This memorandum is in response to your request for a legal opinion on the evidence
that Louisiana requires: (a) to establish a parent-child relationship involving a
deceased, putative father, and (b) the circumstances in which benefits should be awarded
retroactively following a determination that an individual is the child of a number
holder and entitled to benefits. Specifically, you asked whether an application contains
sufficient documentation to establish the parent-child relationship between the child
and the deceased number holder and, if so, whether the agency should award retroactive
It is our opinion that the claimant proved by clear and convincing evidence that the
child is the number holder’s child under Louisiana inheritance law. Therefore, the
child is the number holder’s child for the purposes of receiving child’s insurance
benefits under the Social Security Act (Act). The agency should not award benefits
retroactively, however, because Louisiana law would not consider the child “legitimized”
or the legal equivalent thereof.
As we understand the facts, Shalynell was born in July. Dernell (NH) died February
14, 2011, while domiciled in Louisiana. In June 2011, Sandra filed an application
for Title II child’s benefits on Shalynell’s behalf, alleging that the NH was Shalynell’s
The evidence presented shows that Sandra was never married to the NH. At the time
of Shalynell’s birth, Sandra was dating two different men, including the NH, who was
married to another woman. Shalynell’s birth certificate lists Graylenn, as her father.
In 2005, however, a court-ordered deoxyribonucleic acid (DNA) test excluded Graylenn
as Shalynell’s biological father. Sandra claims that the NH verbally acknowledged
Shalynell as his child about three years ago. She further stated that the NH intermittently
supplied informal child support of about $40.00 per week and, shortly before his death,
promised to provide health insurance for Shalynell. She added that the NH, at least
occasionally, brought her into his home for visits with two of his other children.
Barbaram, the NH’s mother, stated that the NH never explicitly informed her that Shalynell
was his child. However, Barbara stated that the NH personally told others, including
Barbara’s husband and oldest son, that Shalynell was his child. Ladonna, the NH’s
ex-wife, signed a written statement relating that the NH acknowledged Shalynell as
his child. She also recalled that the NH brought Shalynell to his home for weekend
visits with his two other daughters, a practice which began about two months before
his death. Donavan, the NH’s cousin, provided a statement that the NH acknowledged
Shalynell as his child. The NH’s obituary listed Shalynell as his child, but he left
no will. In a petition for the appointment of an administrator, filed in July 2011,
following the NH’s death, Eugene, the NH’s father, listed Shalynell as one of three
illegitimate children that the NH “formally”  acknowledged. Kernell, the NH’s twin brother, signed an affidavit of jurisdiction
describing Shalynell as the NH’s illegitimate child. On July 5, 2011, a judge issued
an order appointing Eugene and Barbara as administrators of the NH’s estate, based
on the representations contained in these filings. The NH’s estate was solvent, with
a net value of $12,294.85, according to an affidavit of valuation filed in court,
and there is no indication that anyone contested or filed a legal objection to Shalynell’s
status as the NH’s child.
Under the Act, a child of an individual who receives old-age or disability benefits
is entitled to child’s insurance benefits if she (1) is that individual’s child for
purposes of the Act, (2) files for benefits, (3) is unmarried, (4) is under the age
of eighteen, and (5) is dependent upon the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Sandra can establish Shalynell’s
entitlement to benefits by showing that state law would determine her to be the NH’s
child for purposes of intestate succession. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a).  Thus, we look to whether Shalynell could inherit the NH’s property under Louisiana
law, the state where the NH maintained his primary domicile at the time of his death.
See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1).
Louisiana law permits the child of a deceased father to establish paternity by presenting
clear and convincing evidence of the parent-child relationship.  See La. Civ. Code Ann. art. 197. Louisiana refers to “the legal relationship between a
child and his parent” as “filiation.” See id. § 178. Louisiana law provides that proof of paternity establishes “filiation,” i.e.,
a parent-child relationship between the NH and Shalynell. See La. Civ. Code Ann. art. 178-179. Establishing filiation to a deceased father, by
clear and convincing evidence, entitles the child to inherit from the father, id.,
and, therefore, to be considered his child under the Act, see 42 U.S.C. § 416(h)(2)(A);
20 C.F.R. § 404.355(a)(1). Louisiana courts view clear and convincing evidence as
an “immediate standard falling somewhere between ‘the ordinary preponderance of the
evidence civil standard and the beyond a reasonable doubt criminal standard.’” Comeaux v. City of Crowley, 793 So. 2d 1215, 1220 (La. 2001) (citation omitted). Functionally, “[t]he burden
of proof by clear and convincing evidence requires a party [to show] that the fact
or causation sought to be proved is highly probable, i.e., much more probable than
its non-existence.” Gibbs v. Delatte, 927 So. 2d 1131, 1140 (La. Ct. App. 2005); accord Sudwischer v. Estate of H~, 705 So. 2d 724, 731-32 (La. 1997) (describing burden in identical terms in relation
to proof of filiation by illegitimate children). Louisiana courts have recently expressed
a preference that persons attempting to prove paternity by clear and convincing evidence
provide genetic testing results. See Dep’t of Soc. Serv., Office of Family Support v. Drew, 70 So. 3d 1011, 1013 (La Ct. App. 2011) (alluding to the inherent uncertainties
in determining filiation absent scientific evidence). Sandra did not proffer any genetic
evidence substantiating that Shalynell is the NH’s child.
Louisiana courts have also, however, relied upon evidence such as birth certificates
and testimony that an individual informally acknowledged or treated a child as his
own, to establish a parent-child relationship. See Jenkins v. Mangano Corp., 774 So. 2d 101, 104-05 (La. 2000) (financial support and uncontroverted testimony
by individuals lacking pecuniary interest in litigation established paternity); Ratliff v. LSU Bd. of Supervisors, 38 So. 3d 1068, 1077 (La. Ct. App. 2010) (birth certificates and testimony). As
stated, while the NH was not listed as Shalynell’s father on her birth certificate,
Sandra has provided significant evidence that shows he made an informal acknowledgment.
Louisiana law allows proof of filiation by showing clear and convincing evidence that
a father made an informal acknowledgement. See Chatelain v. State, Dep’t of Transp. & Dev., 586 So. 2d 1373, 1378 (La. 1991); accord J~, 774 So. 2d at 104-05; S~, 705 So. 2d at 731-32 see also La. Civ. Code Ann. art. 197, cmt. (c) (explaining that “all relevant evidence is
admissible to prove paternity,” including “informal acknowledgment”). 
Informal acknowledgment encompasses activities of the alleged father such as acceptance
of the child in “formal writings or in public or private conversations”; educating
the child; living with the mother at the time of conception; rearing the child in
his own home; naming the child in a will; assigning his surname to the child; and
“holding the child out in the community as his own.” C~, 586 So. 2d at 1379. Louisiana courts typically are reluctant to find informal acknowledgement
“for purposes of filiation unless the father has recognized the child as his own unequivocally
and on several occasions.” Id. (collecting cases). Put differently, “an informal acknowledgment of filiation must
be unequivocal and sufficiently frequent so that there is little doubt the alleged
father truly believed he was the father of the child.” Id. (encapsulating holding of Succession of M~, 346 So. 2d 1345, 1350-51 (La. Ct. App. 1977)). Thus, we analyze the evidence to determine
whether Sandra has proven by clear and convincing evidence that the NH made an informal
We first discuss evidence indicating that Shalynell is the NH’s child. To reiterate,
to satisfy the clear and convincing standard of proof, an individual must show that
the “fact or causation sought to be proved is highly probable, i.e., much more probable
than its non-existence.” G~, 927 So. 2d at 1140. Sandra admitted that she was dating both the NH and Graylenn,
when she conceived Shalynell. DNA results, however, eliminated Graylenn as Shalynell’s
father, and Sandra has articulated a plausible reason for listing Graylenn on the
birth certificate, i.e., the NH was married to another woman at the time of Shalynell’s
birth, and Sandra wished to avoid a potentially difficult confrontation with his spouse.
See La. Civ. Code Ann. art. 197 & cmts. (a), (b) (establishing that child may prove filiation
with individual despite presumption of paternity by another man and may even demonstrate
filial relationships with more than one man), id. cmt. (c) (ascribing great importance to DNA evidence); accord D~, 70 So. 3d at 1013
(determining that DNA evidence satisfied clear and convincing standard of proof).
Thus, Sandra’s statement and the DNA evidence create a negative inference that the
NH is Shalynell’s father. Put differently, if only Graylenn and the NH could have
been Shalynell’s father, then Graylenn’s exclusion necessarily leads to the conclusion
that the NH was Shalynell’s father. Other evidence includes Sandra’s allegations that
the NH acknowledged Shalynell, provided some limited financial support, and brought
her into his home. Numerous family members’ statements—specifically, those of Barbara,
the NH’s mother; Ladonna, the NH’s ex-wife; Forte, the NH’s cousin; Eugene, the NH’s
father; and Kernell indicate that they understood Shalynell to be the NH’s child.
C~, 586 So. 2d at 1379; accord La. Civ. Code Ann. art. 197, cmt. (c). The NH appears
to have told Ladonna, Forte, Eugene, and his older brother that Shalynell was his
child. Eugene, and Kernell indicated that Shalynell was the NH’s child when they listed
her in the court paperwork for the NH’s estate. Notably, although the NH’s estate
was solvent, there is no suggestion in the record that any party filed a legal objection
to Shalynell’s status as the NH’s child. Finally, the NH’s obituary describes Shalynell
as his child.
We next discuss evidence militating against a finding that Shalynell is the NH’s child.
First, the birth certificate lists Graylenn as her father. Louisiana law specifies
that “[a] man may, by authentic act or by signing the birth, certificate, acknowledge
a child, . . . creat[ing] a presumption that the man . . . is the father.” La. Civ.
Code Ann. art. 196. The evidence does not show that the NH acknowledged Shalynell
in writing. Louisiana law prefers proof of paternity through genetic testing, see D~, 70 So. 3d at 1013, but there are no DNA test results directly corroborating NH’s
relationship to Shalynell. Although the NH allegedly promised to procure insurance
for Shalynell shortly before his death, he never did so.  While Sandra quite evidently pursued a child support action against Graylenn, she
never sought such legal enforcement against the NH, despite his relatively meager
voluntary assistance. By Sandra’s own admission, the NH did not consistently acknowledge
Shalynell until 2008, approximately twelve years after her birth and three years after
DNA testing excluded Graylenn as her father. The NH’s legitimate children also apparently
harbored some doubts regarding Shalynell’s parentage, as they suggested that she should
obtain a blood test after the NH’s death.
We look at the evidence presented as a whole and find that it represents “highly convincing”
proof of filiation, i.e., it is “much more probable than [not]” that Shalynell is
NH’s child, G~, 927 So. 2d at 1140, because credible evidence reveals that “the [NH] . . . recognized
[Shalynell] as his own unequivocally and on several occasions,” C~, 586 So. 2d at 1379.
You also asked us to analyze whether Shalynell is entitled to retroactive benefits.
Louisiana law does not explicitly answer the question whether an act that grants inheritance
rights operates prospectively from the date of the act or retroactively to the date
of birth. In order for a child to be entitled to retroactive benefits extending prior
to the date the claimant proved the parent-child relationship, the state law that
granted legitimacy or inheritance rights to the child must make those rights retroactive
for some period. See 42 U.S.C. § 416(h)(2)(A); Program Operating Manual Instructions RS 00203.010, GN 00306.050, GN 00306.085. In Social Security Ruling (“SSR”) 85-17, the agency determined that the courts have
consistently distinguished between state statutes that legitimate children and those
that merely confer inheritance rights. 1985 WL 56848, at *2 (1985). SSR 85-17 recognizes
that state statutes that legitimize a child tend to be given retroactive effect, whereas
statutes that confer inheritance rights without legitimizing the child generally operate
only prospectively. See id. Thus, we must determine whether Louisiana law provides that the NH’s informal acknowledgment
legitimized Shalynell, and if so, whether the legitimation applied retroactively.
Otherwise, Shalynell is entitled to benefits retroactive only to the date the record
evidence first proved filiation by clear and convincing evidence.
Louisiana intestacy law, referenced above, provides that when a person dies without
a valid will, “the undisposed property of the deceased devolves by operation of law
in favor of his descendants, ascendants, and collaterals, by blood or by adoption,
and in favor of his spouse not judicially separated from him.” La. Civ. Code Ann.
art. 880. A comment following article 880 states that “[o]nce a relationship is proven
by blood or adoption, the succession rights of such a relative are established without
reference to the legitimacy of that relationship.” Id., cmt. (c). Because Sandra has proven Shalynell’s filiation to the NH by clear and
convincing evidence of informal acknowledgment, her succession rights have been established
without reference to that relationship’s legitimacy. The evidence presented does not
show that Shalynell was the NH’s legitimate child.
Furthermore, in 2004, Louisiana amended and reenacted numerous codes and statutes
to reflect the change in terminology from “legitimate child” to “child born of marriage”
and from “illegitimate child” to “child born outside of marriage.” See 2004 La. Acts 26 (Enactment of New Terminology Relative to the Status of Children),
available at http://www.legis.state.la.us/ leg_docs/04RS/CVT2/ OUT/0000LIZ3.PDF. While the law before 2004 provided for the
“legitimation” of children, the legislature deleted this term in favor of the “acknowledgement”
of children. See id. Applying current Louisiana law, we cannot state that the proof of informal acknowledgment
Sandra presented had the effect of rendering Shalynell a “child born of marriage,”
because the NH and Sandra indisputably were never married. Instead, as detailed above,
Louisiana law provides that proof of paternity establishes “filiation,” i.e., a parent-child
relationship between the NH and Shalynell. See La. Civ. Code Ann. art 178-179. Louisiana law does not, however, suggest that establishing
filiation equates to legitimizing a child. Moreover, Louisiana law does not explicitly
resolve whether an act that establishes paternity or filiation or that grants inheritance
rights operates prospectively from the date of the act or retroactively to the date
of birth. Because Louisiana law provides no basis for the agency to establish the
parent-child relationship retroactively to Shalynell’s birth, she is not entitled
to retroactive benefits under 42 U.S.C. § 416(h)(2)(A).
Because Louisiana law provides no basis for the agency to establish retroactively
the parent-child relationship between the NH and Shalynell, the effective date of
the parent-child relationship is the date that Shalynell first met all of the requirements
for entitlement to child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). The Act provides that the child
of an individual entitled to disability insurance benefits shall be entitled to child’s
insurance benefits beginning with the first month in which the child meets the criteria
for child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). If the child meets all of the requirements
for entitlement to child’s insurance benefits before an application is filed, the
child is entitled to receive retroactive benefits for no more than the six-month period
immediately preceding the month in which the application was filed. See id. § 404.621(a)(2). The benefits begin with the first month in the six-month period
throughout which she meets the requirements for entitlement. See id. §§ 404.352(a)(2), 404.621(a)(2).
On these facts, and as explained above, we concluded that Sandra proved by clear and
convincing evidence that Shalynell is the NH’s child. We conclude that the evidence
shows that Sandra established Shalynell’s filiation to the NH by clear and convincing
evidence in July 2011, when Eugene, and Kernell filed the petition for the administration
of the intestate NH’s estate. Their decision to list Shalynell as the NH’s child in
legal paperwork reinforces the apparently widespread belief within the NH’s family
that Shalynell is the NH’s child and, concomitantly, Sandra’s credibility.  Shalynell’s inclusion in the petition for the appointment of the administrator had
immediate legal consequences, given the solvency of the estate and the lack of a will.
Accordingly, we believe the evidence of informal acknowledgment and filiation became
clear and convincing only in July 2011, when Eugene, filed the petition for administration.
Although the question is close, we advise that the agency treat Shalynell as the NH’s
child for purposes of determining her entitlement to benefits. However, the agency
should not award retroactive benefits because the evidence of filiation became clear
and convincing only in July 2011, and Louisiana law offers no basis for us to find
Regional Chief Counsel
Mark J. Mendola
Assistant Regional Counsel