This is in response to your October 13, 2005 request for an opinion as to (1) whether
the presumption of legitimacy between the Number Holder and Calvin D. J~ has been
rebutted under West Virginia law; (2) whether a parent-child relationship between
the Number Holder and J~ has been established; (3) the effective date of that relationship;
and (4) whether J~ is entitled to retroactive benefits.
We have reviewed the information that you provided and have researched relevant West
Virginia law regarding the presumption of legitimacy of a child born during a valid
marriage. Based on our research, we have concluded that the evidence is sufficient
to overcome the presumption that Calvin D. J~ (Calvin) is not the Number Holder's
child. Accordingly, Calvin is entitled to child's benefits under the Number Holder's
Mable J~ and R. Dale J~ were married on April 24, 1999. According to Mable, she and
her husband lived together at all times after their marriage except for a four day
separation from December 26 to December 29, 2003. During the four day period, Mable
had sexual relations with the Number Holder, a resident of Spencer, West Virginia.
On September 21, 2004, approximately nine months after sexual relations between Mable
and the Number Holder, Mable gave birth to Calvin.
Calvin's birth certificate and an application for his social security number identify
Mable and Randall J~ as Calvin's parents.
On October 12, 2004, three weeks after Calvin's birth, the Number Holder was killed
by a blunt force injury to his head in an altercation outside of his home.
On May 31, 2005, Mable applied for a lump sum death payment and monthly survivor benefits
for Calvin. As proof of paternity of the Number Holder, Mable submitted a DNA paternity
test showing a 99.9999 percent probability that the Number Holder was Calvin's father.
The combined paternity index was 18,053,257. Additionally, Sherry C~, sister of the
deceased Number Holder, provided a statement that the Number Holder told her that
Calvin looked like him and that the Number Holder thought Calvin was his son.
The general criteria for entitlement to child's insurance benefits are found in 42
U.S.C. § 402(d)(1). Section 402(d)(1) provides that every "child" of an individual
who dies fully or currently insured under the Act is entitled to child's insurance
benefits if the child has applied for such benefits, is unmarried, under the age of
18, and was dependent upon the insured individual at the time of the insured's death.
Id. A child is deemed dependent if he was (1) living with or supported by the wage earner
at the time of his death, or (2) is the legitimate child of the wage earner. 42 U.S.C.
If a child is illegitimate, he may nonetheless be deemed legitimate for purposes of
the Act (and deemed dependent and entitled to benefits) if he can establish that he
would be entitled to inherit personal property from the deceased wage earner under
the intestacy laws of the wage earner's state of domicile at death under 42 U.S.C.
Calvin's paternity does not squarely fit into the Act's criteria for receiving child's
benefits since Calvin was born into a marriage (and hence was legitimate) but not
into a marriage between his biological parents. Thus, while he was technically neither
the legitimate child of the Number Holder nor an illegitimate child (because he was
born in wedlock), for purposes of the Act, the section on illegitimacy would be applicable
because the relationship at issue is between Calvin and the Number Holder. Therefore,
a determination must be made as to whether Calvin could inherit from the Number Holder's
estate under the intestacy laws of West Virginia POMS GN 00306.670, the Agency's guideline for establishing child relationships and dependency, also
looks to West Virginia's Intestacy laws in making the determination of paternity.
West Virginia Code § 42-1-5 and the POMS state that a child can establish paternity
when the putative father (insured) is deceased, by "clear and convincing" evidence.
Clear and convincing evidence is defined as the degree of proof which will produce
in the mind of the adjudicator a firm belief or conviction of paternity. While the
POMS state that no particular amount, type, or combination of evidence is sufficient
to meet the standard, it states that undisputed genetic blood or tissue test results
which show a statistical probability of paternity of 98% or greater shall constitute
clear and convincing evidence of paternity. Thus, the DNA results in this case would
compel a finding of paternity for the Number Holder.
Having determined that Calvin would generally qualify for child's insurance benefits
under West Virginia's intestacy laws and under the POMS, we will now analyze whether
the presumption of Calvin's legitimacy can be rebutted under the common law of West
Virginia. Because West Virginia follows the Lord Mansfield Rule, there is a strong
presumption that a child born during a marriage is the husband's child. Young v. Prichard, 542 S.E.2d 925, 929 (W. Va. 2000); See State v. Reed, 149 S.E. 669, 671 (W. Va. 1929). West Virginia law, however, clearly recognizes
that the presumption of legitimacy may be rebutted with "clear and satisfactory evidence"
of non access of the husband, impotency, or sterility. See State ex rel J.L.K. v. R.A.I., 294 S.E.2d 142, 146 n.9 (W. Va. 1982); L.A.M. v. M.L.M., 250 S.E.2d 40, 43 (W. Va. 1978) (citing 9 Wigmore, Evidence § 2527 (C~ Rev. 1961)); see also, POMS GN 00306.025 (stating generally that the presumption of legitimacy may be rebutted by sterility
or absence of the husband during the entire period of possible conception and, in
some states, by blood/genetic tests).
POMS GN 00306.025, Lord Mansfield Rule, recognizes that many states such as West Virginia apply the
Lord Mansfield Rule, which bars the mother of the child and her legal husband at the
time the child was conceived or born from giving testimony that might prove that the
child is illegitimate, i.e., that the child is the natural child of a man other than
the husband. Where the applicable state law does not permit introduction of such evidence,
the Agency will not accept it for purposes of determining the child's status under
state law. The Agency recognizes, however, that the statements of the mother and her
legal husband may furnish leads to other competent evidence which SSA may use in rebutting
the presumption of legitimacy.
Because the only evidence of "non-access" in this record is from Mable, the Lord Mansfield
Rule would preclude any consideration of that evidence. Notably, even if such evidence
from Mable could be considered, a marital separation of less than one week during
the potential period of conception is insufficient to clearly and satisfactorily demonstrate
conception-precluding non-access. We also note that there is no evidence that Randall
was either impotent or sterile. Thus, under the "traditional" methods of rebutting
the presumption of legitimacy of a child born during a marriage, Mable could not rebut
the presumption of Calvin's legitimacy. Therefore, the critical issue becomes whether
the DNA evidence of the Number Holder's paternity is a permissible method of rebutting
the presumption of paternity under West Virginia law.
When Lord Mansfield contemplated his rule to protect the legitimacy of children born
in wedlock, DNA evidence did not yet exist and the social purpose of the rule - to
prevent parents from imposing the stigma of illegitimacy on children born in their
marriage - has diminished in today's society. See, e.g., Michael K.T. v. Tina L.T., 387 S.E.2d 866, 869-70 (W. Va. 1989) (stating that "it has been recognized that
the stigma of illegitimacy is diminishing in the wake of a society which is composed
of so many non-traditional households (e.g. single parents, step-parents, etc.)."
In Michael K. T., the Supreme Court of Appeals of West Virginia did note in dicta that West Virginia's
own statute enacted to allow mothers to obtain support payments from putative fathers
(West Virginia Code § 48-24-103(a)(3)) provides that undisputed blood or tissue test
results which show the requisite statistical probability of paternity (presently 98
percent) legally establish the paternity of any man sued for support. Id. at 870. The language of West Virginia's paternity statute is a strong indication
that blood test evidence would be deemed sufficient to overcome the presumption of
legitimacy in paternity cases.
Although Michael K. T. was a divorce proceeding in which the husband's attempt to use blood test results
was to disprove his own paternity to avoid child support, the case holding lends general
support for the use of blood evidence in West Virginia in cases involving disputed
paternity. The Court ruled that the presumption of legitimacy that arises when a child
is born or conceived during a marriage is rebuttable and that blood test results may
be used to rebut the presumption of legitimacy where the equities surrounding the
particular facts and circumstances of the case warrant admission of blood test results.
Id. at 870-71. The Court would preclude the use of blood test evidence to disprove paternity
when the individual attempting to disestablish paternity has held himself out to be
the father of the child for a sufficient period of time such that disproof of paternity
would result in undeniable harm to the child. Id. at 871-72. Thus, even in a case where a parent to the marriage is attempting to disprove
his own paternity, use of blood evidence is admitted if no harm would come to the
child. By so finding, the Court implicitly ruled that blood evidence may be used to
rebut the presumption of legitimacy in certain cases.
We believe that the intestacy laws of West Virginia, the acknowledgement in West Virginia
Code § 48-24-103(a)(3) that test results which show a statistical probability of paternity
of more than ninety-eight percent legally establish the paternity of any man sued
for support, and the dicta from Michael K. T. case all suggest that DNA evidence may be considered to rebut the presumption of
Randall's paternity in this case. Even if we were to examine Calvin's best interests
based on our limited information, it appears from Calvin's age, it is unlikely that
he would be harmed from a determination that the Number Holder was his biological
Finally, the regulations provide that if the insured is deceased, the children are
entitled to benefits beginning with the first month covered by the application in
which they meet all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1).
The regulations provide that children may receive retroactive benefits for up to twelve
months preceding the date of the application. 20 C.F.R. § 404.621. However, benefits
can only be paid from the first month that all requirements for entitlement are met.
20 C.F.R. § 404.620(a)(1).
In this case, both the application for benefits and the latest necessary piece of
evidence to establish paternity were provided in May 2005. Therefore, retroactive
benefits should not be paid in this case.
Donna L. C~
Regional Chief Counsel
Stephen T. G~
Assistant Regional Counsel