You have asked whether T~ would be considered the child of NH C~ under Utah intestacy
laws for purposes of establishing eligibility for survivor’s benefits based on a report
of genetic testing. If so, you have also asked what date to use for eligibility since
genetic testing occurred after the NH’s death.
To inherit under Utah law, a child must establish paternity by clear and convincing
evidence. We believe the evidence provided is sufficient to satisfy that standard
(1) the report of genetic testing appears to satisfy certain statutory requirements
for admissibility, and it shows a probability of relatedness as full siblings of over
99% between T~ and K~, who was born during the marriage of the NH to T~’s mother;
(2) T~’s Utah birth certificate lists the NH as his father and, when a child is born
to an unmarried mother, the NH’s name could have only been included by either a court
adjudication or a voluntary acknowledgment of paternity. Lastly, under Utah law, the
determination of the father-child relationship relates back to the child’s date of
The NH was domiciled in Utah when he died (also in Utah) in December 2016. He was
divorced at the time of his death. The NH reported a previous marriage to D~, which
lasted from June 1995 to July 1998. K~ was born during the marriage in March 1998;
K~’s birth certificate names D~ as his mother and the NH as his father. When the NH
applied for DIB in 2005, he identified K~ as his child.
The claimant, T~, was born in June 2007, after the couple’s divorce and after the
NH’s 2005 application for DIB. T~’s Utah birth certificate names D~ as his mother
and the NH as his father. D~ was not married at the time of T~’s birth.
In an effort to establish paternity, T~ submitted a January 2017 report of genetic
testing showing a 99.9853% “probability of relatedness as full siblings” between T~ and K~.
In determining the father-child relationship status for purposes of survivor’s benefits,
the agency looks to the intestate succession laws of the state in which the NH was
domiciled when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.001(C)(1)(a). In this case, the NH died while domiciled in Utah. Utah’s probate code
provides that for purposes of intestate succession, the parent and child relationship
may be established pursuant to Utah’s Uniform Parentage Act (UPA). See Utah Code Ann. § 75-2-114(1) (West 2017), citing id. § 78B-15-201.
Under the Utah UPA, a father-child relationship may be established by an adjudication
of paternity. Id. § 78B-15-201(2)(c). The agency does not require an actual court adjudication, but
will instead resolve the paternity question using the same standard a Utah court would
apply. 20 C.F.R. § 404.355(b)(2). That means T~ must prove he is the NH’s child by
clear and convincing evidence. See Utah Code Ann. § 78B-15-112 (standard of proof in a trial to determine paternity is
clear and convincing evidence). Clear and convincing evidence “implies something more
than the usual requirement of a preponderance, or greater weight, of the evidence;
and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 270 P.3d 430, 438 (Utah 2011); see also Greener v. Greener, 212 P.2d 194, 205 (Utah 1949) (“[F]or a matter to be clear and convincing to a particular
mind it must at least have reached the point where there remains no serious or substantial
doubt as to the correctness of the conclusion.”).
Genetic testing can provide clear and convincing evidence of paternity. See Utah Code Ann. § 78B-15-505(1); State ex rel. S.H., 119 P.3d 309, 312 (Utah. Ct. App. 2005) (“Genetic testing is capable of determining
paternity with a high percentage of accuracy and will generally satisfy any evidentiary
standard employed by the court.”). However, under Utah’s UPA, genetic testing must
meet certain standards to be admissible:
First, it must be of a type reasonably relied upon by experts in the field of genetic
testing, and be performed in an accredited laboratory;
Second, the report of genetic testing must be signed by a laboratory designee under
penalty of perjury; and
Third, where the laboratory provides documentation establishing a reliable chain of
custody for the testing, the results are admissible without the need for testimony.
Utah Code Ann. §§ 78B-15-503, -504.
Here, the report of testing was done by LabCorp, which is accredited by the American
Association of Blood Banks. See id. § 78B-15-503(1)(a); Model UPA § 503 cmt. (2002) (“The accreditation requirement assures that the testing
will ‘be of a type reasonably relied upon by experts in the field of genetic testing.’”).
The report was also signed by a LabCorp designee under penalty of perjury. Finally,
the lab documentation is also sufficient to establish a reliable chain of custody
because it includes:
The names, fingerprints, and photographs of the individuals whose specimens were taken: T~ and K~;
The name of the individuals who collected the specimens: K~;
The place and date where the specimens were collected: a LabCorp address in O~, Utah,
on January XX, 2017;
The name of the individual who received the specimens in the testing lab: [illegible];
The date the specimens were received: January XX, 2017.
Utah Code Ann. § 78B-15-504(2). Thus, the genetic testing report appears to meet the
Utah UPA’s standards for admissibility.
Turning to the actual results of the testing, the lab reported that the sibling index
for full versus half sibling is 6,786 to 1, for a “probability of relatedness” as
full siblings of 99.9853%. This is insufficient to establish a presumption of paternity
based on genetic testing under Utah’s UPA, which specifically limits the presumption
to testing that shows a 99% probability of paternity (rather than mere relatedness). See id. § 78B-15-505(1). However, because K~ was born during the marriage of D~ and the NH,
he is presumed to be the NH’s child. See id. § 78B-15-204(1)(a). Further, the NH acknowledged K~ as his child in his 2005 DIB application.
Because K~’s relationship as the natural child of the NH is well established, the
genetic test results are compelling evidence of the NH’s paternity of T~. See, e.g. id. § 78B-15-508 (providing for genetic testing of other family members, including “other
children of the man and their mothers,” where a genetic-testing specimen is not available
from the putative father).
T~’s birth certificate, which lists the NH as his father, further supports this conclusion.
Under Utah law, where a child is born to an unmarried mother, a father’s name can
only appear on the birth certificate by court order or by the written consent of the
declarant father. See id. § 26-2-5(5)-(7). In light of these requirements, it is likely the NH acknowledged
We believe that the genetic testing results and birth certificate provide clear and
convincing evidence that the NH is T~’s father for purposes of Utah intestacy laws.
In addition, under Utah law, this determination is retroactive to the date of the
child’s birth since Utah does not distinguish between legitimate and illegitimate
children. See, e.g., id. § 78B-15-202 (once paternity is established under the Utah UPA, the child has the
same legal rights as a child born to parents who are married to each other, including
the right to inherit through intestate succession).
The evidence provided is sufficient to establish that T~ is the NH’s child under Utah
law, and that determination relates back to the time of T~’s birth.