You have requested an opinion on whether DNA testing of genetic material provided
by the deceased wage earner's parents is sufficient to establish paternity under Illinois
law so that Leticia N. S~ (Leticia) can be considered the wage earner's child for
child's insurance benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(2). For the reasons stated herein,
we advise that you undertake additional development to eliminate any brother of the
wage earner, Robert R. O~ (Robert), as possible father of Leticia. If Robert had no
brothers, or if he had brothers but the possibility that one of them fathered Leticia
can be eliminated, we believe that, based on the DNA test results and the additional
information you provided, an Illinois court would find Robert was Leticia's father.
In 1987, Robert began dating Lorie B. S~, a.k.a. Lorie C~ (Lorie). On July 11, 1990,
Leticia was born. Leticia's birth certificate does not identify a father. The couple
dated until 1991. On October 9, 2001, Robert died without marrying Lorie. At the time
of his death, Robert was domiciled in Illinois.
On October 21, 2001, Lorie filed an application for surviving child's benefits on
Leticia's behalf. In April of 2002, Robert's parents, Lorie, and Leticia were tested
by Genetica DNA Laboratories, Inc. The resulting DNA analysis did not exclude Robert's
parents as paternal grandparents of Leticia. The analyst, Elizabeth P~, M.D., Ph.D.,
certified that the estimated probability of grandparentage by Robert's parents, as
compared to an untested, unrelated couple of the North American Hispanic population,
On May 1, 2002, Robert's mother, Beatrice O~ (Beatrice) wrote a letter stating that
she and her husband recognized Leticia as Robert's daughter and that they sent Leticia
clothing every month.
If the wage earner is deceased, the Social Security Administration (SSA) applies the
intestacy laws for the state where the deceased wage earner had a permanent home at
the time of death. 20 C.F.R. § 404.355(b)(1). Here, Robert was domiciled in Illinois
at the time of his death. Therefore, Leticia can be eligible for surviving child's
benefits on Robert's account only if she could inherit Robert's property as his child
under Illinois law governing intestate succession. 42 U.S.C. § 416(h)(2)(A). Illinois
intestacy law requires illegitimate children who seek to inherit from their deceased
fathers to provide authenticated copies of proper court orders of paternity. 755 ILCS
5/2-2(h). However, under Social Security regulations, the child is not required to
obtain an adjudication of paternity. 20 C.F.R. § 404.355(b)(2). Rather, the SSA adjudicator
determines paternity using the state's standard. Under Illinois law, Leticia would
have to prove paternity by “clear and convincing evidence.” 755 ILCS 5/2-2(h).
The Illinois Parentage Act of 1984 makes DNA testing of the alleged father admissible
to establish paternity. 750 ILCS 45/11. If the test shows that the alleged father
is not excluded and that the combined paternity index is at least 500 to 1, the court
presumes paternity. 750 ILCS 45/11(f)(4). This presumption may be rebutted by clear
and convincing evidence. Id. Absent a presumption of paternity, Illinois law requires clear and convincing evidence
of paternity. 755 ILCS 5/2-2(h).
However, the Illinois Parentage Act of 1984 does not address use of grandparent DNA
to establish the presumption of paternity. Although such grandparent DNA test results
may constitute evidence Illinois courts would consider when determining paternity,
they do not, standing alone, establish that Leticia is Robert's natural child. In
the Matter of the Estate of Lukas, 508 N.E.2d 368, 372 (1st Dist. 1987) (at hearing, expert testimony was presented
regarding use of paternal grandmother's blood test results to establish her decedent
son was child's father). Although probative because of the high probability percentage,
the results demonstrate only that Leticia is biologically linked to the alleged paternal
grandparents' family. They do not rule out the possibility that another male member
of Robert's family, such as a brother, could be the natural father. See Memorandum from OGC Region V to SSA-MOS, Does Posthumous Genetic Testing Based on
the DNA of the Deceased Numberholder's Relatives Establish Paternity Under Michigan
State Law?, Jeffrey W~, page 5, (May 25, 2000) (explaining that DNA testing of paternal
relatives only demonstrates child's biological link to putative paternal family, but
it does not rule out possibility that one of deceased's male relatives fathered child).
Here, the claim is bolstered somewhat by Robert and Lorie's four-year relationship
and Beatrice's statement that she and her husband recognized Robert as Leticia's father.
However, there is also evidence that detracts from that conclusion, such as the lack
of Robert's identification as father on Leticia's birth certificate. Moreover, no
evidence was presented that Robert ever acknowledged paternity or contributed to the
child's support. Taking such factors into consideration, in order to meet the “clear and convincing” legal standard to prove paternity, it is advisable that additional evidence be collected,
such as statements from Robert's brother(s), if any, and Lorie, ruling out such brother(s)
as Leticia's father.
You also asked, if paternity was established, what would be the appropriate date of
entitlement. For purposes of entitlement to surviving child's benefits, Leticia would
be considered Robert's child for inheritance purposes as of the date of his death.
See Warren-Boynton State Bank v. Wallbaum, 528 N.E.2d 640, 643 (Ill. 1988) (stating that “heirs” in the technical sense of the word are always determined at the time of the testator's
Under Illinois law, it is unlikely the “clear and convincing” evidence standard proving paternity has been met. Therefore, it is recommended that
additional documentation be obtained to rule out any likelihood that a brother of
Robert fathered Leticia. If additional evidence eliminates the possibility that a
brother is Leticia's father, it is likely that an Illinois court would then determine
that Robert was Leticia's father. Therefore, it is our opinion that Leticia can be
considered Robert's child for the purpose of receiving surviving child's benefits
on Robert's account if adequate non-genetic evidence, as described above, is obtained.
Thomas W. C~
Regional Chief Counsel
Assistant Regional Counsel