You have asked us to provide a legal opinion regarding whether Cortez Y~ (Cortez)
may be entitled to Social Security survivor benefits on the earnings record of Deon
Y~ (the deceased number holder). Specifically, you have asked whether a sibling deoxyribonucleic
acid (DNA) test report is sufficient to establish that Cortez is the number holder's
child under Arkansas law. We believe that the sibling DNA test report is sufficient
to establish that Cortez is the number holder's child under Arkansas law. He is entitled
to benefits on the number holder's account as of the date of the DNA test report establishing
As we understand the facts, the number holder was born on January 7, 1980. He died
on September 1, 2002, while residing in Arkansas. He never married. In September 2002,
Shonna R~ filed claims for child survivor's benefits on the number holder's account
on behalf of her biological children, Cortez (born August 4, 2000), Deon Y~ Jr. (born
August 10, 1999), and Shanikqua Y~ (born April 6, 1988). The Social Security Administration
(Agency) allowed Deon Jr. and Shanikqua's claims, but denied Cortez's claim because
Ms. R~s provided no evidence that the number holder was Cortez's father.
In March 2007, Ms. R~s filed a new claim for child's survivor benefits on the number
holder's account on behalf of Cortez. With this new claim, Ms. R~s submitted a sibling
screening report. The March 5, 2007, report showed the probability of full-siblingship
between Cortez and Deon Jr. as 99.8 percent and that the likelihood that they shared
the same biological mother and father as 6,505 to one. Ms. R~s also submitted four
statements from friends and relatives indicating that the number holder acknowledged
that Cortez was his son and that the number holder supported him.
A child may be eligible for Social Security survivor benefits if he is the child of
a number holder who died fully or currently insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.355. To show that he is the number holder's
child, the child must prove one of the following: (1) he is the number holder's natural
child, and the number holder and the child's other parent participated in a ceremony
that would have resulted in a valid marriage, except for a legal impediment; (2) he
is the number holder's natural child and a) the number holder has acknowledged this
in writing, b) a court has decreed the number holder to be the child's parent, or
c) a court has ordered the number holder to contribute to the child's support because
the child is the number holder's child; (3) the number holder was the child's natural
parent and was either living with the child or contributing to his support when the
number holder died; or (4) the child could inherit property through intestate succession
as the number holder's child. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).
Here, Cortez cannot prove the first three elements mentioned above. First, the number
holder and Ms. R~s never participated in a marriage ceremony. Second, the number holder
never acknowledged in writing that Cortez was his natural child, no court ever decreed
him to be his parent, and no court ever ordered him to contribute to his support.
Third, there is no indication that the number holder was living with Cortez or contributing
to his support when he died. Consequently, to prove that he is eligible for benefits
on the number holder's account, Cortez must show that he could inherit property through
intestate succession as the number holder's child. Arkansas law controls because the
number holder had his permanent home in Arkansas when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).
Under Arkansas law, in pertinent part, an illegitimate child may inherit property
from his father through intestate succession if the child has commenced an action
or a claim against his father's estate within 180 days of his father's death and a
court of competent jurisdiction has established the child's paternity. See Ark. Code Ann. § 28-9-209(d)(1) (West 2007). Agency regulations, however, provide
that the Commissioner will not apply any state law that requires a court to establish
paternity within a specified period of time after the number holder's death. See 20 C.F.R. § 404.355(b)(2). Moreover, if state law requires a court determination of
paternity, the Commissioner will not require the child to obtain such a determination.
See id. Instead, the Agency will apply the same standard of proof that a state court would
apply and thereby make its own determination of paternity. See id.
Arkansas law provides that when a child alleges that he is the illegitimate offspring
of a deceased man and, on that basis, claims the right to share in his estate, he
must prove paternity by clear and convincing evidence. McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983); see also Ark. Stat. Ann. 9-10-103(f) (West 2007) (where paternity is disputed, a court may
issue a temporary child support order if there is clear and convincing genetic evidence
of paternity). Clear and convincing evidence is "proof so clear, direct, weighty and
convincing as to enable the fact finder to come to a clear conviction, without hesitation,
of the matter asserted." Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988).
Arkansas courts consider DNA test reports when they make paternity determinations.
See Ross v. Moore, 785 S.W.2d 243, 245 (Ark. Ct. App. 1990) ("genetic testing can, with a high degree
of certainty, identify the father of a child and, thus, be viewed as conclusive by
the fact-finder in paternity suits"). Under Arkansas law, when the father is deceased
or unavailable, the trial court may order that the mother and child submit to scientific
testing to determine whether the putative father can be excluded as being the biological
father of the child and to establish the probability of paternity if the testing does
not exclude the putative father. See Ark. Code Ann. § 9-10-108(a)(3)(A) (West 2007). In addition, an Arkansas court may
include paternal relatives within its order for paternity testing. See Ark. Code Ann. § 9-10-108(a)(3)(B) (West 2007). Thus, we believe that an Arkansas
court would consider the DNA test in this case to establish the number holder's paternity.
Under Arkansas law, if the results of the paternity test establish a 95 percent or
more probability of inclusion that the putative father is the biological father of
the child after corroborating testimony of the mother concerning access during the
probable period of conception, "it shall constitute a prima facie case of establishment
of paternity." Ark. Code. Ann. § 9-10-108 (a)(6)(A) (West 2007). The DNA test report
in this case showed the probability of full-siblingship between Cortez and Deon Jr.
as 99.8 percent. In addition, Ms. R~'s assertion that the number holder is the father
presumes that he had access to her during the probable time of Cortez's conception.
And the statements that Ms. R~s submitted are additional evidence to show that the
number holder acknowledged Cortez as his son. Given these facts, we believe that an
Arkansas court would find that Ms. R~s has clearly and convincingly shown that the
number holder was Cortez's father.
With regard to the first possible month of entitlement, Agency policy provides that
an act that gives inheritance rights is generally effective only from the date of
that act, while an act that legitimates generally is effective retroactive to the
birth of the child. Social Security Ruling 85-17. Arkansas law allows an illegitimate
child to inherit from her father once paternity has been established, even if the
child is not legitimate. Ark. Code Ann. § 28-9-209(d) (West 2007). In this case, the
act that gives Cortez inheritance rights is the March 5, 2007, DNA laboratory report.
The regulations provide that if the number holder is deceased, his children are entitled
to benefits beginning the first month covered by the application in which they meet
all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The requirements
for entitlement to child's benefits include proof that the child (a) is the insured
person's child, (b) is dependent on the insured, (c) applied for benefits, (d) is
unmarried, and (e) under the age of 18. 20 C.F.R. § 404.350(a)(1). Cortez did not
meet all the requirements for entitlement until the March 5, 2007, DNA laboratory
report showed the probability of full-siblingship between Cortez and Deon Jr. as 99.8
percent and the likelihood that they shared the same biological mother and father
as 6,505 to one. Thus, the first date that Cortez could be entitled to child's benefits
on the number holder's account is March 5, 2007.
In sum, we conclude that the DNA test reports and the additional evidence that Ms.
R~s submitted are sufficient to establish that Cortez is the number holder's child
under Arkansas law. As such, Cortez can receive Social Security survivor benefits
on the number holder's account as of March 5, 2007.
Tina M. W~
Regional Chief Counsel
Assistant Regional Counsel