PR 01120.028 Missouri

A. PR 01-147 Retroactivity of Entitlement of Illegitimate Child, Determined to Be Wage Earner's Natural Child After His death, to Child's Benefits on Deceased Wage Earner's Earnings Record; Todd H. P~, SSN: ~

DATE: February 16, 2001

1. SYLLABUS

Under Missouri law, if paternity is established, then the child is entitled to inherit from his father retroactive to the father's death.

2. OPINION

You have asked us whether an illegitimate child who was determined by you to be entitled to surviving child's benefits on the earnings record of the deceased wage earner, is entitled to benefits retroactive to the date of the wage earner's death under Social Security Regulations and Missouri Statutes. For the reasons discussed below, we believe that the child is entitled to benefits retroactive to the wage earner's death.

Factual Background

The materials you sent with your request indicate that on August 13, 2000, Todd H. P~ died domiciled in the state of Missouri. On November 13, 2000, the SSA Field Office in Nevada, Missouri, received a claim for surviving child's benefits and the lump sum death payment (LSDP) from Tammie M. F~ on behalf of Ezekiel D.R. F~, as the surviving child of Todd H. P~. The child was born June 20, 2000. The mother and the deceased wage earner were never married, nor did the deceased formally acknowledge paternity prior to his death. Submitted with the claim for benefits was a notarized laboratory report, dated October 31, 2000, from the Paternity Testing Corporation, indicating that the probability that Todd H. P~ was Ezekiel D.R. F~'s father was 99.995 percent (with a prior probability=0.5), based on DNA testing. Tammie F~ indicated on her Child Relationship Statement that Child Support Enforcement asked for the paternity test prior to the wage earner's death, but the test results were not completed until after the wage earner's death. We noted that the sample of the wage earner's blood for the DNA testing was taken on the date of his death. On February 13, 2001, we spoke with Richard H~, District Manager of the Nevada Field Office, and he informed us that the father was not cooperative in taking the blood test, but upon his death, one of his relatives apparently gave consent for the procedure. Ms. F~ also indicated in her Child Relationship Statement that Todd P~ had acknowledged paternity orally to Sharron C~ of Butler, Missouri, however, Mr. H~ informed us that no formal statement had been taken from Ms. C~. After conferring with the Regional Office, the Nevada Field Office determined that Ezekiel F~ met the test of establishing paternity after the wage earner's death and awarded benefits pursuant to the Programs Operations Manual System (POMS) GN 00306.080 (Missouri). The claim was processed with a date of entitlement of October 2000, the date of the laboratory report. The Nevada Field Office is questioning whether benefits should be granted retroactive to the date of the wage earner's death in August 2000.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child's insurance benefits. This section provides that every child (as defined in section 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who is "legitimate" or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits.

Social Security Act § 202(d)(3).

An "illegitimate" child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured's death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, prior to his death: (a) acknowledged in writing the child as his child; (b) been decreed by a court to be the child's parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Section 202(d)(3) of the Act provides that any child who meets the tests in sections 216(h)(2) or (h)(3) "shall be deemed to be the legitimate child of such individual."

In this case, none of the above requirements can be met by Ezekiel. The deceased wage earner was not living with or contributing to Ezekiel's support at the time of his death. Tammie F~ and the deceased wage earner were never married. The deceased wage earner did not acknowledge in writing Ezekiel as his child, nor was he decreed by a court to be his parent or ordered to pay support.

An "illegitimate" child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could inherit personal property under "such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual . . . was domiciled at the time of his death . . . ." Id. An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). In this case, you have indicated that the deceased wage earner was domiciled in Missouri; therefore, Missouri intestacy law applies.

Missouri statutes provide in relevant part:

[A] person born out of wedlock is a child of the mother. That person is also a child of the father, if either of the following occur: (1) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; (2) The paternity is established by an adjudication before the death of the father, or is established thereafter by clear and convincing proof . . .

Mo. Ann. Stat. § 474.060 (West, WESTLAW through 2000).

The Eighth Circuit has adopted the Missouri Court of Appeals definition of "clear and convincing" proof as that "which 'instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,' and clearly convinces the factfinder that the evidence is true." Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992) (citing Sherrill for Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987) (quoting In re Michael O'Brien, 600 S.W.2d 695, 697 (Mo. Ct. App. 1980)). See also Jones v. Chater, 101 F.3d 509, 511 (7th Cir. 1996) (Missouri's intestacy statute requires clear and convincing evidence of paternity); State of Missouri v. Tuckness, 949 S.W.2d 651 (Mo. Ct. App. 1997) ("The clear and convincing standard refers to evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder's mind is left with an abiding conviction that the evidence is true.") (citing In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo. Ct. App. 1995)). Other courts have defined clear, convincing, and cogent evidence as that which admits no reasonable doubt. Eldridge, 980 F.2d at 500 (citations omitted).

The courts have provided some direction on what factors satisfy the clear and convincing standard of proof under Missouri law. In Imani on Behalf of Hayes v. Heckler, 797 F.2d 508 (7th Cir. 1986), the Seventh Circuit Court of Appeals found that Plaintiff did not establish by clear and convincing evidence under Missouri's laws of intestate succession that the wage earner was the father of her illegitimate child. Id. at 511-12. In Imani, Plaintiff had informed the insured that she might be pregnant two weeks before his death but she was unable to inform him that she was in fact pregnant before he died. She alleged that he nonetheless "knew" that he was the father. She offered evidence concerning the statements and actions of third parties as well as photographic evidence to support her claim. An administrative law judge found that she had not established by clear and convincing evidence that the insured was the father of the child.

The decision was upheld by the Seventh Circuit Court of Appeals. Id.

In Sherrill, 835 F.2d at 168-69, the Eighth Circuit Court of Appeals held that the Plaintiff had failed under Missouri's intestacy statute to establish by clear and convincing evidence that the deceased wage earner was the father of her child. The Plaintiff did not name a father on the child's birth certificate.

She had alleged that the wage earner had brought money, toys, and food for the child but she had kept no records. She alleged that the deceased wage earner had taken out an insurance policy for the child but it was never produced and she stated that she did not know whether she or the child was the designated beneficiary.

Inconsistently, in a signed statement taken in conjunction with her application for benefits, she stated that the deceased wage earner had never taken out an insurance policy on the child. The deceased wage earner's widow testified that she had been married to him for three years and they had two children. She stated that she had no knowledge of the child he allegedly fathered, and that he had never made any support payments to the child. The evidence included a notarized statement by the deceased wage earner's mother stating the he had acknowledged that the child was his and had brought the child to her home regularly. She stated that she did not know why she had not mentioned the child until twelve years after her son's death. Id. at 167. The court agreed with an administrative law judge that there was not clear and convincing evidence of paternity as required by the Missouri intestacy statute. There was no evidence proving that the deceased wage earner was not the child's father, but neither was there "clear and convincing evidence" showing that he was the father. Testimony at the hearing was inconsistent with documentary evidence, there were vague allegations twelve years after the death of the wage earner, and there was a failure to produce records and vital documents which cast Plaintiff's testimony in a "particularly doubtful light." Id. at 168.

In Robbie v. Gerstner, 733 S.W.2d 859 (Mo. Ct. App. 1987), a Missouri Appeals Court did find clear and convincing proof of paternity based on the testimony of the party seeking the declaration of paternity, the testimony of three disinterested witnesses, and comparison photographs. Id. The children were receiving Social Security payments on the deceased's account after his death. Id. at 859-60. The court found the evidence of paternity "consistent and overwhelming," and allowed the children to inherit from the estate of the decedent's mother. Id. at 860.

In re Carl Nocita, 914 S.W.2d 358, 359 (Mo. banc 1996) the Missouri Supreme Court held that both the Uniform Parentage Act (UPA) and the Probate Code, which includes Mo. Ann. Stat. § 474.060, are both means of establishing paternity for probate. Id at 359. In Nocita, Carl N~ died intestate, survived by one sister, two nieces, two nephews, and Anthony M~. Id. After N~'s death, using the provisions of the probate code, Mr. M~ was found to be N~'s sole child and to the entire estate. Id. Therefore, the Missouri Supreme Court has declared that an illegitimate child can establish paternity after his father's death under the probate code. Additionally, the UPA allows a presumption of paternity in cases where there has been a marriage or attempted marriage between the alleged father and mother; if the alleged father has admitted paternity in a filed writing, if he was named on the birth certificate with his consent, or if he was ordered to pay child support; or if a blood test showed a ninety-eight percent or higher probability of paternity. See Mo. Ann. Stat. § 210.822.1.

We believe that Ezekiel has established paternity under the UPA and by clear and convincing proof under Missouri's intestacy statute, as the laboratory report that established a 99.995 percent probability of paternity, is proof that "instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,' and clearly convinces the factfinder the evidence is true." Eldridge, 980 F.2d at 500; Sherrill, 835 F.2d at 168; In re Michael O'Brien, 600 S.W.2d at 697.

You request guidance on whether Ezekiel is entitled to child's benefits retroactive to the date of his father's death. The Act provides that a child of an individual who dies fully or currently insured shall be entitled to child's insurance benefits for each month, beginning with the first month in which such child meets the criteria specified in Section 202(d)(1). Social Security Act § 202(d)(1)(i). Pursuant to Missouri case law, we believe that Ezekiel is entitled to benefits retroactive to his father's death. If paternity is established, then a child is entitled to inherit from his father under Missouri intestacy law.

Nocita, 914 S.W.2d at 359. Therefore, Ezekiel met all the requirements for entitlement to benefits in August, 2000. Social Security Act § 202(d)(1)(i). Moreover, Ezekiel's application was filed on November 13, 2000, which is within the six month period of retroactively during which benefits can be paid. See 20 C.F.R. § 404.621(a)(1)(ii) (2000). Finally, Ezekiel would be entitled to the LSDP, as the evidence indicates that the deceased wage earner had no surviving spouse. Social Security Act § 202(i)(2).

In conclusion, as Ezekiel has established by clear and convincing evidence that he is the natural son of the deceased wage earner, he is entitled to child's benefits retroactive to the date of the wage earner's death and, in this case, to the LSDP.


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PR 01120.028 - Missouri - 09/26/2012
Batch run: 09/26/2012
Rev:09/26/2012