According to the Florida Intestacy Laws, to establish paternity after the death of the putative father, the standard of proof should be clear, strong and unequivocal, that is, the person born out of wedlock should prove paternity by clear and convincing evidence. In Florida, “Heirs” are those persons who are entitled under the statutes of intestate succession to the property of a decedent. Heirs conceived before the decedent’s death, but born thereafter, inherit property as if they were born in the decedent’s lifetime. For a decedent without a surviving spouse, the entire intestate estate passes to the decedent’s descendants. 

In this case, the claimant is born out of wedlock but he is the lineal descendant of his father based on the fact that the paternity of the father was established by an adjudication after the death of the father. The DNA testing used samples from Claimant (C1), Claimant’s mother, and NH’s son (C2). The DNA test results, dated December 13, 2012, show a 99.8% probability that C1 and C2 are full-siblings, that is, they share the same biological mother and father. C2’s birth certificate lists NH as C2’s father, and SSA has already determined C2 to be NH’s surviving child. Additionally,  C1’s mother and maternal grandmother both reported that NH had admitted to being C1’s father and under Florida law, evidence of oral acknowledgments can provide some support for a paternity claim. We believe the information provided contains clear and convincing evidence that C1 is NH’s child under Florida intestacy law.

QUESTION

You asked whether DNA testing results showing a 99.8% probability of full-siblingship between the claimant and the son of a deceased number holder, along with statements from the claimant’s mother and maternal grandmother that the deceased number holder acknowledged paternity of the claimant, establishes the claimant is the number holder’s child for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record.  

OPINION

The DNA evidence and statements from the claimant’s mother and maternal grandmother provide clear and convincing evidence that the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record. 

BACKGROUND

According to the information provided, the Claimant’s, mother applied on C1’s behalf for CIB on the earnings record of Thomas , the number holder (NH). NH was a resident of Florida when he died on June 30, 2012.  According to his death certificate, NH was never married, and the information provided does not indicate that C1’s mother was married to anyone else. 

C1 was born in July. Although her birth certificate does not list her father, C1’s mother reported that NH had admitted to being C1’s father, and C1’s maternal grandmother reported that NH had admitted to her that he was C1’s father. NH reportedly told C1’s maternal grandmother that he and C1’s mother had “made another” and that he could not wait for C1 “to get here.” 

C1’s mother also arranged for out-of-state DNA testing.  The DNA testing used samples from C1, C1’s mother, and NH’s son (C2). The DNA test results, dated December 13, 2012, show a 99.8% probability that C1 and C2 are full-siblings, that is, they share the same biological mother and father.  Social Security Administration (SSA) records show that C1 and C2 share a mother. C2’s birth certificate lists NH as C2’s father, and SSA has already determined C2 to be NH’s surviving child.

DISCUSSION

To be eligible for CIB on the earnings record of a fully or currently insured deceased individual, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2013). All references to the Code of Federal Regulations are to the 2013 edition.

“Child” includes “the child” of an insured individual. Act § 216(e); 20 C.F.R. § 404.354. When a claimant’s parents have not gone through a marriage ceremony, the claimant may show she is “the child” of a deceased individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) Nothing in the information provided suggests Claimant qualifies as a child under section 216(h)(3)(C).  The evidence does not indicate that NH acknowledged his paternity of Claimant in writing, include a court decree or order related to NH’s paternity of Claimant, or indicate NH was living with or contributing to Claimant’s support at the time of his death. As such, we do not further analyze section 216(h)(3)(C). of the Act. Under section 216(h)(2)(A), a claimant must show she would be entitled to a child’s share of the insured’s intestate personal property under the law of the State in which the insured was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) GN 00306.055(A)(1). According to NH’s death certificate, NH was domiciled in Florida when he died. Therefore, we look to Florida intestacy law to determine whether C1 is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). 

“Heirs” are “those persons . . . who are entitled under the statutes of intestate succession to the property of a decedent.” Fla. Stat. Ann. § 731.201(20) (West 2013).  Heirs conceived before the decedent’s death, but born thereafter, inherit property as if they were born in the decedent’s lifetime. Fla. Stat. Ann. § 732.106 (West 2013).  For a decedent without a surviving spouse, the entire intestate estate passes to the decedent’s descendants. Fla. Stat. Ann. § 732.103(1) (West 2013). A person born out of wedlock is the lineal descendant of his or her father if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void;

(b) The paternity of the father is established by an adjudication before or after the death of the father; or

(c) The father acknowledges his paternity in writing.

Fla. Stat. Ann. § 732.108(2) (2013). C1 could not qualify as a NH’s lineal descendant under subsection (a) because NH and C1’s mother did not attempt to marry. The evidence provided also does not indicate NH acknowledged in writing that Clamant was his child for the purposes of subsection (c). Therefore, the only means by which C1 could establish she is NH’s lineal descendant is by an adjudication of paternity. See Fla. Stat. Ann. § 732.108(2)(b). Although the record does not include an actual paternity adjudication under Fla. Stat. Ann. § 732.108(2)(b), SSA may still determine NH’s paternity of C1“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).

To establish paternity under Fla. Stat. Ann. § 732.108(2)(b) after the death of the putative father, “the standard of proof . . . should be clear, strong and unequivocal, that is, the person born out of wedlock should prove paternity by clear and convincing evidence.”  POMS PR 01210.011(A)(2) (quoting Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. Dist. Ct. App. 1991)) (internal quotation marks omitted); see Fagan v. Cramer, 877 So. 2d 945, 946 (Fla. Dist. Ct. App. 2004); In re Estate of R~ , 520 So. 2d 99, 101 (Fla. Dist. Ct. App. 1988). Although we have not found Florida case law that further defines “clear and convincing evidence” in the context of intestacy proceedings, Florida courts have described the “clear and convincing evidence” standard in other contexts as “something more than a simple preponderance and less than the standard applied in criminal cases, and that it is evidence free of substantial doubts or inconsistencies.” POMS PR 01210.011(A)(2) (quoting In re Interest of D.J.S., 563 So. 2d 655, 661 (Fla. Dist. Ct. App. 1990)) (internal quotation marks omitted). Courts also have defined the “clear and convincing evidence” standard as “that intermediate level of proof that entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” POMS PR 01210.011(A)(2) (quoting R.S. v. Dep’t of Children & Families, 831 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2002)) (internal quotation marks omitted).

We believe the information provided contains clear and convincing evidence that C1 is NH’s child under Florida intestacy law. C1’s mother and maternal grandmother both reported that NH had admitted to being C1’s father. NH reportedly told C1’s maternal grandmother that he and C1’s mother had “made another” and that he could not wait for C1 “to get here.” Under Florida law, evidence of oral acknowledgments can provide some support for a paternity claim. See POMS PR 11-020(B)(2) (citing Fla. Stat. Ann. § 732.108(2)(b)); see, e.g., Ezell-Titterton, Inc. v. A.K.F., 234 So. 2d 360, 367 (Fla. 1970) (finding decedent’s alleged “exuberance over the prospect of having a child by claimant’s mother” could support determination that decedent was child’s father).

Additionally, DNA test results show a 99.8% probability that C1 and C2 are full-siblings, that is, they share the same biological mother and father.  We have previously determined that Florida courts would accept genetic testing as probative evidence on the issue of paternity for intestacy purposes. See POMS PR 01115.011(B) (PR 09-032). SSA has already determined that C2 is NH’s surviving child, and the provided information shows no reason to question that determination.  The information also shows a high probability that C1 and C2 are siblings. Therefore, we need not review C2’s relationship to NH before interpreting the 99.8% probability that C1 and C2 are full siblings as a 98% probability that NH is C1’s father, given SSA’s knowledge that C1 and C2 share the same mother and that C2 is NH’s child. See Social Security Ruling (SSR) 06-02p (stating SSA may determine a claimant’s relationship to a number holder based on the claimant’s relationship with the number holder’s known child, without reviewing the known child’s relationship to a number holder, if SSA has already determined the known child qualifies as a child under section 216(h)(3), there is no reason to question that determination, and DNA testing results show a high probability of a sibling relationship between the claimant and known child).  If SSA qualified C2 for CIB under section 216(h)(2)(A) of the Act, we would not need to rely on SSR 06-02p to equate the likelihood of siblingship to a probability of paternity under state law, because SSA would have determined already that C2 could inherit as a child of NH under the appropriate state law. . 

SSA could determine C1 was NH’s child for purposes of her eligibility for CIB on NH’s earnings record. POMS PR 0115.011(H)(2) (finding DNA tests showing a 99.8% probability that claimant shared a father with the number holder’s son was clear and convincing evidence of paternity).

CONCLUSION

For the foregoing reasons, the evidence provides clear and convincing proof that C1 is NH’s child for purposes of intestate succession in Florida. Therefore, and SSA adjudicator could conclude C1 is NH’s child for determining her eligibility for CIB on NH’s earnings record. 

Sincerely,

Mary A. Sloan

Regional Chief Counsel

By:_____________

Kevin M. Parrington

Assistant Regional Counsel

Under Florida law, DNA testing showing a 99.9998 percent probability the deceased number holder's parents are the claimant's grandparents is sufficient to convince the trier of fact without hesitancy that the number holder is the actual father despite the presence of the name of the husband of the claimant's mother as father on the birth certificate.

Although the Florida law does not confer legitimacy on the relationship, it does require that illegitimate and legitimate children be treated equally. The child would be eligible for benefits six months prior to the date of the application or as of the month of birth, whichever came later.

This is in response to your request for an opinion concerning whether a DNA test report is sufficient evidence to establish a parent-child relationship for purposes of determining the child's eligibility for Child's Insurance Benefits (CIB). For the reasons set forth below, we believe there is sufficient evidence to establish a parent-child relationship. Further, we believe that the child's entitlement to CIB began six months prior to the date he applied for benefits.

Factual Background

Crystal, the child claimant's mother, stated that she lived with the wage earner, Aaron , and his parents in Florida for about two weeks in 2002. She married Jason , in July of 2001 or 2002, and the couple lived together for about four months. They are separated but have not divorced. The child, Jason , was born in Connecticut on November. Jason, is stated to be the child's father on his birth certificate. The wage earner, Aaron, died in Florida on November 2, 2004. Crystal has submitted DNA test results completed February 26, 2006, showing a 99.9998 percent probability that the wage earner's parents are the child's grandparents. She filed for CIB on the child's behalf on March 9, 2007.

Analysis

The Social Security Act ("the Act") provides for the payment of CIB to a child of a wage earner who dies when fully or currently insured if the child has filed an application for CIB and was unmarried and under age 18 (or age 19 if a full-time student) at the time the application was filed and was dependent upon the wage earner at the time of death. Act § 202(d)(1); 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2006); Programs Operations Manual System (POMS) RS 00203.001.A.1.

For purposes of CIB eligibility under the Act, a child is defined as the child, adopted child or stepchild of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e). If a putative father (here, the wage earner) is deceased and had never married the child's mother, the child's status as the surviving child of the putative father is governed by either section 216(h)(3)(C) or section 216(h)(2)(A) of the Act. To establish child status under section 216(h)(3)(C) of the Act, the child must show one of the following: (1) that the putative father acknowledged in writing that the child is his son, (2) that a court decreed the putative father to be the father of the child, (3) that the putative father had been ordered to contribute to the support of the child or (4) that the putative father is the father and was living with or contributing to the support of the child at the time the putative father died. We are aware of no evidence which satisfies any of the required conditions in section 216(h)(3)(C) of the Act.

To establish his status as the surviving child of the deceased wage earner under section 216(h)(2)(A) of the Act, the child must show that he would be entitled to a child's share of the wage earner's intestate personal property under the law of the state in which the wage earner was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001.C.2.a. According to the evidence provided, the wage earner was a resident of Florida at the time of his death. There is no evidence suggesting that the wage earner's domicile was other than Florida. We conclude that the wage earner was domiciled in Florida at the time of his death and that Florida's law of intestate succession applies in determining the child's status as the lineal descendant of the wage earner for purposes of establishing a parent-child relationship under section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001.C.2.a.

For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his or her father and is one of the natural kindred of all members of the father's family if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void;

(b) The paternity of the father is established by an adjudication before or after the death of the father;

(c) The paternity of the father is acknowledged in writing by the father;

FLA. STAT. ANN. § 732.108(2) (2006). While Section 732.108 refers to children born "out of wedlock," the statute has been applied where a child born in wedlock attempted to establish paternity by someone not a part of the marriage, for inheritance purposes. Estate of R~, 520 So. 2d 99, 100 (Fla. Dist. Ct. App. 1988).

In this instance, the child does not qualify under subparagraphs (a) or (c) because the evidence does not support a finding that the wage earner married or attempted to marry the child's mother or that the wage earner acknowledged the child in writing. To qualify under subparagraph (b), paternity must be established by an adjudication before or after the death of the putative father. Although there has been no actual paternity adjudication under FLA. STAT. ANN. § 732.108(2)(b), pursuant to 20 C.F.R. § 404.355(b)(2), SSA adjudicators will not require such a determination but will decide paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. See Drake v. Apfel, No. CIV. 300CV 154OH, 2001 WL 705784 at *2 (N.D. Tex. June 18, 2001) (noting that 20 C.F.R. § 404.355(b)(2) removes the obligation to obtain an actual state court determination of paternity).

To be adjudicated a lineal descendant under Florida intestacy law, a child born out of wedlock must prove paternity by "clear, strong and unequivocal" evidence. Estate of R~, 520 So. 2d at 100. Florida courts have equated this standard with the clear and convincing evidentiary standard. See Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. Dist. Ct. App. 1991). The clear and convincing evidentiary standard is something more than a simple preponderance of the evidence standard and less than the beyond-a-reasonable-doubt standard applied in criminal cases. See In re Interest of D.J.S., 563 So. 2d 655, 661 (Fla. Dist. Ct. App. 1990). "Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S. v. Dep't. of Children and Families, 831 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re D~, 645 So. 2d 398, 404 (Fla. 1994)).

Here, the evidence of paternity consists primarily of a DNA test completed by DNA Diagnostics Center. Florida's paternity statutes distinguish between establishing paternity for child support purposes and for purposes of intestate succession. Under Florida's domestic relations law, Florida specifically permits scientific testing to determine paternity for purposes of support. See FLA. STAT. ANN. § 742.12 (2006). These tests must be conducted by a qualified laboratory. See FLA. STAT. ANN. § 742.12(1). The Agency has previously determined that DNA Diagnostics Center meets Florida's qualification requirements. See POMS PR 01115.011 Florida, Subpart C, PR 06-079.

Unlike Florida's domestic relations paternity statute, Florida's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See FLA. STAT. ANN. § 732.108(2). Further, we have found no Florida case law or statute specifically addressing the probative value of genetic testing of the putative father's relatives for purposes of establishing paternity for either support or intestacy purposes. As set forth in POMS PR 01115.011 Florida, Subpart C, PR 06-079, since Florida courts look to the law of other states for guidance in matters of first impression, we have looked to the court decisions of other states which have addressed the genetic testing of a putative father's relatives in intestacy proceedings. See Williams v. Estate of Pender, 738 So. 2d 453, 456 (Fla. Dist. Ct. App. 1999) (adopting the clear and convincing evidence standard of proof in an action for "equitable" or "virtual" adoption by looking at law review articles that indicated a majority of states used that standard); White v. White, 710 So. 2d 208, 209 (Fla. Dist. Ct. App. 1998) (in the absence of a dispositive Florida case, court found foreign court decisions persuasive). As further set forth in POMS PR 01115.011 Florida, Subpart C, PR 06-079, a review of court decisions in other states shows that evidence of the genetic tests of the putative father's relatives is, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. See also J.E. C~, Jr., Should the Legitimate Child Be Forced to Pay for the Sins of her Father? Sudwischer v. Estate of Hoffpauir, 53 La.L.Rev. 1675, 1714 (May 1993) (DNA fingerprinting may be utilized to effectively establish a "probability" of paternity by testing relatives of the unavailable parent); C.N. Le Ray, Implications of DNA Technology on Posthumous Paternity Determination: Deciding the Facts When Daddy Ca't Give His Opinion, 35 B.C. L.Rev. 747, 764-65 (1994) ("[I]f samples of the putative father's DNA are unavailable, it may be possible to reconstruct his DNA fingerprint by using samples from close relatives ... Thus, DNA testing provides, for the first time, the potential for accurate posthumous paternity identification."). Because the courts of Florida look to the decisions of other states on matters of first impression and because the legislative intent of the present FLA. STAT. ANN. § 732.108 was to be more liberal in allowing children to inherit from their natural fathers, it is our opinion that Florida courts would, at a minimum, consider genetic testing of the putative father's relatives along with other evidence on the issue of paternity. See In re Robertson, 520 So. 2d at 101-02 (comparing the predecessor statute to Section 732.108 and noting that the later statute is much broader than the one it replaced, being more liberal in allowing for inheritance by an illegitimate child and noting that one of the underlying purposes of the statute is to permit children to inherit from their natural fathers).

To satisfy Florida's clear and convincing evidence standard, the evidence must be sufficient to convince the trier of fact without hesitancy. R.S., 831 So. 2d at 1277. According to the evidence provided, the DNA test report based on samples from the putative father's parents and the child shows that the probability of the child being a grandchild of the putative grandparents is 99.9998 percent. Under Florida law, DNA testing based on a child and putative father showing a statistical probability of paternity of 95 percent or more creates a rebuttable presumption that the alleged father is the biological father of the child. FLA. STAT. ANN. § 742.12(4) (2006). While Florida law has not stated the necessary percentage when testing is based on a putative grandparent, a jurisdiction that has considered such evidence found clear and convincing evidence of paternity when considering the DNA test results and other evidence where the percentage of probability was less than that present here. See D~,2001 WL 705784 at *4 (DNA results showing a 98 percent probability of grandparentage, in addition to other evidence, established paternity by clear and convincing evidence). Further, "[w]here the genetic test uses DNA from both parents of the putative father, it is possible to determine paternity with practically the same certainty as if the putative father's DNA was available." POMS PR 01115.053 Washington, Subpart B, PR 05-015 (citing C. N. L~, supra, at 765). Neither the facts of this case nor any of the evidence presented leads us to believe further development is necessary to exclude the possibility that a male relative of the putative father may have fathered the child, and we do not recommend engaging in further development to exclude that possibility. See POMS GN 00306.065 C ("do not routinely develop to determine if a male relative of the [putative father] may have fathered the child claimant").

The fact that the child was born while her mother was married to someone other than the wage earner is a factor which weighs against a finding that the wage earner is the child's father. Florida courts have long held that children born during a marriage are presumed to be the product of the marriage, though this presumption is rebuttable. Bostwick v. Bostwick, 346 So. 2d 150, 151 (Fla. 1977); Blitch v. Blitch, 341 So. 2d 251, 252 (Fla. 1976); Smith v. Wise, 234 So. 2d 145, 146-47 (Fla. 1970). As noted in Baker v. Sullivan, 880 F.2d 319, 312 (11th Cir. 1989), "Florida courts have permitted actions by children born in wedlock to establish paternity by someone not a part of the marriage, for inheritance purposes" (citing Estate of R~, 520 So. 2d at 100; Williams v. Estate of Long, 338 So. 2d 563 (Fla. Dist. Ct. App. 1976); In re Estate of J~, 339 So. 2d 237 (Fla. Dist. Ct. App. 1976), cert. denied, 346 So. 2d 1249 (Fla.1977)). Clear and satisfactory evidence would be required to rebut the presumption. Gammon v. Cobb, 335 So. 2d 261, 264 (Fla. 1976); Eldridge v. Eldridge, 16 So. 2d 163, 164 (Fla. 1944). To be considered "clear and satisfactory," such evidence must do more than cast a strong suspicion or grave doubt on the paternity of the child and must clearly remove the presumption, although the proof need not be beyond a reasonable doubt. E~, 16 So.2d at 164. A Florida court has held that the presumption was rebutted where the mother stated that she had not lived with nor had sexual relations with her husband for seven years and had sexual relations at the time of the child's conception with only the defendant, testimony which was uncontradicted except by inadmissible hearsay. Hill v. Parks, 373 So. 2d 376 (Fla. Dist. Ct. App. 1979). A court also held that the presumption was overcome when all parties agreed that the husband was not the father of the child. Albert v. Albert, 415 So. 2d 818, 820 (Fla. 1982). Finally, of particular relevance here, DNA testing evidence has been accepted as conclusively establishing paternity so as to overcome the presumption. Fernandez v. Fernandez, 857 So. 2d 997, 999 (Fla. Dist. Ct. App. 2003). Thus, we believe the DNA evidence presented here would constitute clear and satisfactory evidence to rebut the marital presumption under Florida law. See Id.

The appearance of the mother's husband's name on the child's birth certificate also presents evidence inconsistent with a finding of paternity with respect to the putative father in this case. However, such evidence does not irrebuttably establish paternity. See Fernandez v. McKenney, 776 So. 2d 1118, 1121 n.4 (Fla. Dist. Ct. App. 2001) ("a father's signature on the back of a birth certificate has been held not to establish paternity") (citing Dept. of Revenue v. M.L.S., 756 So. 2d 125 (Fla. Dist. Ct. App. 2000)); Fernandez v. Fernandez, 857 So. 2d at 999 (despite husband's name on birth certificate, DNA evidence overcame presumption of legitimacy); see also Department of Revenue v. Ducant, __ So. 2d __, 2007 WL 983090 at *2 (Fla. Dist. Ct. App. Apr. 4, 2007) (DNA test disestablished paternity which had previously been established by affidavit of paternity). This is especially true here since the birth certificate does not contain an actual signature of the husband, but only his printed name. Thus, the birth certificate does not appear to qualify as a written acknowledgment of paternity by the mother's husband. CF Wakefield v. Apfel, 85 F. Supp. 2d 1275, 1281 (M.D. Fla. 1999) (under Florida law, wage earner established paternity where he actually signed the applicant's birth certificate and identified the applicant as his son in other writings; subsequent blood tests showing wage earner was not the father could not overcome the establishment of paternity); Holmen v. Holmen, 697 So. 2d 866, 868 (Fla. Dist. Ct. App. 1997) (decedent established paternity where he executed an affidavit acknowledging paternity, filed the affidavit in court and obtained an amended birth certificate; court declined to allow scientific evidence to rebut the establishment of paternity for intestate succession purposes). Further, in addition to the DNA test result discussed above, the evidence shows that the child's mother and her husband have been separated since prior to the child's birth, and there is no evidence that the husband provided any support for the child or maintained any sort of relationship with him. Nor is there any evidence that the husband challenges the putative father's paternity. Under these circumstances, based on all the evidence provided, it is our opinion that you would be justified in concluding that the child's status as the natural child of the putative father has been established by clear and convincing evidence under Florida law.

Even where the mother's husband is proven not to be the biological father, the presumption of legitimacy may only be overcome where there is a clear and compelling reason to do so based on the child's best interests. Department of Health Rehabilitative Services v. Privette, 617 So. 2d 305, 309 (Fla. 1993). One Florida court has applied P~ in an intestate succession case. Contino v. Estate of Contino, 714 So. 2d 1210, 1214 (Fla. Dist. Ct. App. 1998). Therefore, assuming an analysis under P~ is necessary here, we believe that in conducting such an analysis, a Florida court would find that it would be in the child's best interest to overcome the presumption of legitimacy in this instance. There is no evidence that the mother's husband seeks to maintain parental rights or that the husband has any relationship with the child whatsoever. To the contrary, the evidence presented indicates that the mother and her husband were separated for almost the entire duration of their marriage. See P~, 617 So. 2d at 309 (overcoming the presumption of legitimacy might be in the child's best interest where the child has been abandoned by the mother's husband and is in need of support); Fernandez v. Fernandez, 857 So. 2d at 999 (finding it in the child's best interests to overcome the presumption of legitimacy where, although the children were born of the marriage, "this was hardly an intact family in a practical sense."); cf .Callahan v. Department of Revenue, 800 So. 2d 679, 683 (Fla. Dist. Ct. App. 2001) (declining to order a paternity test in an effort to overcome the presumption where the married family was intact). Further, pertaining to the support of the child, it would be in the child's best interest to be entitled to inherit from the wage earner's intestate estate. See Estate of R~, 520 So. 2d at 102 (permitting child to overcome the presumption in order to inherit from child's natural father); C~, 714 So. 2d at 1214 (where the child was a child of decedent based on the presumption of legitimacy, the child's best interests would not be served by court-ordered DNA tests aimed at overcoming the presumption).

If the wage earner is determined to be the father of the child, you asked the date by which eligibility for CIB could be met. Under 20 C.F.R. § 404.621(a)(2) (2006), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See Act § 202(d)(1); 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a) (2006). Child status is one of the entitlement factors. See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1). If the child is the legitimate child of an insured individual and entitled to benefits, the period of entitlement will include the full retroactive period of the application (six months prior to the application or the child's birth, whichever occurs later). See POMS GN 00306.050 and GN 00306.085. Although legitimacy establishes the child's status as of birth, an out-of-wedlock child generally is not be entitled to retroactive benefits because the out-of-wedlock child must prove child status under state law, and benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055A.3. However, if the state law granting inheritance rights to an out-of-wedlock child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. See POMS GN 00306.050.

The Florida statute establishing inheritance rights for children born out-of-wedlock does not confer legitimacy. See FLA. STAT. ANN. § 732.108. However, inheritance rights are retroactive in Florida. See In Re Estate of O~, 397 So. 2d 420 (Fla. App. 1981) (court can determine an heir of a deceased at any time after death and such heir is accorded the same status as any other heir under Florida law). If you conclude that the child is the out-of-wedlock child of the wage earner, the law of Florida would accord him inheritance rights equivalent to those of a legitimate child. Therefore, his rights to retroactive benefits would be the same as those of a legitimate child (six months before the application or the child's birth, whichever occurs later).

Conclusion

We believe that the Florida courts would find that the child could inherit from the deceased wage earner as his child under Florida's intestacy statute. Therefore, we believe that the child qualifies as the wage earner's child for purposes of entitlement to CIB. Entitlement would begin six months prior to March 9, 2007, the date the child applied for benefits.

If you conclude that the child claimant is the deceased number holder's out-of-wedlock child, the laws of Florida would accord the child inheritance rights equivalent to those of a legitimate child. Therefore, his rights to retroactive benefits would be the same as those of a legitimate child (six months before the earliest application subject to reopening or the child's birth, whichever occurs later).

Question Presented

Where an illegitimate child presents acceptable DNA evidence to create a presumption of paternity under Florida Intestacy law, what is the effective date of the child's relationship to the father?

Short Answer

If you conclude that the child claimant is the deceased number holder's out-of-wedlock child, the law of Florida would accord the child inheritance rights equivalent to those of a legitimate child. Therefore, his rights to retroactive benefits would be the same as those of a legitimate child (six months before the earliest application subject to reopening or the child's birth, whichever occurs later).

BACKGROUND

The facts as presented are that Salvatore, the deceased number holder (NH), died on August 10, 2003, while domiciled in Florida. Subsequently, Salvatore (Claimant) was born on October, to Lindsay . Lindsay attempted to file a claim for child's benefits and lump sum death benefit on Claimant's behalf on NH's record in November 2003. While this attempt established a protective filing date, there is no record that this protective filing was ever closed out. On February 24, 2006, Lindsay filed another claim on behalf of Claimant and submitted DNA test results showing the probability of paternity of 99.99998%. Per POMS PR 0115.011, this DNA evidence appears acceptable and creates a presumption of paternity under Florida Intestacy law.

Authority

1. (a) 

   For purposes of survivor's benefits under section 202(d) the Social Security Act (Act), 42 U.S.C § 402(d), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act. If an insured individual who is a putative father dies before the child claimant's birth and never married the child's mother, the child claimant's status as the surviving child of the insured individual is governed by either section 216(h)(3)(C) or section 216(h)(2)(A) of the Act. To establish child status under section 216(h)(3)(C) of the Act, the child claimant must be the natural child of the insured individual and show one of the following: (1) the insured individual acknowledged in writing that the child claimant is his child; (2) a court decreed him to be the father of the child claimant; (3) he had been ordered to contribute to the support of the child claimant; or (4) he is the father and was living with or contributing to the support of the child claimant when he died. We are aware of no evidence which satisfies any of the required conditions in section 216(h)(3)(C) of the Act.

   To establish his status as the surviving child of the deceased NH under section 216(h)(2)(A) of the Act, Claimant must show that he would be entitled to a child's share of NH's intestate personal property under the law of the state in which NH was domiciled at the time of his death. According to the record, NH was domiciled in Florida at the time of his death. Accordingly, Florida's law of intestate succession is applicable in determining Claimant's status as the lineal descendant of NH for purposes of section 216(h)(2)(A) of the Act. For a person born out of wedlock to establish child status, Florida law provides as follows:

   For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his or her father and is one of the natural kindred of all members of the father's family if:

   (a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

   (b) The paternity of the father is established by an adjudication before or after the death of the father.

   (c) The paternity of the father is acknowledged in writing by the father.

   FLA. STAT. ANN. § 732.108(2). Claimant does not qualify under subparagraphs (a) or (c) because the evidence does not support a finding that NH married or attempted to marry Claimant's mother or that NH acknowledged Claimant in writing. To qualify under subparagraph (b), paternity must be established by an adjudication before or after the death of the father.

   Although Claimant filed a Petition to Establish Paternity with a Florida Circuit Court, it does not appear that there had been an actual paternity adjudication under FLA. STAT. ANN. §732.108(2)(b). As a result, SSA adjudicators apply Florida intestacy law as follows:

   If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

   20 C.F.R. § 404.355(b)(2) (2006); See Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

ANALYSIS

If NH is determined to be Claimant's father, you asked whether the child claimant is entitled to retroactive benefits. Under 20 C.F.R. § 404.621(a)(2) (2006), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See § 202(d)(1) of the Act; 20 C.F.R. § 404.352(a) (2006). Child status is one of the entitlement factors. See § 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1) (2006). If the child applicant is the legitimate child of an insured individual and entitled to benefits, the period of entitlement will include the full retroactive period of the application (six months prior to the application or the child's birth, whichever occurs later). See POMS GN 00306.050 and GN 00306.085. Although legitimacy establishes the child's status as of birth, an out-of-wedlock child generally is not be entitled to retroactive benefits because the out-of-wedlock child must prove child status under state law and benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055A.3. However, if the state law granting inheritance rights to an out-of-wedlock child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. See POMS GN 00306.050.

The Florida statute establishing inheritance rights for children born out-of-wedlock does not confer legitimacy. See FLA. STAT. ANN. § 732.108. However, inheritance rights are retroactive in Florida. See In Re Estate of O~, 397 So. 2d 420 (Fla. App. 1981) (court can determine an heir of a deceased at any time after death and such heir is accorded the same status as any other heir under Florida law). If you conclude that Claimant is NH's out-of-wedlock child, the law of Florida would accord him inheritance rights equivalent to those of a legitimate child. Therefore, his rights to retroactive benefits would be the same as those of a legitimate child (six months before the earliest application subject to reopening or the child's birth, whichever occurs later).

Mary A. Sloan

Regional Chief Counsel

By:__________________

Joseph P. Palermo, III

Assistant Regional Counsel

In Florida, DNA testing performed by an accredited laboratory on samples from the claimant and a child of the deceased number holder from another relationship and showing a 99.8% probability that the two children share half siblingship meets the clear and convincing standard to establish a parent-child relationship between the claimant and the deceased number holder. Although this does not legitimate the child, Florida law does provide illegitimate children the same retroactive inheritance rights as those born within a marital relationship. Entitlement to benefits can be retroactive.

In considering this child's claim for survivor's benefits, you asked several questions related to the evidentiary value of genetic testing performed by DNA Diagnostics Center on samples from relatives of a deceased number holder (NH) in Florida and the retroactive or prospective payment of child's benefits. Specifically, you asked (1) whether the laboratory meets the accreditation requirements for testing laboratories under Florida law per Program Operations Manual System (POMS) GN 00306.065; (2) whether DNA tests of the alleged father's other child can be used to establish relationship to the NH under Florida intestacy law and, if so, would the child's status be that of a legitimated child or illegitimate child with inheritance rights; and (3) if relationship is met as an illegitimate child with inheritance rights, can the child be paid retroactively or prospectively from the date of the DNA.

Having considered the evidence presented, and the applicable federal and state law, it is our opinion that (1) the DNA Diagnostics Center satisfies Florida accreditation requirements for testing laboratories; (2) the DNA tests based on samples from one of NH's other children and the child claimant, can satisfy the clear and convincing evidentiary standard for proving paternity for inheritance purposes under Florida law; and (3) the child claimant, to the extent she qualifies as the natural out-of-wedlock child of the NH, would be entitled to the same inheritance rights as a legitimate child under Florida law and qualify for benefits for the full retroactive reach of her application (that is, six months before her application in November 2005).

FACTS

NH died domiciled in Florida on December 8, 1989. The child claimant was born on June. There is no evidence that the NH and the child claimant's mother, Melanie, were ever married. There is no evidence that the NH was living with or providing support to the child claimant's mother at the time of the NH's death. On November 29, 2005, the child claimant's maternal grandmother applied for benefits on the child claimant's behalf on the earnings record of the deceased NH. The birth certificate of the child claimant indicates she was born in Texas; however, the birth certificate provides no indication as to the identity of her father. In an effort to determine if the child claimant was related to the NH, DNA samples were taken from the child claimant and one of NH's children. The results of the DNA test conducted by the DNA Diagnostics Center were reported on October 21, 2005. According to the DNA test report, the probability that the child claimant is related to the NH's other child is 99.8%. The likelihood that the child claimant and the NH's other child share the same biological mother or father is 737 to 1. The children do not share the same mother.

Statutory Authority

For purposes of child's survivor's benefits under the Social Security Act (Act), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e). If a putative father (here, the NH) dies before the child claimant's birth and the NH never married the child's mother, the child claimant's status as the surviving child of the NH is governed by either section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status under section 216(h)(3)(C) of the Act, the child claimant must show one of the following: (1) that the NH acknowledged in writing that the child claimant is his daughter, (2) that a court decreed NH to be the father of the child claimant, (3) that the NH had been ordered to contribute to the support of the child claimant or (4) that the NH is the father and was living with or contributing to the support of the child claimant at the time the NH died. We are aware of no evidence which satisfies any of the required conditions in section 216(h)(3)(C) of the Act.

To establish her status as the surviving child of the deceased NH under section 216(h)(2)(A) of the Act, the child claimant must show that she would be entitled to a child's share of the NH's intestate personal property under the law of the state in which the NH was domiciled at the time of his death. According to the record, the NH was a resident of Florida at the time of his death. There is no evidence suggesting that the NH's domicile was other than Florida. We conclude the NH was domiciled in Florida at the time of his death and that Florida's law of intestate succession is applicable in determining the child claimant's status as the lineal descendant of the NH for purposes of section 216(h)(2)(A) of the Act. For a person born out of wedlock to establish child status, Florida law provides as follows:

For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his or her father and is one of the natural kindred of all members of the father's family if:

1. (a) 

   The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

2. (b) 

   The paternity of the father is established by an adjudication before or after the death of the father.

3. (c) 

   The paternity of the father is acknowledged in writing by the father.

FLA. STAT. ANN. § 732.108(2). The child claimant does not qualify under subparagraphs (a) or (c) because the evidence does not support a finding that the NH married or attempted to marry the child claimant's mother or that the NH acknowledged the child claimant in writing. To qualify under subparagraph (b), paternity must be established by an adjudication before or after the death of the father. Although there has been no actual paternity adjudication under FLA. STAT. ANN. § 732.108(2)(b), SSA adjudicators apply Florida intestacy law under these circumstances as follows:

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2)(2005); See Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

ANALYSIS

To be adjudicated a lineal descendant under Florida intestacy law, a child born out of wedlock must prove paternity by clear and convincing evidence. See Breedlove v. Estate of Breedlove, 586 So. 2d 466 (Fla. App. 1991). Clear and convincing is something "more than a simple preponderance" and less than the beyond-a-reasonable-doubt standard applied in criminal cases. See In re Interest of D.J.S., 563 So.2d 655, 661 (Fla. App. 1990). "Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S. v. Department of Children and Families, 831 So.2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re D~, 645 So.2d 398, 404 (Fla.1994)).

In the present matter, the evidence offered to support the child claimant's allegation that she is the natural child of the deceased NH consists of a DNA test.

Florida's paternity statutes distinguish between establishing paternity for child support purposes and for purposes of intestate succession. Under Florida's domestic relations law, Florida specifically permits scientific testing to determine paternity for purposes of support.

See FLA. STAT. ANN. § 742.12. Under this statute, a court may require the child, mother and the alleged father to submit to scientific tests that are generally acceptable within the scientific community to show the probability of paternity. These tests must be conducted by a qualified laboratory. See FLA. STAT. ANN. § 742.12(1). As stated in a prior memorandum, DNA Diagnostics Center meets Florida's requirements. See Memorandum from Regional Chief Counsel, Atlanta, to Ass't Reg. Comm.-MOS, Atlanta, Genetic Testing, Florida, at 4 (October 11, 2005), copy attached.

Unlike Florida's domestic relations paternity statute, Florida's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See FLA. STAT. ANN. § 732.108(2). We have found no Florida case law or statute specifically addressing the probative value of genetic testing of the putative father's relatives for purposes of establishing paternity for either support or intestacy purposes. Because Florida courts look to the law of other states for guidance in matters of first impression, we have looked to the court decisions of other states which have addressed the genetic testing of a putative father's relatives in intestacy proceedings. See Williams v. Estate of Pender, 738 So.2d 453, 456 (Fla. Dist. Ct. App. 1999) (adopts the clear and convincing evidence standard of proof in an action for "equitable" or "virtual" adoption by looking at law review articles that indicated a majority of states used that standard); White v. White, 710 So.2d 208, 209 (Fla. Dist. Ct. App. 1998) (in the absence of a dispositive Florida case, court found foreign court decisions persuasive).

Our review of the court decisions in other states shows that the genetic tests of the putative father's relatives (including a known child) is, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. See e.g., In the Matter of the Application of Ruth S~, 768 N.Y.S.2d 272 (N.Y. 2003) (court stated DNA testing of a child's putative grandparents, could be used to satisfy the clear and convincing evidence standard for proving paternity); In the Matter of the Estate of Robert N~, 748 N.Y.S.2d 654 (N.Y. 2002) (DNA testing on the putative father's twin, coupled with other evidence constituted clear and convincing evidence of paternity); Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (district court concludes DNA testing of the putative father's mother coupled with other evidence supported finding of clear and convincing evidence of paternity); In the Matter of the Estate of S~, 612 N.Y.S.2d 756 (N.Y. 1994) (court found DNA testing of a child's putative grandparents could provide clear and convincing evidence of paternity); M.A. v. The Estate of A.C., 643 A.2d 1047 (N.J. Super. 1993) (court ordered the decedent's siblings and mother to submit to DNA testing for paternity purposes in an intestacy proceeding because denying the tests could deprive the child of evidence necessary to establish his right to equal treatment under the law); Tipps v. Metropolitan Life Insurance Company, 768 F. Supp. 577, 580 (S.D. Tex. 1991) (DNA testing of deceased putative father's parents, legitimate son, and putative daughter); In re Estate of R~, 583 A.2d 782, 784 (N.J.Super 1990) (court has "inherent power" to order collateral relatives of decedent to submit to blood tests to determine paternity of non-marital child) (cited in In re Estate of M~, 868 A.2d 680, 685 n.4 (Vt. 2004)).

Because the courts of Florida look to the decisions of other states on matters of first impression and because the legislative intent of the present FLA. STAT. ANN. § 732.108 was to be more liberal in allowing children born out-of wedlock to inherit from their natural fathers, it is our opinion that Florida courts would, at a minimum, consider genetic testing of the putative father's relatives along with other evidence on the issue of paternity. See In re R~, 520 So. 2d 99, 101-102 (Fla. Dist. Ct. App. 1988) (compares the predecessor statute to Section 732.108 and notes that the "later statute is much broader than the one it replaced, being more liberal in allowing for inheritance by an illegitimate child" and noting that "one of the underlying purposes of the statute is to permit children to inherit from their natural fathers").

To satisfy Florida's clear and convincing evidence standard, the evidence must be "sufficient to convince the trier of fact without hesitancy." R.S., 831 So. 2d at 1277. According to the evidence provided to us, the DNA test report based on samples from one of NH's other children and the child claimant shows that the probability the child claimant and NH's other child are half-siblings is 99.8% and the likelihood that they share a biological mother or father is 737 to 1. Since the children do not share the same mother, this statistic indicates a 737 to 1 chance that they share the same father. Under these circumstances, it is not necessary to exclude the possibility that a male relative of the NH may have fathered the child claimant, and we do not recommend engaging in further development to exclude that possibility. See POMS GN 00306.065 C. We are aware of no evidence showing the NH is not the father of the child applicant. Under these circumstances, it is our opinion that you would be justified in concluding that the child claimant's status as the natural child of the NH has been established by clear and convincing evidence under Florida law.

If NH is determined to be the father of the child claimant, you asked whether the child claimant is entitled to retroactive benefits. Under 20 C.F.R. § 404.621(a)(2) (2005), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See § 202(d)(1) of the Act; 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a). Child status is one of the entitlement factors. See § 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). If the child applicant is the legitimate child of an insured individual and entitled to benefits, the period of entitlement will include the full retroactive period of the application (six months prior to the application or the child's birth, whichever occurs later). See POMS GN 00306.050 and GN 00306.085. Although legitimacy establishes the child's status as of birth, an out-of-wedlock child generally is not be entitled to retroactive benefits because the out-of-wedlock child must prove child status under state law and benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055A.3. However, if the state law granting inheritance rights to an out-of-wedlock child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. See POMS GN 00306.050.

The Florida statute establishing inheritance rights for children born out-of-wedlock does not confer legitimacy. See FLA. STAT. ANN. § 732.108. However, inheritance rights are retroactive in Florida. See In Re Estate of O~, 397 So. 2d 420 (Fla. App. 1981) (court can determine an heir of a deceased at any time after death and such heir is accorded the same status as any other heir under Florida law). If you conclude that the child claimant is the out-of-wedlock child of the NH, the law of Florida would accord her inheritance rights equivalent to those of a legitimate child. Therefore, her rights to retroactive benefits would be the same as those of a legitimate child beginning six months prior to November 29, 2005, the date of her application.

Mary A. Slaon

Regional Chief Counsel

By:__________________

Jennifer Patel

Assistant Regional Counsel

The Florida statute establishing inheritance rights for out-of-wedlock children does not confer legitimacy. However, a child whose relationship to the number holder is established under the statute is accorded the inheritance rights as a legitimate child.

Therefore, all rights are retroactive to the child's date of birth.

QUESTIONS

1. (a) 

   What is the effective date of Cierica's relationship to Darren?

2. (b) 

   Can Cierica be paid retroactively to April 2004 on the record of Darren ?

BACKGROUND

Darren (the wage earner) died on April 8, 2005. He was a resident of Florida at the time of his death. You have determined that Cierica (claimant) is the wage earner's illegitimate child. Cierica was born on November . The claimant's mother provided written statements prepared in May 2005 establishing the paternity of the wage earner. These statements were submitted with the June 2, 2005 application for child's insurance benefits. You have determined that the statements were sufficient to satisfy the acknowledgement requirements under Florida law. The only question remaining is whether the claimant's eligibility should begin with the date of the death of the wage earner or with the earliest date that sufficient evidence of paternity was provided.

DISCUSSION

Under 20 C.F.R. § 404.621(a)(2) (2005), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See § 202(d)(1) of the Act; 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a). Child status is one of the entitlement factors. See § 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). If the child applicant is the legitimate child of an insured individual and entitled to benefits, the period of entitlement will include the full retroactive period of the application (six months prior to the application or the child's birth, whichever occurs later). See POMS GN 00306.050 and GN 00306.085. Although legitimacy establishes the child's status as of birth, an illegitimate child generally is not be entitled to retroactive benefits because the illegitimate child must prove child status under state law and benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055A.3. However, if the state law granting inheritance rights to an illegitimate child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. See POMS GN 00306.050.

The Florida statute establishing inheritance rights for children born out-of-wedlock does not confer legitimacy. See FLA. STAT. ANN. § 732.108. However, inheritance rights are retroactive in Florida. See In Re Estate of O~, 397 So. 2d 420 (Fla. App. 1981) (court can determine an heir of a deceased at any time after death and such heir is accorded the same status as any other heir under Florida law). Since you have you concluded that the Claimant is the illegitimate child of the wage earner, Florida would accord her inheritance rights equivalent to those of a legitimate child. Therefore her rights to retroactive benefits would be the same as those of a legitimate child (six months before the application or the child's birth, whichever occurs later).

CONCLUSION

In this case, claimant's child status would be effective as of the date the wage earner died.

Mary A. Sloan

Regional Chief Counsel

Sharon F. Young

Assistant Regional Counsel