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?
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.
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.
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. §
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 in paternity actions under RCW 26.26 is a preponderance
of the evidence. See State on behalf of McMichael v. Fox, 132 Wash.2d 346, 352 (1997). Unlike some other States, in Washington, the burden
of proof does not shift to “clear and convincing evidence” after the death of the
putative father. See id. Even if there is no valid State court determination, an SSA adjudicator may make
a paternity determination using a preponderance of the evidence standard. See Programs Operations Manual System (POMS) GN 00306.075.
RCW 26.26.420 states:
(1) Under this chapter, a man is rebuttably identified as the father of a child if
the genetic testing complies with this section and RCW 26.26.400 and 26.26.425 through
26.26.450 and the results disclose that:
(a) The man has at least a ninety-nine percent probability of paternity, using a prior
probability of 0.50, as calculated by using the combined paternity index obtained
in the testing; and
(b) A combined paternity index of at least one hundred to one.
RCW 26.26.111 sets forth the consequences of the establishment of paternity:
Unless parental rights are terminated, the parent-child relationship established under
this chapter applies for all purposes, except as otherwise provided by other laws
of this state.
Here, the DNA testing shows a 99.99% probability of paternity. Based on these results,
Mr. G~ is presumed to be Nasir's father under Washington law. See, e.g., Wise v. Taylor, 828 P.2d 1143, 1144 (Wash.App. 1992) ("[a] 99.55 percent probability of paternity,
when not contraindicated by other evidence (such as compelling evidence of the putative
father's sterility or absence during the period of conception), far exceeds the applicable
standard of proof by preponderance of the evidence”). We have received no evidence
rebutting the presumption.
GN 00306.085 states that a child in Washington is legitimate from the date of birth. See also POMS GN 00306.050A. Thus, Nasir is legitimate as of the date of his birth, July 31, 2003.
Lucille G. M~
Regional Chief Counsel
Joanne E. D~
Assistant Regional Counsel