TN 4 (01-06)

PR 01120.050 Vermont

A. PR 06-001 Vermont Intestacy Laws - Effective Date of Child Relationship, Jeffrey C~, SSN ~

DATE: November 7, 2005

1. SYLLABUS

A claimant found to be the child of a deceased number holder based on a DNA test which exceeds the statutory requirement in Vermont law may be entitled for child's benefits effective with the month of the DNA testing. No retroactive benefits are payable since the claimant could not inherit from the number holder prior to the date of the genetic test.

2. OPINION

This is in response to your request for an opinion concerning the effective date of entitlement to child's benefits based on a parent-child relationship established by DNA evidence. For the following reasons, the child is not entitled to retroactive benefits for the period prior to June of 2005, when DNA evidence established paternity.

BACKGROUND

The wage earner, Jeffrey C~, died on October 16, 2004. At the time of his death, he was domiciled in the state of Vermont. The child, Maria C~, was born on February 17, 2005. The deceased wage earner is not named as the father on the child's birth certificate. On April 13, 2005, Leslie A~, the child's mother, filed a claim for surviving child's benefits on behalf of the child based on the account of the deceased wage earner. In support of the application, the mother submitted DNA evidence from June 27, 2005, showing a 99.99999 percent probability that the deceased wage earner was the child's father. The application was allowed at the initial level, with entitlement beginning in June of 2005, based on the DNA evidence. The mother sought reconsideration asking that the date of entitlement be amended to February of 2005, the month of the child's birth.

Analysis

In order to be entitled to child's benefits, a claimant must (1) file an application for benefits, (2) be the child of a wage earner who died currently or fully insured, (3) be unmarried, (4) be under age eighteen or a full-time secondary student under age nineteen or under a disability which began before age twenty-two and (5) be dependent upon the wage earner at the time of his death. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). Entitlement to benefits begins in the first month in which all of these requirements are met. 42 U.S.C. § 402(d)(1)(C)(i); 20 C.F.R. § 404.352(a)(1).

In determining whether an applicant is the child of a deceased wage earner, the Commissioner applies the state intestacy laws of the state in which the wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1) and (b). An applicant will be considered the deceased wage earner's child for benefit entitlement purposes if she could inherit from the wage earner's estate under the applicable state intestacy laws. Id.

Under Vermont's intestacy statutes, an illegitimate child may inherit from or through her father if the father has been declared the putative father under VT. STAT. ANN., tit. 15, § 306 or if the father openly and notoriously claimed the child to be his own. VT. STAT. ANN., tit. 14, § 553(b). Under Vermont's presumption of parentage statute, VT. STAT. ANN., tit. 15, § 308, parenthood is presumed if the probability that an alleged parent is the biological parent exceeds 98 percent as established by a scientifically reliable genetic test. Here the DNA testing exceeds the statutory requirement for the presumption of paternity. Therefore, under an application of Vermont's intestacy statutes, the child could inherit from the deceased wage earner's estate. For inheritance purposes, VT. STAT. ANN., tit. 14, § 553(b) requires that a judgment or order of paternity be made under VT. STAT. ANN., tit. 15, § 306. However, for claims filed on or after November 27, 1998, in applying state inheritance laws, the Commissioner does not require an actual state court adjudication of paternity. See Application of State Law in Determining Child Relationship, 63 FR 57591 (Oct. 28, 1998), codified at 20 C.F.R. § 404.355(b)(2). Rather, the Commissioner simply applies the standard of proof that the state court would apply in determining paternity. Id. Under such an application, the child could inherit from the deceased wage earner's estate, therefore, she would be considered the deceased wage earner's natural child for benefit eligibility purposes. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). Such entitlement would begin as of June of 2005, the month of the DNA test, because this is the first month in which all the necessary entitlement factors are met. 42 U.S.C. § 402(d)(1)(C)(i); 20 C.F.R. § 404.352(a)(1).

The only way the child could be entitled to benefits prior to June of 2005 is if she could be found to be the deceased wage earner's natural child based on other satisfactory evidence from prior to June of 2005 establishing both paternity and that the deceased wage earner lived with the child or contributed to her support when he died. 20 C.F.R. § 404.355(a)(4). Second Circuit case law permits a showing of support even where the child is born posthumously. Adams v. Weinberger, 521 F.2d 656 (1975). Evidence of such support need not establish that the support was regular and continuous, only that it was "commensurate with the needs of the unborn child at the time of the father's death." Id. at 660. Such evidence need only show that the wage earner "provided some type of support during the mother's pregnancy." POMS 00306.285B.1.a. Nonetheless, in this instance there is no other evidence from prior to June of 2005 that would show the child was the deceased wage earner's natural child under 20 C.F.R. § 404.355(a)(4). Accordingly entitlement to benefits cannot be established prior to June of 2005.

CONCLUSION

The child is considered the natural child of the deceased wage earner for benefit eligibility purposes based on an application of the state intestacy statutes. Entitlement to benefits begins in the first month in which all of the eligibility requirements are met. 42 U.S.C. § 402(d)(1)(C)(i); 20 C.F.R. § 404.352(a)(1). Here, the first month in which all such factors were met is June of 2005. Therefore, benefits cannot be paid retroactively beyond this date.


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http://policy.ssa.gov/poms.nsf/lnx/1501120050
PR 01120.050 - Vermont - 05/10/2011
Batch run: 05/10/2011
Rev:05/10/2011