Wisconsin; therefore, Wisconsin intestacy laws apply to determine whether Kimberly R~ is his biological child.

Under Wisconsin law, Kimberly could inherit if the putative father was adjudicated to be the father in a paternity proceeding. See Wis. Stat. Ann. § 852.05(1)(a). Under Social Security law, we do not require that the child obtain an adjudication of paternity prior to the death of the wage earner. See 20 C.F.R. § 404.355(b)(2). Furthermore, the child need not obtain a state court adjudication of paternity where there is other evidence. The SSA adjudicator determines paternity using the state standard. Here the SSA adjudicator should apply the Wisconsin standard. In Wisconsin, paternity may be established after the putative father's death by one of several presumptions (if unrefuted) or by clear and satisfactory preponderance of the evidence. POMS GN 00306.080 (Wisconsin); Wis. Stat. Ann. § 767.47(b)(8). Court cases in Wisconsin have further considered factors other than the presumptions when evaluating paternity claims. See State ex rel. Brajdic v. Seber, 53 Wis.2d 446, 193 N.W.2d 43 (Wis. 1972) (Testimony of mentally deficient complainant that her child was a full term baby and that she had had intercourse with defendant two or three times a week during conceptive period and with no one else during that period constituted clear and satisfactory preponderance of the evidence that defendant was the father of the child, even though complainant testified on cross-examination that the acts of intercourse took place while she was employed at certain company and the evidence showed that she was not employed at such company at the time of conception).

Further, Wisconsin law does not permit the bringing of a paternity action once that putative father is dead. See Wisc. Stat. Ann. §§ 767, 895.01; Hullum v. Sullivan, 762 F.Supp. 1324, 1329-30 (N.D. Ill. 1991), citing In re Paternity of N.L.B., 411 N.W. 2d 144, 145 (Wisc. Ct. App. 1987), appeal dismissed 416 N.W.2d 67 (Wisc. 1987). In Hullum, 762 F.Supp. at 1327-28, the district court found that the Secretary (Commissioner) could not make a factual determination of paternity not authorized for the state court itself. However, a recent amendment of the Social Security regulations provides:

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.

20 C.F.R. § 404.355(b)(2).

1. It is proper to consider the DNA test results of paternal relatives.

As you described in your letter, the POMS properly describes Wisconsin law as creating a statutory presumption of paternity if valid DNA tests of the alleged father establish a 99% (or greater) likelihood of paternity and the alleged father is not excluded by the test. POMS GN 00306.080 (Wisconsin); see Wis. Stat. Ann. §767.48; In re the Paternity of J.L.K. v. J.J., 445 N.W.2d 673, 675 (Wisc. 1989) (Results of "DNA probe," also known as "DNA fingerprinting," are admissible in paternity proceeding under statute providing for admission of blood test results and statistical probabilities of alleged father's paternity.). However, as we previously advised (see Validity of Grandparent DNA Testing to Establish Paternity in Michigan, Lisa M. P~, OGC-V (Messer) to Donna M~, ARC-MOS (Jan. 13, 2000), at 2), the POMS does not address any presumption when DNA testing establishes the likelihood of a relative's (such as grandparent) relationship.

We believe that state law would allow the agency to consider the probability of paternity using the results of DNA testing of the child's grandparents as probative of the question of paternity. Here, the DNA test results demonstrate the likelihood of a grandparent relationship, and they establish an 99.98% likelihood of such relationship since the alleged grandparents had no other living sons at the time Kimberly was conceived, this is probative evidence that Kenneth L~, Jr., is the father. These tests do not, however, establish a statutory presumption of paternity since the alleged father himself was not tested. See Wis. Stat. Ann. § 767.48.

Wisconsin law, however, permits a finding of paternity notwithstanding the absence of a statutory presumption of paternity. The POMS make this clear. POMS GN 00306.080 (Wisconsin). Thus, we conclude that the agency may consider the DNA test results.

In addition to the DNA tests, we have evidence that Kenneth's parents acknowledged Kimberly as Kenneth's child and a statement from Kimberly's mother that Kenneth is the father of the child. On the other hand, no father is listed on Kimberly's birth certificate, and she was given the name of her mother's boyfriend at the time of Kimberly's birth—a man who shortly thereafter married Kimberly's mother and subsequently named Kimberly as his child or step-child when he applied for Social Security benefits.

Under the circumstances, it is not clear whether a state court would find clear and satisfactory evidence that Kenneth L~ is Kimberly's father. We recommend that the agency seek further evidence.

2. Further Investigation and Documentation

Based on the considerations addressed above, the DNA testing of Kimberly's putative paternal grandparents was conducted by properly accredited staff and constitutes evidence that the Wisconsin courts would consider in deciding paternity. However, because the DNA results merely show a 99.98% probability that Sally A. L~ and Kenneth W. L~ are Kimberly's grandparents, and not that Kenneth L~, Jr., is the only possible father from the paternal family, we would recommend further investigation into the matter. See Memorandum from OGC Region V to SSA-MOS, Does Posthumous Genetic Testing Based on the DNA of the Deceased Numberholder's Relatives Establish Paternity Under Michigan State Law?, Jeffrey W~, page 5, (May 25, 2000) (explaining that DNA testing of paternal relatives only demonstrates the child's biological link to the putative paternal family, but does not rule out the possibility that one of the deceased's male relatives fathered the child). We understand that the family has stated that Kenneth L~'s only brother died in 1986. Specifically, we would recommend that you obtain statements from Kimberly's mother, Ms. R~, as well as Mr. L~, Jr.'s family, which would establish that no other male in the family could be Kimberly's father. You may also want to ask Mr. L~, Jr.'s family whether Mr. L~ himself considered Kimberly to be his daughter. And you should consider whether Kimberly is receiving benefits on Mr. R~' account as a child or step-child and whether Mr. R~ considers Kimberly to be his natural child.

3. If Clear and Satisfactory Evidence Supports the Paternity Claim, Is the Child Legitimated Or Does She Only Obtain Inheritance Rights?

You have asked this question in order to determine when the child would be entitled to benefits, assuming that she is found entitled to benefits. In Wisconsin, property descends upon death and vests immediately in heirs, legatees, and devisees. See In re Trust Created under Will of Marceille Solbrig, Deceased v. Raimey, Trustee, et al., 96 N.W.2d 97, 99-100 (Wisc. 1957). Where inheritance rights are retroactive to the date of death, the property passes without a gap in the title. Here, the wage earner died more than six months prior to the application for benefits was filed. Thus, SSA survivor benefits could be given the normal six-month retroactivity. This is the case regardless of whether Kimberly would be a legitimated child or merely obtained inheritance rights.

CONCLUSION

For the foregoing reasons, we conclude that Wisconsin courts would allow consideration of the DNA test results of Kimberly, Ms. R~, Sally A. L~, and Kenneth W. L~ to determine whether Kenneth L~, Jr., was Kimberly's father. However, we recommend that the agency obtain further evidence that Mr. L~ was the only male in his family who could have fathered Kimberly. You should also develop evidence about whether Mr. L~ or Mr. R~ considered Kimberly to be his natural child and whether Kimberly is receiving benefits on Mr. R~' account as his child or step-child.

You may also want to ask both Mr. R~ and Kimberly's mother whether they had sexual relations at the time Kimberly was conceived. And you should ask Kimberly's mother whether she had intercourse with Mr. L~, Jr., or anyone else at the time Kimberly was conceived. If the agency finds that there is clear and satisfactory evidence that Mr. L~, Jr., is Kimberly's father, Kimberly would be entitled to full retroactive benefits.

A posthumous paternity judgment by a Wisconsin court gives the child claimant inheritance rights as a "child" under section 216(h)(2)(A) of the Social Security Act.

Pursuant to your request, we have considered whether a posthumous paternity judgment by a Wisconsin court gives the claimant inheritance rights under section 216(h)(2)(A) of the Social Security Act as a "child" for purposes of Social Security benefits. For the reasons stated below, we believe the claimant does qualify as a "child" for Social Security benefits./

On October 31, 1989, the wage earner and number holder, Carl J. G~, died. He was domiciled in the State of Wisconsin. On February 1, 1990, the claimant, Jacob J. G~, was born. On April 10, 1991, Barbara M. F~, the claimant's mother, applied for child's insurance benefits for Jacob G~ on Carl G~'s account. In a decision, dated April 20, 1993, an ALJ found that Jacob did not have a right to a hearing on his application for child's insurance benefits "since no initial determination and no reconsidered determination ha[d] been made on the issue of paternity," and he denied the request for a hearing. On December 6, 1993, Barbara F~ obtained a court order declaring that Carl G~ was the father of Jacob G~. On May 9, 1994, Ms. F~ filed another application for child's insurance benefits for Jacob G~.

Under the Social Security Act, a claimant may demonstrate that he is the "child" of an insured wage earner in various ways.

For example, the statute provides that an applicant can be deemed to be the child of a deceased insured if 1) the insured had acknowledged in writing or been decreed by a court to be the parent of the applicant; or 2) the insured is shown to have been the parent by evidence satisfactory to the Agency, and the insured was living with or contributing to the support of the applicant at the time of death. 42 U.S.C. §416(h)(3)(C). Jacob G~ does not qualify as the wage earner's child under these tests.

Carl G~ did not acknowledge Jacob in writing, was not decreed by a court to be Jacob's parent before he died, and did not live with Jacob's mother or contribute to Jacob's support. Accordingly, Jacob does not qualify as a "child" under 42 U.S.C. §416(h)(3)(C).

Nevertheless, there is another way for the claimant to prove his status as a "child" for purposes of Social Security benefits.

He may establish eligibility for benefits by showing that he would be entitled to inherit property under the intestate succession laws of the state in which the insured wage earner (the putative father) resided. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.354. When Jacob's most recent application for child's benefits was filed on May 9, 1994, his mother had obtained a court order declaring that Carl G~ was his father (dated December 6, 1993). It is our position that this court order established Jacob's entitlement to inherit property under the intestate succession laws of the State of Wisconsin.

It is true that, under previous Wisconsin law, a paternity proceeding could not be maintained posthumously against a putative father. See e.g., In re Estate of Blumreich, 84 Wis.2d 545, 267 N.W.2d 870 (1978). However, the Wisconsin legislature subsequently amended Wis.Stat. § 767.01 to grant the circuit courts jurisdiction to hear posthumous paternity actions, and created § 767.45, which lists the persons authorized to bring a paternity action (the child, the natural mother of the child, the man presumed or alleged to be the child's father or alleging himself to be the child's father, the personal representative of any of these persons, and the legal or physical custodian of the child). Nevertheless, when the state court of appeals later considered the issue of posthumous paternity actions in In re Paternity of N.L.B., 140 Wis.2d 400, 411 N.W.2d 144 (Ct. App. 1987), it held that the legislation did not permit paternity actions to be maintained against a deceased putative father, concluded that Blumreich remained good law, and found that causes of action for paternity did not survive the death of the alleged father. Consequently, the N.L.B. court found that a suit by the natural mother on behalf of the child against the parents and personal representative of the deceased putative father would not be allowed.

A case that the Wisconsin Supreme Court later decided, Le Fevre v. Schreiber, 167 Wis.2d 733, 482 N.W.2d 904 (1992), provided a different view. The Le Fevre court found that a lower court had erred in refusing to recognize a posthumous determination of paternity that had been brought by the mother and the deceased putative father's personal representative in order to pursue a wrongful death action. Although the Wisconsin Supreme Court attempted to distinguish Le Fevre from N.L.B. because the suit in Le Fevre was brought by the personal representative of the deceased, while the suit in N.L.B. was brought against the estate of the putative father, a subsequent decision held that Le Fevre must be read as overruling N.L.B., to the extent that N.L.B. had found no authority for any paternity action to be brought posthumously. Krenz-Buchanan o/b/o Jessica Krenz v. Shalala, 884 F. Supp. 324 (W.D. Wis. 1995). Krenz-Buchanan further held that the true distinction between N.L.B. and Le Fevre had been the absence of a contest between the potential intestate heirs of the estate and the putative child of the decedent. Krenz-Buchanan, 884 F.Supp. at 327. Meanwhile, during the year preceding Krenz-Buchanan, Section 895.01, Wisconsin's survival of action statute, was amended to include actions to determine paternity, thereby resolving the issue raised by N.L.B. The amendment to section 895.01 was effective June 11, 1994.

To summarize, then, the question presented by this case is whether, given the state of the law discussed above, Jacob G~ would be eligible to inherit property under Wisconsin's intestate succession laws, thereby entitling him to child's insurance benefits. In Schaefer o/b/o Schaefer v. Heckler, 792 F.2d 81 (7th Cir. 1986), the court held that this question could be answered by determining whether a posthumous declaration of paternity would have been recognizable under the laws of Wisconsin at the time the wage earner died. Carl G~ died on October 31, 1989. We conclude that a posthumous paternity judgment would have, arguably, been recognizable under Wisconsin state law as of October 31, 1989. As of that date, Le Fevre had been decided. Le Fevre found that a claimant, who was born out of wedlock after his father's death, and was later determined to be his father's child via a posthumous paternity action, had standing to bring a wrongful death action. In reaching this decision, the court recognized that Wisconsin's wrongful death statute gave recovery to the decedent's issue as determined under the intestacy statutes. Therefore, under Le Fevre, a claimant whose status as a decedent's child has been determined posthumously can inherit property under the intestate succession laws and can, therefore, qualify for child's insurance benefits. Furthermore, there is no evidence of a contest between Jacob G~ and potential intestate heirs of Carl G~'s estate. Therefore, whether or not we conclude that Le Fevre overruled N.L.B., as Krenz-Buchanan asserts, we can deem Le Fevre to be controlling, because the facts of this case are consistent with its facts.

For the foregoing reasons, based upon the December 6, 1993 order, Jacob G~ is the child and heir of Carl G~, is potentially entitled to take intestate property of Carl G~, and qualifies as his "child" for Social Security benefits. Accordingly, the claimant's application for child's insurance benefits, filed on May 9, 1994, is not barred because his status as a "child" was determined posthumously.

Under Wisconsin law, a nonmarital child is entitled to take in the same manner as a marital child by intestate succession from his/her father if the father has been adjudged to be the father in a paternity proceeding. In 1994, the Wisconsin legislature amended their statute to include posthumous paternity proceedings.

This is in response to your request for an opinion .as to whether a posthumous paternity judgment by a Wisconsin court Gives the claimant inheritance rights under Wisconsin law so that the child is a "child" for purposes of Social Security benefits section 216(h) (2) (A) of the Social Security Act. For the reasons stated below, we believe the claimant does qualify as a "child,' for purposes of Social Security benefits.

BACKGROUND

The claimant, Christine C. W~ (Christine), was born on August 27, 1981, in South St. Paul, Minnesota. Her alleged father, Dale A. Z~ (Dale), the wage earner and number holder, died on September 1, 1984, in Eau Claire County, Wisconsin. On April 24, 1997, claimant's mother, Laurie L. V~ (mother), applied for child's insurance benefits on behalf of Christine based on the Dale's earnings record.

While this claim was pending, on August 11, 1997, a paternity proceeding was brought against Dale under Wisconsin's paternity act, W.S.A.chapter 767, in the Circuit Court of Shawano County, Wisconsin. The court ordered genetic testing which resulted in a 99.65% probability that Dale was Christine's father. On July 30, 1997, the court adjudicated Dale to be Christine's father and issued a judgment of paternity. (joined with a suspended order for child support) finding Dale Z~ to be the father of Christine.^[1]

DISCUSSION

Christine is entitled to child's insurance benefits on Dale's account if, under Wisconsin intestate succession laws, she is eligible to inherit as one of Dale's children. 42 U.S.C. § 416(h) (2) (A); 63 Fed. Reg. 57590,57593-57594 (to be codified at 20 C.F.R. §§ 404.354, 404.355(a) (1)). At the time that you requested our opinion, the agency looked to the state law in effect at the time of wage earner's death. ^[2] Since that time, the regulations concerning the application of state law in determining child relationship have been revised and have now been published. See 63 Fed. Reg. 57590 (October 28, 1998). Therefore, the revised regulations should be applied to this claim and lead to an award of benefits. ^[3]

Under the revised regulation, if the insured is deceased, the agency may apply the law in effect at the time of the adjudication of the claim, or any version of state law in. effect from the first month a claimant could be entitled until the final decision, rather than the time of the wage earner's death. Fed. Reg. 57590, 57594 (October 28, 1998) (to be codified at 20 C.F.R. § 404.355(b) (4)). The agency will apply the version most beneficial to the claimant.

Because this claim has not been finally adjudicated, we can look to current Wisconsin law. Under current Wisconsin law, a nonmarital child is entitled to take in the same manner as .a marital child by intestate succession from his or father if the father has either been adjudicated to be the father in a paternity proceeding under W.S.A. chapter 767, or has admitted in open court that he is the father or has acknowledged himself to be the father in writing signed by him. W.S.A. § 852.05 (status of nonmarital child for purposes of intestate succession).

Dale was adjudicated to be Christine's father in a paternity proceeding brought under chapter 767 after his death. In 1994, the Wisconsin legislature amended Section 895.01 to expressly include paternity actions among those causes of action that survive death. w.S.A. § 895.01. In Wisconsin, Christine's paternity action survived the death of her father and she was not barred from bringing the posthumous paternity action proceeding under chapter 767, See also W.S.A. § 767.01 (granting Wisconsin circuit courts the jurisdiction to hear posthumous paternity actions).

In reaching its judgment that Dale was Christine's father, the Wisconsin court ordered and relied on genetic testing on the parties, pursuant to W.S.A. § 767.48. Under Wisconsin's paternity law, whether admitted at the hearing or pre-trial hearing, as was done here, the blood tests results can be admitted as evidence without expert testimony. W.S.A. §§ 767.47 () (c), 767.48: The Wisconsin court found that the tests were properly administered and that they resulted in a 99.65% probability that Dale was Christine's father. ^[4] Wisconsin law creates a statutory presumption that the alleged father is the child's parent if the genetic tests result in a statistical probability 99% or higher.

W.S.A. § 767.48. Here, the genetic testing resulted in a higher statistical probability — 99.65%. As no evidence was presented to rebut this presumption, the court properly found that paternity was established by "clear and satisfactory preponderance of the evidence" which is the proper standard of proof in Wisconsin paternity proceedings. W.S.A. § 767.48(8). See In re Paternity of M.J.B. 425 N.W.2d 404, 410 n.6 (Wis. 1988); /n re Paternity of M.A.V., 439 N.W.2d 829 (Wis. App. 1989).

Because Dale was adjudicated the father of Christine in this paternity proceeding brought under W.S.A. chapter 767, Christine has shown that she is entitled to take in the same manner as a marital child by intestate succession from her father under current Wisconsin law. W.S.A. § 852.05 (allowing nonmarital children to inherit intestate if they have established paternity pursuant to W.S.A. chapter 767); W.S.A. § 767.465 (allowing paternity to be adjudicated on the basis of default after service]; see also LeFevre, 482 N.W.2d at 905; Krenz-Buchanan v. Shalala, 884 F. Supp. at 327-28 . Accordingly, Christine has established that she is the child of the wage earner under .42 U.S.C. § 416(h) (2) (A), because she has shown that under Wisconsin law she has the same status relative to taking by intestate succession personal property of the wage earner as any of his surviving children.

We believe the revised regulations resolve your other concerns as they involved questions about Wisconsin posthumous paternity actions brought when the wage earner died before the Wisconsin legislature amended the survival of action statute to include posthumous paternity proceedings For instance, you asked about time limitations within which to bring a paternity proceeding. Under the revised regulations, the agency 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. 63 Fed. Reg. 57590, 57593 (October 28, 1998) (to be codified at 20 C.F.R. § 404.355(b)(2)). In any event, Christine's paternity action was not barred under existing Wisconsin law as paternity proceedings must be brought within nineteen years from the date of the child's birth. W.S.A. § 893.88. This action was brought within sixteen years of Christihe's birth.

CONCLUSION

For these reasons, Christine is the child of the deceased wage earner, as that term is defined by the Social Security Act. Therefore, she qualifies as his "child". for Social Security benefits. Christine's application for child's insurance benefits is not barred because her status as the child of the wage earner was determined posthumously, after his death.

A default paternity judgment issued after the NH's death on July 14, 1995 provides inheritance rights to the child claimant under Wisconsin law. The judgment was issued in accordance with Wisconsin law, which permits a circuit court judge to enter an order adjudicating paternity when a putative father fails to appear at a pretrial hearing after being served with notice of the proceeding.

This is with reference to your December 4, 1995 request for our assistance in determining whether Christopher K~ is entitled to child insurance benefits on James W. B~ 's account.

Background

Michelle L. K~ gave birth to Christopher J. K~ on January 17, 1995 in Sheboygan County, Wisconsin. Michelle K~ subsequently initiated a paternity action against James W. B~, and Mr. B~ was served with notice of the judicial proceeding. On July 5, 1995, a PreTrial hearing was conducted by Circuit Court Judge E. Edward S~ , and Mr. B~ was provided the opportunity to dispute the paternity allegation raised by Ms. K~. Mr. B~ did not appear at the PreTrial hearing, and Judge S~ was authorized by Wisconsin Annotated Statute § 767.465 to enter a default judgment against him, and conclude that he was Christopher K~'s father. However, before Judge S~ drafted the actual default order, Mr. B~ died on July 14, 1995. When Judge S~ entered the paternity judgment order on July 22, 1995, he did not appear to have knowledge of Mr. B~ 's death, and he contemplated child support payments and visitation arrangements in his findings.

Immediately following Mr. B~'s death, Ms. K~ filed an application with the Social Security Administration seeking child's benefits on behalf of Christopher K~. She subsequently provided the agency with the judgment of paternity made by the Circuit Court of Sheboygan County, Wisconsin on July 28, 1995. The agency now questions whether the posthumous judgement of paternity provides inheritance rights to Christopher K~ in the estate of James B~.

Discussion

In 1994, the Wisconsin legislature amended W.S.A. § 895.01 to expressly include paternity actions among those causes of action that survive death. Wisconsin courts had recently begun to favor allowing posthumous determinations of paternity in certain circumstances, but for those actions instituted after the amendment of W.S.A. § 895.01 in 1994, the issue was definitively decided. See Krenz-Buchanan v. Shalala, 884 F. Supp. 324, 325 (W.D. Wis. 1995). Because all relevant events in this case occurred after the subject statutory amendment, the posthumous entry of judgement is valid under Wisconsin law.

The notes to the file also raise the issue of whether there was sufficient evidence for Judge S~ to determine the question of paternity. Specifically, agency investigators noted that Mr. B~ never lived with Ms. K~; he never acknowledged paternity; and no other significant evidence supported Ms. K~'s allegations of paternity. However, W.S.A. § 767.465 permits the circuit court judge to enter an order adjudicating paternity when a putative father fails to appear at a Pretrial hearing after being served with notice of the proceeding.

Judge S~'s findings reflect that the paternity action was instituted; Mr. B~ was served; and the evidentiary hearing was conducted before he died on July 14, 1995. Judge S~ could have entered the default judgment the same day as the Pretrial hearing, and the fact that he did not enter the actual order until after Plaintiff had died would not implicate the basis upon which Judge S~ could adjudicate paternity under W.S.A. § 767.465. The subject statute does not require additional evidence to support a finding of paternity, and the mere failure to appear serves as an adequate basis to enter judgment.

In light of the recent amendment to W.S.A. § 895.01 which allows paternity judgments to be entered posthumously, along with consideration of W.S.A. § 767.465 which allows paternity to be adjudicated on the basis of default after service, Wisconsin courts would be likely to find in favor of Christopher K~ if he were to institute judicial proceedings. Therefore, the undersigned recommends that the agency award child benefits to Christopher K~ on the account of James B~.

A non-contested posthumous paternity judgment gives the child of the deceased NH inheritance rights under Wisconsin law, since such a judgment would have been recognizable under the laws of Wisconsin at the time the NH died, on October 31, 1989.

Pursuant to your request, we have considered whether a posthumous paternity judgment by a Wisconsin court gives the claimant inheritance rights under section 216(h) (2) (A) of the Social Security Act as a "child" for purposes of Social Security benefits. For the reasons stated below, we believe the claimant does qualify as a "child" for Social Security benefits.^[5]

On October 31, 1989, the wage earner and number holder, Carl J. G~ , died. He was domiciled in the State of Wisconsin. On February 1, 1990, the claimant, Jacob J. G~, was born. On April 10, 1991, Barbara M. F~, the claimant's mother, applied for child's insurance benefits for Jacob G~ on Carl G~'s account. In a decision, dated April 20, 1993, an ALJ found that Jacob did not have a right to a hearing on his application for child's insurance benefits "since no initial determination and no reconsidered determination ha[d] been made on the issue of paternity," and he denied the request for a hearing. On December 6, 1993, Barbara F~ obtained a court order declaring that Carl G~ was the father of Jacob G~. On May 9, 1994, Ms. F~ filed another application for child's insurance benefits for Jacob G~.

Under the Social Security Act, a claimant may demonstrate that he is the "child" of an insured wage earner in various ways. For example, the statute provides that an applicant can be deemed to be the child of a deceased insured if 1) the insured had acknowledged in writing or been decreed by a court to be the parent of the applicant; or 2) the insured is shown to have been the parent by evidence satisfactory to the Agency, and the insured was living with or contributing to the support of the applicant at the time of death. 42 U.S.C. §416(h) (3) (C). Jacob G~ does not qualify as the wage earner's child under these tests. Carl G~ did not acknowledge Jacob in writing, was not decreed by a court to be Jacob's parent before he died, and did not live with Jacob's mother or contribute to Jacob's support. Accordingly, Jacob does not qualify as a "child" under 42 U.S.C. §416(h) (3) (C).

Nevertheless, there is another way for the claimant to prove his status as a "child" for purposes of Social Security benefits. He may establish eligibility for benefits by showing that he would be entitled to inherit property under the intestate succession laws of the state in which the insured wage earner (the putative father) resided. 42 U.S.C. § 416(h) (2) (A); 20 C.F.R. § 404.354. When Jacob's most recent application for child's benefits was filed on May 9, 1994, his mother had obtained a court order declaring that Carl G~ was his father (dated December 6, 1993). It is our position that this court order established Jacob's entitlement to inherit property under the intestate succession laws of the State of Wisconsin.

It is true that, under previous Wisconsin law, a paternity proceeding could not be maintained posthumously against a putative father. See e.g., In re Estate of Blumreich, 84 Wis.2d 545, 267 N.W.2d 870 (1978). However, the Wisconsin legislature subsequently amended Wis.Stat. § 767.01 to grant the circuit courts jurisdiction to hear posthumous paternity actions, and created § 767.45, which lists the persons authorized to bring a paternity action (the child, the natural mother of the child, the man presumed or alleged to be the child's father or alleging himself to be the child's father, the personal representative of any of these persons, and the legal or physical custodian of the child). Nevertheless, when the state court of appeals later considered the issue of posthumous paternity actions in In re Paternity of N.L.B., 140 Wis.2d 400, 411 N.W.2d 144 (Ct. App. 1987), it held that the legislation did not permit paternity actions to be maintained against a deceased putative father, concluded that Blumreich remained good law, and found that causes of action for paternity did not survive the death of the alleged father. Consequently, the N.L.B. court found that a suit by the natural mother on behalf of the child against the parents and personal representative of the deceased putative father would not be allowed.

A case that the Wisconsin Supreme Court later decided, Le Fevre v. Schreiber, 167 Wis.2d 733, 482 N.W.2d 904 (1992), provided a different view. The Le Fevre court found that a lower court had erred in refusing to recognize a posthumous determination of paternity that had been brought by the mother and the deceased putative father's personal representative in order to pursue a wrongful death action. Although the Wisconsin Supreme Court attempted to distinguish Le Fevre from N.L.B. because the suit in Le Fevre was brought by the personal representative of the deceased, while the suit in N.L.B, was brought against the estate of the putative father, a subsequent decision held that Le Fevre must be read as overruling N.L.B., to the extent that N.L.B. had found no authority for any paternity action to be brought posthumously. Krenz-Buchanan o/b/o Jessica Krenz v. Shalala, 884 F. Supp. 324 (W.D. Wis. 1995). Krenz-Buchanan further held that the true distinction between N.L.B. and Le Fevre had been the absence of a contest between the potential intestate heirs of the estate and the putative child of the decedent. Krenz-Buchanan, 884 F.Supp. at 327. Meanwhile, during the year preceding Krenz- Buchanan, Section 895.01, Wisconsin's survival of action statute, was amended to include actions to determine paternity, thereby resolving the issue raised by N.L.B. The amendment to section 895.01 was effective June 11, 1994.

To summarize, then, the question presented by this case is whether, given the state of the law discussed above, Jacob G~ would be eligible to inherit property under Wisconsin's intestate succession laws, thereby entitling him to child's insurance benefits. In Schaefer o/b/o Schaefer v. Heckler, 792 F.2d 81 (7th Cir. 1986), the court held that this question could be answered by determining whether a posthumous declaration of paternity would have been recognizable under the laws of Wisconsin at the time the wage earner died. Carl G~ died on October 31, 1989. We conclude that a posthumous paternity judgment would have, arguably, been recognizable under Wisconsin state law as of October 31, 1989. As of that date, Le Fevre had been decided. Le Fevre found that a claimant, who was born out of wedlock after his father's death, and was later determined to be his father's child via a posthumous paternity action, had standing to bring a wrongful death action. In reaching this decision, the court recognized that Wisconsin's wrongful death statute gave recovery to the decedent's issue as determined under the intestacy statutes. Therefore, under Le Fevre, a claimant whose status as a decedent's child has been determined posthumously can inherit property under the intestate succession laws and can, therefore, qualify for child's insurance benefits. Furthermore, there is no evidence of a contest between Jacob C~ and potential intestate heirs of Carl C~'s estate. Therefore, whether or not we conclude that Le Fevre overruled N.L.B., as Krenz-Buchanan asserts, we can deem Le Fevre to be controlling, because the facts of this case are consistent with its facts.

For the foregoing reasons, based upon the December 6, 1993 order, Jacob G~ is the child and heir of Carl G~, is potentially entitled to take intestate property of Carl G~ , and qualifies as his "child" for Social Security benefits. Accordingly, the claimant's application for child's insurance benefits, filed on May 9, 1994, is not barred because his status as a "child" was determined posthumously.

The claim folder is returned herewith. Please do not hesitate to contact me if you have any questions.

For the same conclusion in a similar case, see the August 17, 1995 opinion letter regarding Anthony M. C~, SSN~

Although the Wisconsin survival of actions statute was not amended to include paternity actions until 1994, at the time of the NH's death (November 18, 1990) non-contested posthumous paternity actions could be brought under W.S.A. 767.45. Therefore, the child has inheritance rights under Wisconsin law based on the September 16, 1994 circuit court order resulting from the paternity action brought by the personal representative of the deceased NH's estate.

This is in response to your request for an opinion as to whether a posthumous paternity judgment by a Wisconsin court gives the claimant inheritance rights under section 216(h) (2) (A) of the Social Security Act as a "child" for purposes of Social Security benefits. For reasons stated below, we believe the claimant does qualify as a "child" for Social Security benefits.

The claimant, Tonique M. C~, was born on May 10, 1991. Her father, Anthony M. C~, the wage earner and number holder, had died on November 18, 1990. On June 27, 1991, claimant's mother, Diah H. T~, filed an application for child's insurance benefits based on the father's earnings record. This claim was denied upon initial review and reconsideration. An administrative hearing was held and, on September 24, 1992, claimant's claim was denied by an ALJ because she did not meet any of the requirements for being a child under state law or the Social Security Act. Claimant did not immediately seek further review of this decision.

The Social Security Act allows an individual to demonstrate that he is the "child" of an insured wage earner in several ways. An applicant's biological relationship to the wage earner is not determinative of his status as a "child" for purposes of Child's Insurance Benefits purposes. For purposes of this case, the relevant test for demonstrating that an individual is the "child" of an insured wage earner is the eligibility to inherit property under the intestate succession laws of the state in which the insured wage earner resided. 42 U.S.C. § 416(h) (2) (A); 20 C.F.R. against the estate of the putative father, whereas LeFevre, involved a posthumous paternity proceeding brought by the personal representative of the deceased, an action the Supreme Court characterized as "clearly allowed under the plain meaning of sec 767.45(1), Stats." Id. at 738, 482 N.W.2d at 906. The court added that the state's interest in N.L.B. "was more compelling than in [LeFevre since those actions were brought against the estate and were contested." Id.

The United States District Court for the Western District of Wisconsin recently examined Wisconsin law concerning posthumous paternity actions. Krenz-Buchanan v. Shalala, 884 F. Supp. 324, 325 (W.D. Wis. 1995). The court held that the critical difference between the outcome in N.L.B. and LeFevre is the absence of a contest between the potential intestate heirs of the estate and the putative child of the decedent. Krenz-Buchanan v. Shalala, 884 F. Supp. at 327. The court considered the fact that LeFevre involved a paternity action brought by the personal representative the strongest indication that the paternity action was not contested by the estate. Id.

As in LeFevre and Krenz-Buchanan, this case involves a paternity action brought by the personal representative of the decedent's estate. See September 16, 1994 Order. The deceased wage earner's parents were named in this action as co-respondents and heirs of the wage earner. They appeared in the paternity action and the Order does not suggest any contest between the potential heirs and the putative child. At the time of the wage earner's death, and prior to the subsequent amendment of W.S.A. § 895.01, non-contested posthumous paternity actions could be brought under W.S.A. § 767.45. LeFevre, 167 Wis. 2d at 738, 482 N.W.2d at 906; Krenz-Buchanan v. Shalala, 884 F. Supp. at 327-28..^[6]

For these reasons, based upon the September 16, 1994, order, claimant is the child and heir of the deceased wage earner. As such, she is potentially entitled to take intestate property of the deceased wage earner, and qualifies as his "child" for Social Security benefits.

It is our opinion that the Wisconsin state court judgment that Anthony M. C~ was the claimant's father constitutes new and material evidence warranting reopening of the claimant's previous application, and claimant's request for reopening was filed within four years of the initial determination. 20 C.F.R. §§ 404.988(b); 404.989(a) (1). Although the Wisconsin survival of actions statute was amended in 1994, it appears as though a posthumous paternity judgment would have nevertheless been available to claimant under W.S.A. § 767.45(1) at the time of the ALJ's decision. LeFevre v. Schreiber, 167 Wis.2d at 738, 482 N.W.2d at 906. Moreover, given the recent efforts of the Wisconsin legislature and the liberal construction applied by state and federal courts in this area, we believe it would be unlikely to obtain affirmance of an adverse decision upon judicial review.

Where blood tests taken during a paternity action showed that the probability of paternity is 99.41 percent for the NH, and the NH died before the paternity court entered its final judgment, Wisconsin would recognize a posthumous court order of paternity. (L~, Darryle, ~ - RAV [W~] to Director, RSI/SSIB, Chic. 01/24/92)

ISSUE

This is with reference to your memorandum inquiring whether the blood test results showing 99.41 percent probability of paternity is sufficient to entitle a child to surviving child's insurance benefits on the earning record of the deceased alleged father.

FACTS

The facts may be briefly summarized: The child, Christopher W~, was born to the marriage of Deborah and Joseph W~. Deborah alleged, however, that Joseph was not Christopher's natural father but that Darryle L~, the number holder, was Christopher's biological father. She subsequently initiated a paternity action on October 12, 1990 to prove her allegation. Blood samples were taken of Deborah and Joseph on February 26, 1991, and Darryle submitted to blood tests on March 12, 1991. The tests' results supported Deborah's claim. They revealed the probability of paternity as 99.41 percent for Darryle, and he could not be excluded as the biological father. Joseph, who had taken a blood test in a divorce proceeding a year earlier, had been already ruled out as Christopher's natural father because he lacked genetic markers that were present in Christopher but absent in Deborah. D. died on April 3, 1991 before the paternity court entered its final order or judgment.

DISCUSSION

Wisconsin law creates a rebuttable presumption of paternity when blood tests results meet two factors. According to the state statute, 'if the blood tests show that the alleged father is not excluded and that the statistical probability of that alleged father's parentage is 99.0% or higher, the alleged father shall be rebuttably presumed to be the child's parent." Wis. Stat. Ann. § 767.48(1)(b) (West 1991). Here, the blood test results met these factors. Darryle was not excluded as the biological father, and the statistical probability of parentage was 99.41 percent. Thus, there was created a rebuttable presumption that Darryle is Christopher's biological father. This presumption was never rebutted.

This fact, however, does not answer the ultimate question of whether Christopher is eligible for child's benefits based on Darryle's earnings record. If Wisconsin law allows Christopher to take by intestate succession from Darryle's estate, then he is entitled to child's benefits. The state of Wisconsin allows a non-marital child to take by intestate succession from his father's estate if paternity has been:

1. adjudicated under chapter 767 (which requires a court order or judgment); 2. admitted in open court; or 3. acknowledged by the putative father in signed writing.

Wis. Stat. Ann. § 852.05 (West lggl). No paternity court order was ever entered adjudging Darryle to be the father of Christopher, and Darryle never admitted or acknowledged Christopher to be his child.

There are two Wisconsin court cases that hold that a paternity action cannot survive the death of the putative father. See In Re Paternity of N.L.B., 411 N.W.2d 144 (Wis.App. ]987); In Re Estate of Blumreich, 267 N.W.2d 870 (Wis. lg78). These cases determined that section 895.01 of the Wisconsin statutes preclude survival of such action. See Wis. Stat. Ann. § 895.01 (West 1991). Yet in both of these cases the paternity action was commenced after the death of the putative father. In In Re Paternity of N.L.B., the child's mother initiated suit nine months after the putative father had been killed. 411 N.W.2d at 145. Similarly, in In Re Estate of Blumreich, the child's mother filed the paternity action almost three months after the putative father died in an automobile accident. 267 N.W.2d at 872. In those cases, there obviously were no blood tests conducted, and the putative father, of course, had no opportunity to defend against the suit. The lack of blood testing and the petitioner's inability to defend himself, among other similar reasons, are what probably influenced the Supreme Court of Wisconsin to state that "a filiation or bastardly proceeding may not be instituted after the death of the putative father, so as to charge his estate with the duty to support the illegitimate.' In Re Estate of Blumreich, 267 N.W.2d at 874 (quoting Annot, 58 A.L.R.2d 188, 191 (1974)).

The policy rationale behind such statement was explained perhaps best in a Michigan case. There, an alleged out-of-wedlock child claimed that he was a long-lost son of the deceased individual. Rejecting the individual's claim, the court stated, 'It appears that the mischief these provisions [pre-death order of paternity or written acknowledgment of paternity] were intended to obviate is the situation where deceitful claims are made against an estate by individuals posing as the deceased's long-lost children.' Matter of Estate of Spencer, 383 N.W.2d 266, 269 (1985). Requiring a written acknowledgement or court order or decree before the putative father's death guarantees that he would have had the opportunity to defend against specious or deceitful claims.

In the present case, Deborah filed the paternity suit on Christopher's behalf well before Darryle's death. In March 1991, Darryle submitted to blood tests that practically proved that he was Christopher's biological father. A day before Darryle died, Marlene S~ , a child support specialist for the state of Wisconsin, stated that most judges consider such high probability of paternity as legal proof of paternity.

This case does not present a situation where the claimant initiated suit after the putative's father's death, thereby depriving him of all opportunity to contest the action. See Michael B~ , ~, RA V (Hughes) to ARC- Programs V, 5/6/85. Indeed, Darryle had ample opportunity to contest paternity. By submitting to the blood tests, he was given a chance to defeat the paternity claim, but instead the results created a rebuttable presumption that he was the child's biological father. Consequently, the common law and statutory language should not be read so narrowly to deny acceptance of a posthumous court order of paternity.

Accordingly, we conclude that Wisconsin would recognize a posthumous court order of paternity in this situation, and we recommend that you ascertain whether Deborah obtained such paternity order or whether she will attempt to do so in the future. In any case, the court order should be accepted as conclusive proof that Darryle is the biological father of Christopher and entitle Christopher to child's benefits.

Should you have any questions, do not hesitate to contact us. The claims folder is returned herewith.

PARENT AND CHILD — FEDERAL DEFINITION OF "CHILD" — COURT DECREE OF PATERNITY — WISCONSIN

A Wisconsin statute, effective July 1, provides that an action may be brought to establish paternity by the child, the child's mother, the putative father, or by the personal representative if that person has died. While the statute permits the bringing of the action by the above described parties, it does not permit these parties to bring the action against the personal representative of the alleged father's estate. Notwithstanding this, in the instant case, although the personal representative of the estate, the deceased's mother, did not formally join in the action brought by the child's mother, a finding of paternity would be justified in that the personal representative testified in support of the petition. (O~ , Ricky D., ~ — RAV (Dorn), to ARC, 02/01/84.)

You have requested our assistance in determining whether Ben C. T~ is entitled to benefits as the child of Ricky D. O~. We conclude, for the reasons discussed below, that Ben T~ is entitled to benefits.

The relevant facts may be briefly summarized: Ben T~ was born in LaCrosse, Wisconsin to Alice J. T~ on January 14, 1982. Ricky 0~, the wage earner, died eight days later on January 22, 1982 in Veraqua, Wisconsin. Alice T~ and Arlene O~ , the wage earner's mother, have stated that the wage earner was the child's father. However, there is no evidence of a written acknowledgement of paternity, a court declaration of paternity, or a court order for support made during the wage earner's lifetime. There is also no evidence that the wage earner was living with or contributing to the support of the child (or the mother) when he died. ^[7] Accordingly, Ben T~ is not entitled to benefits under the "federal-law" tests of Section 216(h)(3)(c) of the Social Security Act.

Section 216(h)(2)(A) of the Social Security Act provides that an individual will be considered the "child" of a wage earner if that individual would be entitled to inherit from the wage earner under the law of the wage earner's domicile at the time of the latter's death. Pursuant to Wis. Stat. Ann. §852.05 (West), an illegitimate child may inherit from his or her father if the parents have married subsequent to the child's birth, the father has acknowledged his paternity either in writing or in open court, or the father has been adjudicated as such in a paternity proceeding. In the present case, the child's parents never married, nor did Ricky O~ acknowledge his paternity in writing or in open court. However, on January 3, 1983 the Vernon County, Wisconsin Circuit Court issued a posthumous judgment of paternity declaring Ricky O~ to be the father of Ben T~ . This judgment was based on a petition brought by Alice T~ and on the sworn testimony of Alice T~ and Arlene O~ .

Prior to July 1, 1981, paternity proceedings in Wisconsin were governed by the provisions of Wis. Stat. Ann. §§52.21 to 52.45. Paternity actions under these provisions could only be brought by a district attorney and only during the lifetime of the putative father. J.M.S.v. Benson, 297 N.W.2d 18 (Wis. 1980); Estate of Blumreich, 267 N.W.2d 870 (Wis. 1978), appeal dismissed for want of a substantial federal question, 439 U.S. 1061 (1979).^[8] However, Laws 1979, Chapter 352 repealed these provisions effective July 1, 1981, and enacted new provisions governing paternity proceedings at Wis. Stat. Ann. §§767.45 to 767.53 (West). ^[9] Under these latter provisions, a paternity action may be brought by the child, the child's mother, the putative father, or by the personal representative of one of these persons if that person has died. Wis. Star. Ann. §767.45 (West).

In David K~ ,~ , RA V (Dom) to ARC-Programs V, 11/3/82, the wage earner's mother, as his personal representative, brought a posthumous action under the new provisions seeking to have the wage earner declared to be the claimant's father. We determined that the resulting posthumous judgment of paternity was not valid under Wisconsin law, since the wage earner had died prior to the July 1, 1981 effective date of the new provisions governing paternity actions and inheritance by illegitimate children (see note 1, supra). We found that the new provisions were inapplicable in the cases of wage earners dying prior to July 1, 1981, and that under the former provisions applicable in such cases an illegitimate child could not inherit from his or her father based on a posthumous determination of paternity. Estate of Blumreich, supra.

We also considered in K~ the issue of whether the new paternity action provisions authorize a posthumous paternity action brought by other than the personal representative of the alleged father (assuming that the alleged father died on or after July 1, 1981). We tentatively answered this question in the negative, but suggested that "this question be resubmitted to us if a future case involves a posthumous paternity action brought by other than the personal representative of the alleged father, assuming that the wage earner died on or after July 1, 1981." In the present case, the wage earner died on January 22, 1982 and the paternity action was brought by Alice T~, who was not acting as the wage earner's personal representative.

Our tentative opinion in K~ was based in part on the fact that although §767.45 authorizes a child, mother, father, or the personal representative of any of these persons to bring a paternity action, and thus allows the personal representative of the father to bring an action after the father's death, the statute does not expressly authorize any other individual to bring a paternity action against the personal representative of the father. We also observed that apart from the reference to the right of personal representative of the alleged father to bring a paternity action, the new provisions at §§767.45 to 767.53 contain various references to arrest of the father (§767.465), blood tests (§767.456(3)), rights of the father to cross-examination of witnesses against him (§67.475), and other references which necessarily presume that the alleged father is still alive. We noted that in Blumreich, the Wisconsin Supreme Court had cited similar references in the old paternity provisions as evidence that such actions were required to be brought under those provisions during the lifetime of the father. The Blumreich Court had also relied on policy considerations involving spurious or delayed claims against an individual's estate. We reasoned that such considerations would still apply under the new provisions, except where the individual's estate, through the personal representative, itself initiated an action for declaration of paternity.

We also noted in K~ that we had briefly discussed the issue of posthumous paternity actions under the new provisions with a member of the Wisconsin legislative council, who expressed the tentative view, subject to judicial interpretation, that the new provisions did not contemplate the filing of a paternity action against the estate of an individual alleged to be a child's father. Accordingly, we concluded in K~ that, absent a court decision to the contrary, a paternity action under the new provisions may not be maintained in Wisconsin following the death of the alleged father, unless the action is brought by the personal representative of the alleged father.

We reaffirm that conclusion here. We have found no subsequent appellate case indicating that a posthumous paternity action in Wisconsin may be brought other than by the personal representative of the alleged father. We think that our analysis of the statute in—was sound and supports the conclusion that although the legislature intended to authorize the personal representative of a putative father to bring an action to have the deceased declared to be the father of a child, the legislature did not otherwise intend potentially spurious paternity actions to be brought against the estate of a deceased individual. Unless and until a Wisconsin appellate court holds to the contrary, we conclude that Wis. Stat. Ann. §§767.45 to 767.53 allows a posthumous paternity action to be brought only by the personal representative of the alleged father.

Despite this conclusion, we nevertheless believe that benefits should be awarded to the claimant in this case. Although the paternity action was brought by Alice T~ as the mother of Ben T~ and not as "personal representative" of Ricky 0~, we note that Ricky O~ died at the age of 24 and left no estate. Although the wage earner's mother, Arlene O~ , did not join in the action as a formal party, she testified in support of Alice's petition. Were Ricky O~ to have a "personal representative" capable of bringing a posthumous paternity action under §§767.45 to 767.53, that individual in all likelihood would be Arlene 0~. Under such circumstances, we believe that benefits should not be denied simply because the wage earner's "personal representative" did not formally bring the paternity action, where that individual fully supported that action. To deny benefits would merely require Artene 0~, who testified in behalf of the paternity action, to petition the court to appoint her as "personal representative" and allow her to formally join in the paternity action in such capacity. Although the Wisconsin legislature intended to foreclose spurious paternity claims against an individual's estate, we think that these considerations nave less force when the wage earner's family concurs in such claims. As we have previously stated in a somewhat different context, "to require a genuine contest where the wage earner's family agrees that the wage earner is the father puts a claimant in an untenable position." Larry G~ ,~ , RA V (H~) to ARC-Programs V, 7/8./82.

If the paternity action brought by the claimant's mother had been genuinely one against the wage earner's estate, we think that denial of benefits would be appropriate under our interpretation that the statute precludes such actions. However, where the wage earner leaves no estate and the likely representatives of such an estate concur in the paternity action, we think that the paternity action should be given effect and benefits awarded. Accordingly, we conclude that Ben T~ is entitled to benefits as the child of Ricky 0~.