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.
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.
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
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).
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.