ISSUE PRESENTED AND SHORT ANSWER
You asked whether there is sufficient evidence to establish that Erik (NH) is the
biological father of Cassidy, giving Cassidy inheritance rights under Indiana intestacy
laws, which would establish a parental relationship under Section 216(h)(2) of the
Social Security Act.
As discussed below, we believe Indiana courts will likely find that the evidence submitted
by claimant’s mother Jessica, including avuncular DNA test results, satisfies the
preponderance of the evidence standard to establish paternity under Indiana law. Accordingly,
you may conclude that Cassidy is the NH’s child for purposes of eligibility for child’s
The NH was domiciled in Indiana when he died on November 27, 2011. The minor claimant
Cassidy was born in Michigan on March 8, 2012 to Jessica. According to the record,
Cassidy’s mother and NH were never married and the name of Cassidy’s father is blank
on her birth certificate.
Jessica applied for child insurance benefits on behalf of Cassidy based upon NH’s
record in April 2012. In support of Cassidy’s claim, Jessica provided the following
evidence: (1) a statement that she and NH lived together from May 4, 2011 through
the beginning of August 2011, that Cassidy was conceived in June 2011, and that NH
knew she was pregnant, but did not contribute regularly to her support; (2) a statement
from NH’s father Charles stating that NH told him that Jessica was pregnant, that
NH was pretty much convinced the child was his, and that NH’s father Charles had no
doubt NH is Cassidy’s father; and (3) genetic DNA testing comparing Cassidy’s DNA
and NH’s brother Sean indicating a 98.858% probability that Sean was Cassidy’s uncle
and that Sean was 86.56 times more likely to be related as an uncle than to be unrelated.
The Social Security Act provides for the payment of benefits to the “child” of an
insured wage earner who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The
Act provides that a child can obtain benefits on account of the wage earner if the
child can take a child’s share of the wage earner’s intestate personal property. 42
U.S.C. § 416(h)(2)(A); see also 20 C.F.R. 404.355(a)(1); POMS GN 00306.001(C)(1)(a). If the insured person is deceased, the Commissioner of Social Security
applies the intestacy laws for the state where the deceased insured person was domiciled
at the time of his death. 20 C.F.R. § 404.355(b)(1); POMS GN 00306.001(C)(2)(a). The state of domicile may also “apply the law of the place where an event
(e.g. adoption) occurred in determining” the child’s relationship to the wage earner.
POMS GN 00306.005. In this case, because NH was domiciled and owned property in Indiana at the time
of his death, Indiana intestacy laws apply to determine whether Cassidy could inherit
a share of NH’s personal property as his child. We also considered whether Indiana
or Michigan parentage laws would apply to determine Cassidy’s inheritance rights since
Cassidy was born in Michigan. See POMS GN 00306.005. Indiana courts have held that the law of the state where real or personal property
is located applies in determining intestate succession. See In re Paternity of D~, 900 N.E.2d 454, 460-61 (Ind. App. 2009). The record does not indicate that NH owned
any real or personal property in Michigan or that Michigan courts are determining
the paternity issue, thus the law of Indiana applies. See Id. Therefore, we believe Indiana intestacy laws apply in determining whether Cassidy’s
mother provided sufficient evidence of paternity.
Pursuant to Indiana intestacy law, a child born out of wedlock after the father’s
death can posthumously establish the right to inherit only if the paternity cause
of action is filed before or within eleven months of the father’s death. Ind. Code
Ann. § 29-1-2-7(b)(3); POMS GN 00306.485. Although Indiana law requires a paternity action, SSA will not require the claimant
to bring the parentage action or establish paternity prior to the death of the alleged
insured father’s death. 20 C.F.R. 404.355(b)(2). Rather, SSA will determine a paternity
issue by using the standard of proof that the state court would use as a basis for
a paternity determination. Id.
Indiana law provides several provisions to establish presumptions of paternity, including
the following relevant to our analysis: a genetic test indicating that the man is
the child’s biological father with at least a 99% probability. Ind. Code § 31-14-7-1;
POMS GN 00306.485. While Indiana intestacy laws create a presumption of paternity if valid DNA tests
establish a 99% probability of paternity, Indiana statutory law does not contemplate
a presumption of paternity when the DNA tests are based on the siblings of the alleged
father. Ind. Code Ann. 31-14-7-1. In this case, the DNA tests indicate that there
is a 98.858% probability that the alleged uncle Sean is related to Cassidy and 86.56
times more likely to be related to Cassidy as an uncle than to be unrelated. However,
because the DNA results are based on NH’s brother, the statutory presumption of paternity
does not apply.
Notwithstanding the absence of statutory presumptions regarding paternity, Indiana
law provides that a finding of paternity can be established by preponderance of the
evidence. See Collins v. Wise, 296 N.E.2d 887, 889-91 (Ind. App. 1973); Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. App. 1995); see also POMS GN 00306.485. Indeed, under the preponderance of the evidence standard, Indiana courts have determined
that the mother’s testimony, if deemed credible and corroborated, can establish paternity,
notwithstanding evidence of intercourse with another man. Id. The courts may also consider other evidence, including DNA genetic test results,
relevant to making a paternity determination. See First Student, Inc. v. Estate of Meese, 849 N.E2d 1156, 1164 (Ind. App. 2006).
In this case, Indiana courts may find that Cassidy’s mother’s statements that NH is
Cassidy’s biological father and that NH knew she was pregnant, if credible, are relevant
to establish that NH is Cassidy’s father under the preponderance of the evidence standard.
In addition to Cassidy’s mother’s statements, Indiana courts may find that the other
evidence, including (1) DNA genetic test results indicating a 98.858% probability
that NH’s brother Sean is related to Cassidy; and (2) NH’s father’s statements, corroborate
a finding that NH is Cassidy’s father. Therefore, you may conclude that Indiana courts
would find that there is sufficient evidence to establish that NH is Cassidy’s biological
father, giving Cassidy inheritance rights as a child under Indiana intestacy laws.
For the foregoing reasons, we conclude that the DNA test results and other evidence
provided by Cassidy’s mother will likely satisfy the preponderance of the evidence
standard to establish Cassidy is NH’s child, and thus that Cassidy would be entitled
to inherit NH’s personal property. As such, you could reasonably find that Cassidy
is the NH’s child for purposes of eligibility for child’s benefits.