You asked: (1) whether the claimant can qualify as a child of the wage earner for
purposes of intestate succession under California law, and (2) if so, the appropriate
entitlement date for benefits.
Based on the current record, claimant has not established the right to inherit intestate
from WE under California law.
However, we recommend further development. SSA should ascertain whether the WE directed
that he be named as the father on the claimant's birth certificate, because this might
be persuasive evidence of "holding out" under California law, as well as a written
acknowledgment of paternity under the federal method of establishing entitlement.
In addition, SSA should determine whether any evidence exists to corroborate or further
explain the handwriting on the birthday card.
SUMMARY OF EVIDENCE
The wage earner (WE) and claimant's mother were married from October 25, 1969 to June
30, 1986. They had four children during their marriage. The WE married his second
wife, Marilyn, on October 25, 1986.
The claimant's mother alleges that the WE continued to visit her after their divorce
and that they had sexual intercourse in July 1987.
On April 10, 1988, the claimant was born. Claimant and the WE have the same last name.
The WE was named as the claimant's father on the birth certificate, which was filed
with the county registrar on May 19, 1988.
On April 12, 1989, the WE had a heart attack and suffered a brain injury. He was incapacitated
and hospitalized until his death in California on March 2, 1990.1/
In April 1990, claimant's mother applied for survivors insurance for the claimant
on the WE's account. A copy of the claimant's birth certificate, which names the WE
as claimant's father, was submitted. On the "Child Relationship Statement"(form SSA-2519),
claimant's mother indicated that the WE did not give information for the child's birth
The record also included an undated letter from the Director of Medical Records at
Olive View Medical Center stating that the claimant's father was the WE.
According to a written statement signed by claimant's mother in l990, the WE referred
to himself as the claimant's father and he visited the claimant. She said that the
WE told her that he was going to name the claimant as his dependent on his employee
health insurance policy.
Claimant's mother also reported that the WE gave her money to help buy necessities
for the claimant. The claimant never lived with the WE and never visited him in his
According to written questionnaires completed in March 1990 by the children of the
former marriage between WE and claimant's mother, the WE, referred to himself as the
claimant's "daddy" and he told their grandmother (the WE's mother) and a family friend
("Uncle Ray") that he was claimant's father. The WE bought clothes and toys for claimant.
According to Kevin, one of the children, the WE took care of the claimant, and he
believed that had he lived, the WE would continue to take care of her. Another child,
Debra, stated that the WE had also said that he wanted to place claimant as a dependent
on his health insurance policy so that she could be seen by an eye specialist.
The WE's mother completed a questionnaire in April 1990. She stated that she never
asked the WE whether the claimant was his child. She said she did not believe that
the claimant was the WE's child. She claimed that the claimant's mother wanted to
"destroy" the marriage between the WE and his second wife Marilyn. However, the WE's
mother also stated that the WE once told her that claimant was her grandchild.
Ray, a friend of WE, also completed a questionnaire. He said that the WE told his
mother that the claimant was his child. He also said that the claimant's mother and
her children told him that the WE visited them often. He saw Christmas pictures of
the WE holding the claimant. Although he never spoke with the WE about the claimant,
he believed that the WE was claimant's father based on what he knew from others.
In August 1990, the Social Security Administration (SSA) denied the survivors insurance
In November 1998, the claimant, the claimant's mother, and two of the children of
the former marriage between the WE and claimant's mother (that is, the adult children
we know to be at least the claimant's half-siblings) gave samples of their blood for
DNA testing. The Laboratory Corporation of America, which is accredited by the American
Association of Blood Banks, conducted the genetic tests. The laboratory concluded
that, based on the tests of older children, their father was estimated to have a "probability
of paternity" for the claimant of 99.86% or a combined paternity index of 707 to 1.
On November 25, 1998, the claimant's mother applied for survivors insurance again.
In a report of contact with SSA, the claimant's mother stated that the WE gave her
cash after the claimant's birth and that he purchased clothes, toys, and furniture
for the claimant. She explained that the WE's purchases were not regular because he
was in a country western band and he would drop by after performances to give her
some money out of the pay he received. Sometimes he gave her $50 or $100.
Claimant's mother submitted a "one year old" birthday card which contained the handwritten
words, "From Dad, I love you." There was also a copy of an envelope which contained
the words, "So Big." The WE reportedly gave the card to the claimant, whom he reportedly
called "So Big." Claimant's mother also submitted photographs purportedly showing
the WE, holding the claimant at various functions. She submitted copies of 1989 calendars
which contained her handwritten notes. Claimant's mother also submitted a portion
of a letter allegedly written by the WE to her, but it was not signed or dated or
addressed to anyone.
Ray, the WE's friend, submitted a second statement signed in 1998. He said that the
woe's mother told him that the WE had told her that the claimant was his child. The
WE's mother also told Ray's wife that she signed a statement admitting that the WE
told her that he was the claimant's father.
In a letter dated May 1999, claimant's mother stated that the WE consented to the
claimant's use of his last name. He regularly visited the claimant and provided cash
and gifts. SSA denied claimant's November 1998 application. In September 1999, claimant's
mother requested reconsideration, which is currently pending.
A. California Law
The Commissioner's new regulations on applying state intestacy law, effective November
27, 1998, apply to this claim. 20 C.F.R. 404.354-404.355 (1999). If a state requires
a court order of paternity, SSA will not require the claimant to obtain a state court
order, but will evaluate the evidence and apply the state's standard of proof to determine
if the claimant can establish a right to intestate succession. In addition, SSA applies
the state's current law at the time of adjudication, or the version of the law at
any time since the WE's death, whichever is most favorable to the claimant.
Under California intestacy law, a parent-child relationship is established when:
(a) the relationship is presumed and not rebutted under the Uniform Parentage Act;
(b) the relationship may be established under any other provision of the Uniform Parentage
Act, except that the relationship may not be established by an action under 7630(c)
of the Family Code, unless (1) a court order declaring paternity was entered during
the father's lifetime, (2) paternity is established by clear and convincing evidence
that the father has openly held out the child as his own, or (3) it was impossible
for the father to hold out the child as his own, and paternity is established by clear
and convincing evidence. California Probate Code 6453(a) and (b).
Subsection (b)(3), which allows an additional method for establishing the relationship,
was added in 1993. Because it is more favorable to the claimant, the current version
of the law should be applied.
1. Presumed father status
The WE was not a presumed father of the claimant under the Uniform Parentage Act.
He did not sign voluntary declaration of paternity (California Family Code 7570).
He did not receive claimant into his home and openly hold the child out as his own
(California Family Code 7611(d) ). Although the WE and the claimant's mother were
married at one time, claimant was not born during the marriage (California Family
Code 7540). Claimant was born more than 300 days after their marriage terminated by
divorce (California Family Code 761l(a),(b)). The WE and claimant's mother did not
attempt to marry after the claimant was born (California Family Code 7611(c)).
Therefore, the parent-child relationship was not established under California Probate
2. Establishing paternity after death requires clear and convincing evidence
Claimant must show a parent-child relationship under California Probate Code 6453(b),
which requires either:
(1) a court order of paternity entered during the father's lifetime;
(2) clear and convincing evidence that the father openly held the child out as his
(3) if it were impossible for the father to hold the child out as his own, clear and
convincing evidence of paternity. Cheyanna v. A.C. Nielson Company, 66 Cal. App.-4th 855 (2nd Dist. 1998).
There was no court order of paternity entered during the WE's lifetime.
The claimant was about one-year old when the WE sustained a brain injury and it became
"impossible" for him to hold her out as his child. Therefore, the WE had opportunity
to openly hold her out as his child during the first year of her life.3/
According to California case law, a father holds a child out as his own when he openly
and publicly admits paternity where there might be some cost to him and he has demonstrated
some commitment toward establishing a parental relationship. See In Re Spencer, 48 Cal. App. 4th 1647, 1653-1655 (4th Dist. 1996). In Spencer , the court concluded that the alleged father had not openly held the child out as
his own. Although he had claimed paternity to some family and friends, he "was unwilling
to proclaim paternity when there might have been some cost to him." The alleged father
had not taken formal steps to place his name on the birth certificate, had not tried
to establish paternity by legal action, and had not assumed financial obligations
for child support. He had not demonstrated a commitment toward establishing and maintaining
a parental relationship. In Re Spencer, 48 Cal.App.4th at p. 1653-1655.
Applying these factors here, there is some evidence of "holding out." According to
claimant's mother, the WE consented to the claimant's use of his last name, and is
identified as the father on the claimant's birth certificate. He also visited claimant
in her home and referred to himself as her father in the presence of the mother and
their other adult children. He also gave some cash and gifts. He admitted to his mother
that the claimant was her grandchild.
However, this evidence is not clear and convincing. Apart from the fact that claimant
shares the WE's last name, the record does not clearly demonstrate that WE's maintained
a continuous or significant commitment, or that he publicly assumed the responsibilities
of parenthood. Claimant never lived with the WE and, the claimant never even visited
WE in his home. Also, his health insurance policy listed only his wife Marilyn, her
daughters (WE's stepdaughters) and the WE's son Kevin as dependents, but did not list
Furthermore, the certified abstract of birth, which was filed on May 19, 1988, probably
does not, by itself, constitute reliable evidence that the WE openly held out the
claimant as his child. The applicable section of the California Health and Safety
Code section in effect at the time did not require that a father sign a voluntary
declaration of paternity before his name could be placed on the birth certificate.4/
Former California Health and Safety Code section 10125. On the "Child Relationship
Statement" dated March 21, 1990, claimant's mother reported that the WE did not give
information for the child's birth certificate. Thus, claimant's mother may have placed
WE's name on the birth certificate without his consent or knowledge.
We therefore recommend that SSA re-contact claimant's mother to ask if there were
documents or affidavits signed by the WE and filed with the registrar of vital records
or county registrar, or if there is any other evidence that WE took affirmative steps
to place his name on the birth certificate. (Former California Health and Safety Code
sections 10521-10523 providing that delayed birth certificates must be supported by
documents and/or affidavits).
However, based on the evidence currently in the record, claimant did not establish
by clear and convincing evidence that the WE openly held her out as his child.
B. Federal Methods under 42 U.S.C. 416(h)(3)(C)
Under 42 U.S.C. 416(h)(3)(c), a claimant who cannot satisfy the requirements of state
law may try to qualify under the applicable federal methods5 by showing:
in the case of a deceased wage earner, either:
I. The deceased wage earner had acknowledged in writing that the claimant is his son
or daughter, or
II. The deceased wage earner had been decreed by a court to be the mother or father
of the claimant, or
III. The wage earner had been ordered by a court to contribute to the supp6rt of the
claimant because the claimant was his son or daughter;
and such acknowledgment, court decree, or court order was made before the death of
the wage earner,
(ii) the wage earner is shown by evidence satisfactory to the Commissioner to have
been the father of the claimant, and the wage earner was living with, or contributing
to, the support of the claimant at the time of his death.
There was no court order declaring paternity or ordering the WE to provide support.
Although there is evidence (the DNA test results) of their biological relationship,
WE never lived with the claimant. The WE reportedly gave cash to claimant's mother
and purchased clothes and toys for the claimant, but there was no proof of regular
contributions. Claimant's mother told an SSA representative that there was no regularity
to the cash WE gave her because he was in a country western band. However, Social
Security earnings records show that WE earned $46,000 in 1988. This evidence of WE's
financial circumstances indicates that he could have probably contributed some regular
support to the claimant during the first several months of her life.
Jones v. Chater, 101 F.3d 509, 513-514 (7th Cir. 1996) (sporadic support will not suffice because
the purpose of insurance benefits is to replace the support the child would have received
had the father not died).
Of course, WE was unable to provide any support during the second year of the claimant's
life, from April 1989 until the time of his death in March 1990. Some courts have
held that the support requirement must be considered in light of the father's circumstances
and ability to pay.
Chester v. Secretary of HHS, 808 F.2d 473, 476 (6th Cir. 1987). However, even taking the WE's illness into account
during the second year of claimant's life, he could have made regular contributions
to her support during the first year.
1. Written Acknowledgment
There is a remaining issue whether WE acknowledged in writing that the claimant was
An insured individual must by his own hand acknowledge paternity, or authorize a third
person to acknowledge paternity in writing. Jones v. Sullivan, 953 F.2d 1291, 1294-1295 (11th Cir. 1992); Garcia v. Sullivan, 874 F.2d 1006, 1008 (5th Cir. 1989). The writing should be a clear and unequivocal
statement acknowledging paternity. The adjudicator should evaluate whether the statement
is ambiguous and/or susceptible to more than one reasonable interpretation. If the
writing is ambiguous, Social Security may then look to extrinsic (outside) evidence
to resolve the ambiguity. Jones v. Sullivan, 953 F.2d at 1294-1295; Vance v. Heckler, 757 F.2d 1324, 1327 (D.C. Cir. 1985).
Here, there are two possible written acknowledgments. One is the birth certificate.
Under 20 C.F.R. 404.731 (1999), if the claimant is a natural child of the wage earner,
a copy of a public birth record which was made before the claimant turned five and
which shows the same last name for the claimant and wage earner is "convincing evidence"
of the relationship. If other evidence raises doubt about the birth record, SSA asks
for other evidence of the relationship.
In this case, it is unclear whether the birth certificate satisfies Section 404.73
1. First, the claimant has not proven that she is the "natural child" of the wage
earner as that term is defined in 20 C.F.R. 404.355 (1999) (see above, claimant must satisfy state intestacy law or one of the federal methods).
In addition, there may be "doubts" regarding the birth certificate because it is possible
the claimant's mother could have named WE as the father in May 1988 without his knowledge
or consent. Former California Health and Safety Code section 10125. On the "Child
Relationship Statement" dated March 21, 1990, claimant's mother reported that the
WE did not give information for the child's birth certificate. Barton v. Sullivan, 774 F.Supp. 1151, 1152
(S.D.Ind. 1991) (birth certificate that is not based on either the putative father's
acknowledgment of paternity, or a statement he is the father by one authorized by
him to acknowledge his paternity, will not constitute written acknowledgment). Parker v. Sullivan 891 F.2d 185, 190 (7th Cir. 1989); Garcia v. Sullivan, 874 F.2d 1006, 1008 (5th Cir. 1989) (birth certificate was not a written acknowledgment
of paternity where midwife filled out birth certificate naming the wage earner as
the father but there was no evidence which tended to prove that the wage earner authorized
the midwife to identify him as the father).
However, it is also possible that the WE authorized claimant's mother to name him
as the father on the birth certificate. There also may be documents and/or affidavits
that were prepared at the time of filing; in May 1988.6 The record contains an undated letter by a medical records director of the Olive
View Medical Center stating that WE was claimant's father, but it is unclear who supplied
this information. We recommend that SSA contact claimant's mother to determine whether
any additional information or other evidence concerning the birth certificate may
The second possible written acknowledgment is the birthday card allegedly signed by
the WE and allegedly addressed to the claimant which consists of the following handwritten
words, "From dad, I love you" and what appears to be a copy of an envelope with the
handwritten words "So Big."
In Vance v. Heckler, the court noted that a written acknowledgment did not even have to identify the
child by name or be signed by the wage earner. The court stated that extrinsic evidence
(that is, verbal statements or other evidence outside of the writing) can be used
to "complete the story" of the writing by confirming the identity of the author or
confirming the identity of the of the child who was the object of the writing. Vance v. Heckler, 757 F.2d at 1327.:D 2 ,
Although the handwritten statement "from dad" on the birthday card is an unambiguous
acknowledgment of paternity, it is incomplete because it was not signed by the WE
and there is no evidence that it was intended for the claimant. In addition, this
card was evidently submitted with the 1998 application, not the 1990 application,
which also raises a question as to its authenticity, particularly since the claimant's
mother stated in 1990 that she did not know of any letters by WE. We nevertheless
recommend that you ask for any additional evidence related to the card (e.g., a third
party who could identify the writing as WE's handwriting and/or know that he called
the claimant "So Big"). However, we caution that the fact-finder must evaluate the
credibility and reliability of the writing and extrinsic evidence concerning it.
Based on the current record, the claimant does not qualify as a "child" for purposes
of California intestacy law.
However, in light of the credible evidence of a biological relationship (DNA test
results), we recommend further development of the record as described above. We caution
that the fact-finder must evaluate the credibility and reliability of the writing
and extrinsic evidence concerning it.
1 Large portions of the file consist of the medical records of WE's illness. WE received
Social Security disability benefits from October 1989 until his death in March 1990.
His second wife Marilyn and the step-daughter received auxiliary benefits and then
survivors benefits on WE's account. Their benefits terminated in November 1994 and
November 1996, respectively.
2 At the time they completed these forms, they were young adults and/or late adolescents.
3 WE had an opportunity to openly hold the claimant out as his child for the one year
from her birth in April 1988 to March 1989. Tragically, he suffered a brain injury
which left him incapacitated until his death. He was thus unable to hold the claimant
out as his child from April 1989 to his death in March 1990. It should be noted that,
had it been impossible for the WE to hold the claimant out at any time, the DNA test
results might constitute clear and convincing evidence of paternity under Probate
Code Section 6453(b)(3). The test results are relevant and reliable evidence because
they were conducted by an accredited laboratory on several genetic systems and they
revealed a probability of paternity of 99.86%. California Family Code 7555. Although
there is no California court case on point concerning the testing of paternal relatives
(here, WE's adult children), it is likely that a California court would accept the
results as probative evidence, considering the advances in genetic tests. Nevertheless,
because the WE had ample opportunity to establish a relationship with claimant and
assume parental responsibilities during the first year of her life, it was possible
for him to hold the claimant out as his own child, and therefore, Section 6453(b)(3)
should not apply.
4 As of 1997, however, the California Health and Safety Code 102425 provides that,
if the parents are unmarried, the father's name shall not be listed on the birth certificate
unless the parents sign a voluntary declaration of paternity at the hospital before
the birth certificate is prepared. Section 102425 also provides that the birth certificate
may be amended to add the father's name at a later date only if paternity for the
child has been established by a judgment of a court of competent jurisdiction or by
the filing of a voluntary declaration of paternity.
5 42 U.S.C. 416(h)(2)(B) is not applicable here because the wage earner and claimant's
mother never went through a marriage ceremony after claimant's birth, although they
were previously married. They were divorced well before the claimant was conceived
6 In Brown v. Bowen, 668 F.Supp. 146, 148-150 (E.D. N.Y. 1987), the deceased wage earner had reportedly
signed an acknowledgment of paternity which was filed with the state department of
social services so that the claimant's mother could receive public assistance. The
writing no longer existed by the time the claimant's mother filed for Social Security
survivors benefits. The claimant's paternal grandmother (wage earner's mother) and
claimant's mother and aunt reported that the WE, the mother and other family members
had gone down to the welfare office and signed the form. The Court found that there
was sufficient evidence of a written acknowledgment based on the oral testimony of
witnesses who had personal knowledge of the contents of the destroyed public document
and corroboration from the state department that it destroyed inactive files.