TN 1 (12-04)

PR 01120.053 Washington

A. PR 04-227 Date of Establishment of a Parent-Child Relationship by DNA Results Number Holder - Jerome L. G~ SSN ~

1. SYLLABUS

Based on DNA test results showing a 99.99% probability that the deceased NH is the father of the child claimant, the NH is presumed to be the child's father under Washington law. Therefore, the child is legitimate as of the date of his 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 Washington 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 exists at the date of birth; thereby establishing eligibility for child's insurance benefits as of that date.

FACTUAL BACKGROUND

Jerome L. G~ received disability insurance benefits as of January 2003. He died in January 2004. DNA testing conducted on February 18, 2004, showed that there is a 99.99% probability that Mr. G~ is the father of Nasir Q. R. G~, who was born July 31, 2003. On March 30, 2004, Lauren P~ applied for child's insurance benefits for her son, Nasir.

As of this date, the State of Washington, through the King County Prosecuting Attorney's Office, has not determined whether they will institute proceedings to have Nasir's birth certificate amended to add Mr. G~ as Nasir's father.

DISCUSSION

A. Statutory and Regulatory Background

Nasir is entitled to Title II child's insurance benefits on Mr. G~'s account only if he is Mr. G~'s “child” under a relationship defined in 20 C.F.R. §§ 404.355 through 404.359. See 20 C.F.R. 404.350(a)(1). 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, Mr. G~ was fully insured at the time of his death. Nasir is under the age of 18, is not married, and has applied for benefits. Thus, the only issues are whether Nasir met the second and fourth requirements above. If Nasir met the second requirement, he is also considered dependent upon Mr. G~, satisfying the fourth requirement. See 20 C.F.R. § 404.361.

Nasir can show that he was the child of the deceased wage earner (the second requirement) in one of the following four ways:

1. he could inherit as Mr. G~'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).

2. he is Mr. G~'s natural child and his mother, Lauren P~, and Mr. G~ 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).

3. before his death, Mr. G~ acknowledged in writing that Nasir was his son; was decreed by a court to be Nasir's father; or was ordered by a court to contribute to Nasir's support because he was his son. 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).

4. Mr. G~ is shown by evidence satisfactory to the Commissioner of Social Security to have been Nasir's father, and he was living with or contributing to Nasir'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).

Number one requires application of state intestacy law; numbers two through four require the application of alternative federal standards.

B. Washington Paternity and Inheritance Laws

Because Mr. G~ died domiciled in Washington, the laws of the State of Washington must be applied to determine whether Nasir would be entitled to Mr. G~'s personal property if he had died without a will (intestate).

Under RCW 11.04.015(2)(a), the net estate, if there is no surviving spouse, first descends to the issue of the intestate. “Issue” includes “ all of the lawful lineal descendants of the ancestor and all lawfully adopted children.” RCW 11.02.005(4). “Descendant” in this context has been defined as “one who is descended from another; a person who proceeds from the body of another, such as a child, grandchild.” Estates of Donnelly v. Iverson, 81 Wash.2d 430, 433 (1972), reh'g den., (1973) (internal citations omitted). Washington State intestacy statutes do not contain a standard under which a child can prove that he or she is the “issue” of a deceased individual. Therefore, the courts turn to the standards set forth in Washington's State Uniform Parentage Act at Chapter 26.26 of the Washington Code. See Ramo v. Shalala, No. 93-36054, 1994 WL 650005, at *2 (9th Cir. November 15, 1994).

The appropriate burden of proof i