Whether C~ and G~, who were born while their mother J~ was married to M~, are entitled
to survivor’s benefits on the record of their alleged biological father, E~ (the Number
Holder or NH).
C~ is entitled to survivor’s benefits on the record of the NH because he is deemed
to be the child of the NH under section 216(h)(3)(C)(i)(I)-(III) of the Social Security
Act (the Act). G~ may be entitled to survivor’s benefits on the record of NH under
section 216(h)(3)(C)(i)(I)-(III) of the Act because she meets the statutory and regulatory
requirements of the Act, but the agency must make a factual finding as to her biological
parentage because G~’s birth certificate lists M~ as her father.
J~ and M~ were married on June 10, 2000 and they remain married. J~ states that they
were separated for five and a half years, during which time, the two children were
born. During their separation, J~ lived with E~ in M~, New York and M~ lived in Port
Jervis, New York.
In November, C~ was born in Suffern, NY to J~. No father was listed on the birth
certificate. In January 2004, J~ initiated paternity proceedings against the NH in
the Orange County Family Court (Family Court) concerning the paternity of C~. M~
was notified of the hearings and appeared at the proceedings, but he did not testify.
J~ and the NH appeared and testified. The NH admitted that C~ was his child. On
February 4, 2004, the Family Court ordered the NH to pay $50.00 per week in support
for C~ after the NH failed to contest the support proceeding. On March 8, 2004, the
Family Court issued an Order of Filiation finding that the NH was the father of C~
on the basis of NH’s admission of paternity.
In September, G~ was born in Middletown, NY to J~. M~ was listed on the birth certificate
as the father. In May 2009, J~ initiated paternity proceedings against the NH in
Orange County Family Court concerning the paternity of G~. M~ was notified of the
proceedings, but did not appear at the proceedings. J~ and the NH appeared and testified.
The NH admitted that G~ was his child. On the basis of that testimony, the Family
Court issued an Order of Filiation on May 5, 2009 finding that the NH was the father
of G~. On May 12, 2009, the Family Court modified its original G~’s Order of Support
to add G~ as a child for whom the NH was responsible for supporting. The Family Court
modified the NH’s child support obligation to $0.00 per week because he was unemployed.
J~ states that the children know that the NH is their biological father, but that
M~ has always acted as a father toward them.
On March 15, 2011, the NH filed for Social Security Disability benefits. He listed
C~ and G~ as his children on the application. The NH’s application was taken as a
telephone claim and was an attested application. The NH was approved for Social Security
Disability benefits on April 22, 2011. The NH died on September 18, 2011, while domiciled
in New York. On October 12, 2011, J~ filed for survivor’s benefits on behalf of C~
and G~ on the record of the NH.
A. Federal Law
To qualify for child’s benefits on the earnings record of an insured individual, an
applicant must be the “child” of the insured individual. The child must also (1) apply
for child’s insurance benefits; (2) at the time such application is filed be unmarried
and either be under age 18 or be under age 19 and a full-time elementary or secondary
school student, or over 18 and under a disability which began before he attained the
age of 22; and (3) be dependent on the NH. Act § 202(d)(1); 20 C.F.R. § 404.350.
See Act § 202(d)(1); 20 C.F.R. § 404.350(a) (2011). “Child” includes the natural child
of an insured individual. See Act § 216(e); 20 C.F.R. § 404.355 (2011). First, the Act provides that in determining
whether a claimant will be deemed the surviving child of an insured individual, the
Commissioner shall apply such law as would be applied in determining the devolution
of intestate personal property under the laws of the state in which the insured wage
earner was domiciled at the time of his death. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A);
20 C.F.R. §§ 404.355(a)(1), (b)(1) (2011). Because NH was domiciled in New York at
the time of his death, New York law regarding the devolution of intestate personal
Second, the Act permits a claimant to be deemed the child of an insured person if
the insured person and the mother or father of the child, as the case may be, participated
in a marriage ceremony resulting in a purported marriage which, but for a legal impediment,
would have been a valid marriage. There is no dispute here that J~ and the NH never
married. Act § 216(h)(2)(B); 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2) (2001).
Lastly, the Act provides that a claimant will be deemed the child of a fully insured
individual, if, in the case of a deceased individual, such insured individual had:
(I) acknowledged in writing that the applicant is his son or daughter; (II) been decreed
by a court to be the father of the applicant; or (III) been ordered by a court to
contribute to support of the applicant because the applicant was his son. Act § 216(h)(3)(C)(i);
42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3)(2011); see also, POMS GN 00306.100B.1. This section further states that the acknowledgment, court decree, or court order
must have been made before the death of the wage earner. Id. Under subsection (3)(C), the claimant may also be deemed the child of an insured person
if “such insured individual is shown by evidence satisfactory to the Commissioner
of Social Security to have been the mother or father of the applicant, and such insured
individual was living with or contributing to the support of the applicant at the
time such insured individual died.” Act § 216(h)(3)(C)(ii); 42 U.S.C. § 416(h)(3)(C)(ii).
When considering the status of an illegitimate child under section 216(h)(3) of the
Act, the child’s status under state law is irrelevant. POMS GN 00306.100A.1. Thus, a child may be eligible on an individual’s record even if he or she is
presumed to be the legitimate child of another person under state law. Id.
B. State Law
Effective April 28, 2010, New York State law of intestate succession, found in section
4-1.2(a)(2) of the N.Y. Estates, Powers & Trust Law (EPTL), was amended. The amended
section applies to estates of decedents dying on or after April 28, 2010. See 2010 Sess. Law News of N.Y. Ch. 64 (A7899-A), § 2 (Mckinney). That section holds that a nonmarital child may inherit from his father if any
of the following requirements are met:
A. a court of competent jurisdiction has, during the lifetime of the father, made
an order of filiation declaring paternity or the mother and father of the child have
executed an acknowledgment of paternity pursuant to section four thousand one hundred
thirty-five-b of the public health law, which has been filed with the registrar of
the district in which the birth certificate has been filed or;
B. the father of the child has signed an instrument acknowledging paternity, provided
(i) such instrument is acknowledged or executed or proved in the form required to
entitle a deed to be recorded in the presence of one or more witnesses and acknowledged
by such witness or witnesses, in either case, before a notary public or other officer
authorized to take proof of deeds and
(ii) such instrument is filed within sixty days from the making thereof with the putative
father registry established by the state department of social services pursuant to
section three hundred seventy-two-c of the social services law, as added by chapter
six hundred sixty-five of the laws of nineteen hundred seventy-six and
(iii) the department of social services shall, within seven days of the filing of
the instrument, send written notice by registered mail to the mother and other legal
guardian of such child, notifying them that an acknowledgment of paternity instrument
acknowledged or executed by such father has been duly filed or;
C. paternity has been established by clear and convincing evidence, which may include,
but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence
that the father openly and notoriously acknowledged the child as his own, however
nothing in this section regarding genetic marker tests shall be construed to expand
or limit the current application of subdivision four of section forty-two hundred
ten of the public health law.
Under EPTL § 4-1.2(a)(2)(C), clear and convincing evidence is “evidence which is ‘entirely
satisfactory’ and creates a genuine belief that respondent is the father of the child.”
Matter of Commissioner of Social Servs. v. Philip De G., 463 N.Y.S.2d 761, 763 (N.Y. 1983). Open and notorious acknowledgment is established
when the putative father openly acknowledges the child in his community. The open
and notorious prong of the intestacy statute is a factual one. See In Re Poldrugovaz, 851 N.Y.S.2d 254, 264 (App. Div. 2d Dept. 2008); see also Tumminia v. Savattere, 654 N.Y.S.2d 676, 677 (App. Div. 2d Dept. 1997) (disclosure to friends and relatives);
Matter of Anne v. Estate of Francis ,651 N.Y.S.2d 539, 540 (App. Div. 2d Dept. 1996) (acknowledgment of paternity in the
community in which the child lives); Matter of W~, 691 N.Y.S.2d 878, 879-80 (Sur. Ct., N.Y. County 1999) (disclosure to family, and
documentary references of paternity).
Here, we are not convinced that the New York State Court of Appeals would find that
C~ and G~ are the legitimate children of the NH for purposes of EPTL § 4-1.2(a)(2)(A).
The Family Court issued an Order of Filiation in March 2004 declaring that the NH
was the father of C~. In May 2009, the Family Court issued an Order of Filiation
declaring that the NH was the father of G~. Both Orders of Filiation were issued
during the NH’s lifetime. However, New York State law presumes that a child born
in wedlock is the natural legitimate child of the mother’s husband. N.Y. Dom. Rel.
Law § 24 (McKinney’s 2011); In re F~, 170 N.E. 471 (N.Y. 1930). That presumption may be rebutted by clear and convincing
evidence of paternity. Cheryl A. B. v. Michael A. D., 619 N.Y.S.2d 437 (N.Y. App. Div. 1994). Clear and convincing evidence may consist
of genetic testing to exclude the husband or testimony of non-access by one or both
of the spouses. Marilu T. v. Jose C.., 927 N.Y.S.2d 817, *2 (N.Y. Fam. Ct. 2011) (citing Ghanavi v. Gordon, 558 N.Y.S.2d 46 (N.Y. App. Div. 1990); Johnson v. Jones, 669 N.Y.S.2d 364 (N.Y. App. Div. 1998)).
The evidence before us does not establish that the presumption of legitimacy of C~
and G~ has been rebutted. First, there was no genetic testing performed. Additionally,
there is no evidence that M~ or J~ testified at the proceedings about non-access.
J~ stated that her husband was notified of the Family Court proceedings, but he did
not testify at either of the proceedings. She stated that she was present at the
proceedings, but she did not say whether she testified. The Orders of Filiation only
reference the testimony of the NH, who admitted that the children were his. Admission
of paternity by the putative father, without more, is not sufficient to rebut the
presumption of legitimacy. Erie County Dept. of Social Servs. o.b.o. Holmes v. Abdallah, 591 N.Y.S.2d 653, 653-54 (N.Y. App. Div. 1992). Accordingly, the Orders of Filiation
do not appear consistent with New York State law, and we are not convinced that the
highest court would uphold the March 2004 and the May 2009 Orders of Filiation for
the purposes of intestate succession pursuant to EPTL § 4-1.2(a)(2)(A).
Generally, the Commissioner must defer to the findings of a state trial court when
matters of domestic relations are involved. Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973). However, pursuant to Social Security Ruling
(SSR) 83-37c, the Commissioner is bound by an adjudication of a state trial court
only where the following prerequisites have been found: 1) an issue in a claim for
social security benefits previously has been determined by a state court of competent
jurisdiction; 2) this issue was genuinely contested before the state court by parties
with opposing interests; 3) the issue falls within the general category of domestic
relations law; and; 4) the resolution by the state trial court is consistent with
the law enunciated by the highest court in the state. See SSR 83-37c, adopting the
holding of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Here, because the Orders of Filiation do not appear
consistent with the law enunciated by the highest court in the state, the Commissioner
is not required to defer to those Orders of the Family Court. Without those Orders,
C~ and G~ are not eligible to inherit under EPTL § 4-1.2(a)(2)(A).
Further, there is no evidence that the NH filed an acknowledgement of paternity with
the putative father’s registry. Accordingly, C~ and G~ are not eligible to inherit
under EPTL § 4-1.2(a)(2)(B).
Similarly, because we do not believe that the presumption of legitimacy has been rebutted
by clear and convincing evidence of paternity, C~ and G~ are not eligible to inherit
under EPTL § 4-1.2(a)(2)(C). See In re Estate of W~, 691 N.Y.S.2d 878, 880-81 (N.Y. Sur. 1999) (where the child is born during the mother’s
marriage to another man, the presumption of legitimacy must be rebutted by clear and
convincing evidence of paternity before the child can inherit under EPTL § 4-1.2(a)(2)(C)).
Thus, C~ and G~ do not qualify as the children of the NH under section 216(h)(2)(A)
of the Act because they cannot inherit under New York intestacy law.
Nonetheless, C~ and G~ do qualify as the children of the NH under section 216(h)(3)
of the Act. As noted above, when considering the status of an illegitimate child
under section 216(h)(3) of the Act, the child’s status under state law is irrelevant.
POMS GN 00306.100A.1. Thus, a child may be eligible on an individual’s record even if he or she is
presumed to be the legitimate child of another person under state law. Id.
Here, C~ and G~ meet the requirements of all three prongs of section 216(h)(3)(C)(i)
of the Act. 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3)(2011).
First, C~ and G~ meet the requirements of prong (I) because the NH listed C~ and G~
as his children on his application for Social Security benefits, which qualifies as
a written acknowledgement. POMS GN 00306.105. The NH’s application qualifies as a written acknowledgement even though it was
taken telephonically because it was an attested application. See POMS GN
00201.015 and POMS GN 00306.105B.3.
Second, C~ and G~ meet the requirements of prong (II) because the Family Court decreed
in the Orders of Filiation that the NH is the father of the children.
Third, C~ and G~ meet the requirements of prong (III) because the NH was ordered by
the Family Court to contribute to the support of the children because they were his
Where a child qualifies under section 216(h)(3) of the Act, POMS GN 00306.100D.1 requires that the agency also consider any evidence showing that the NH is not
the biological parent. POMS GN 00306.100E.1 requires that the agency obtain birth certificates for any illegitimate children.
If the birth certificate shows the NH as the child’s parent or the space for the parent’s
name is blank, there is no need to raise the issue of biological parentage unless
other information in the file casts some doubt on the issue. POMS GN 00306.100E.2. However, where the birth certificate shows someone other than the NH as the child’s
parent, the agency must follow the guidelines in POMS GN 00306.125 to develop biological relationship. POMS GN 00306.125B.1.c. provides that additional evidence showing biological parentage may include: hospital,
church, or school records; a court decree or order; a statement from the attending
physician, relative, or person who knows the child’s relationship to the NH; evidence
that the NH and the child’s other parent were living together when the child was conceived;
or blood or genetic test results. The agency is instructed to use judgment in evaluating
the evidence, keeping in mind that it must establish biological parentage.
In this case, C~’s birth certificate does not list a father. Pursuant to POMS GN 00306.100E.1, there is no need to raise the issue of biological parentage. Thus, C~ is deemed
to be the child of the NH under section 216(h)(3)(C)(i)(I)-(III) of the Act.
The birth certificate for G~ lists M~ as the father. Under POMS GN 00306.100E.2, the agency must develop additional evidence showing biological parentage. In
this case, in addition to the written acknowledgment on the NH’s application for disability
benefits, there is an Order of Filiation, and a Child Support Order, which was modified
in 2009 to add G~ as one of the NH’s children. Both of these court orders are additional
evidence of paternity under POMS GN 00306.125B.1.c. Accordingly, the agency may choose to find that there is sufficient additional evidence
showing that the NH is the biological parent of G~, but that is a factual finding
for the agency.
Based on our review of the law and the facts you provided to us, we believe that the
evidence meets the statutory and regulatory requirements to show that C~ is the child
of the NH under sections 216(h)(3)(C)(i)(I)-(III) of the Act, and therefore entitled
to survivor’s benefits. As for G~, she may be entitled to survivor’s benefits on
the record of NH under section 216(h)(3)(C)(i)(I)-(III) of the Act because she meets
the statutory and regulatory requirements. But, consistent with POMS GN 00306.125B.1.c, the agency must make a factual finding as to G~’s biological parentage because her
birth certificate lists M~ as her father.
Mary Ann Sloan
Acting Regional Chief Counsel
Monika K. Proctor
Assistant Regional Counsel