TN 2 (08-05)

PR 01120.041 Oregon

A. PR 05-037 Date of Establishment of a Parent-Child Relationship by DNA Results Number Holder - Wesley J. M~, SSN ~

DATE: November 30, 2004

1. SYLLABUS

Under Oregon law, a child may inherit under State law if he is the issue of the decedent. DNA test concluding that there is a 99.99% probability that the number holder is the father of both children legitimate the children under Oregon law. A child in Oregon who is legitimated after birth is considered to be legitimate from birth.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for our legal opinion on the following question: When does the parent-child relationship begin in the State of Oregon where paternity was established by a DNA test?

SHORT ANSWER

After consideration of the relevant facts and law, we conclude that the parent-child relationship existed at the date of birth.

FACTUAL BACKGROUND

Wesley J. M~ died on July 19, 2004. On August 28, 2004, Sonya K. L~ filed for survivor benefits for her children, Landon M. L~ and Wesleigh J. M~. DNA testing conducted on September 27, 2004, showed that there is a 99.99% probability that Mr. M~ is the father of both children.

DISCUSSION

A. Statutory and Regulatory Background

A "child" of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if he or she:

(1) is the insured's child, based upon a relationship described in 20 C.F.R. sections 404.355 through 404.359;

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; and

(5) was dependent upon the insured individual at the time of the insured's death.

See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Here, Landon and Wesleigh are under the age of 18, are not married, and have applied for benefits. Thus, the only issues are whether they meet the first and fifth requirements above. If they meet the first requirement, they are considered dependent upon Mr. M~, satisfying the fifth requirement. See 20 C.F.R. § 404.361.

Landon and Wesleigh can show that they are the children of the deceased wage earner (the first requirement) in one of the following four ways:

they could inherit as Mr. M~'s natural child under state intestacy law. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1);

they are Mr. M~'s natural children and their mother, Sonya L~, and Mr. M~ went through a ceremony, which would have resulted in a valid marriage between them except for a "legal impediment." See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2);

before his death, Mr. M~ acknowledged in writing that Landon and Wesleigh are his children; Mr. M~ was decreed by a court to be the father; or he was ordered by a court to contribute to Landon and Wesleigh's support because they are his children. See Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3);

Mr. M~ is shown by evidence satisfactory to the Commissioner of Social Security to have been the children's father, and he was living with or contributing to Landon and Wesleigh's support at the time of his death. See Social Security Act § 216(h)(3)(c)(ii), 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4).