1. A Non-Marital Child’s Right to Inheritance under Md. Code Ann, Est. &
Trusts § 1.208
Maryland’s intestate succession law provides for inheritance by a decedent’s heirs, which includes a decedent’s children. See Md. Code Ann., Est. & Trusts §§ 1-101, 1-205 – 1-209, 3-101 - 3-103. It is our understanding that the Claimant’s mother and the NH were not married. Section 1-208 of the Maryland Estates and Trusts Code provides the following criteria for determining whether a non-marital child is entitled to intestate inheritance from a purported father as his child:
(b) A child born to parents who have not participated in a marriage ceremony with each other is the child of the parent who did not give birth to the child if:
1. The parent has been judicially determined to be the child’s father in an action brought under Title 5, Subtitle 10 of the Family Law Article, and that determination has not been modified or set aside; or
2. The parent and the child’s mother consented to the conception of the child by means of assisted reproduction with the shared express intent to be the parents of the child, subject to the conditions under § 1-205(a)(2) of this subtitle if the child is conceived after the death of the parent.
(c) There is a rebuttable presumption that a child born to parents who have not participated in a marriage ceremony with each other is the child of an individual who did not give birth to the child if the individual:
1. Has acknowledged himself or herself, in writing, to be a parent of the child;
2. Has openly and notoriously recognized the child to be the individual’s child; or
3. Has subsequently married the mother and has acknowledged himself of herself, orally or in writing, to be a parent of the child.
Md. Code Ann., Est. & Trusts § 1-208(b), (c) (effective Oct. 1, 2019, to present). See also Tyler v. Schweiker, 530 F.Supp. 1028, 1030 (D. Md. 1981) (noting that “Maryland decisions have consistently held that [section 1-208], although contained in the inheritance statute, is not limited in scope and application to matter of inheritance only, but instead is more in the nature of a general legitimating statute,” and further noting that “[t]his section does not require any legal determination as a prerequisite to the application of the statute”).
Here, there is no evidence of a court determination of parentage, no consent to conception by assisted reproduction, no written acknowledgment of parentage, and no evidence of open and notorious recognition of a child. See Md. Code Ann., Est. & Trusts § 1-208(b), (c). Thus, none of the methods for establishing a father-child relationship for intestate inheritance by a non-marital child appear to apply here based on the evidence provided.
However, the Social Security regulations do not require an applicant to obtain a State court adjudication to establish parentage. See 20 C.F.R. § 404.355(b)(2). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id. Thus, the Claimant must establish a parent-child relationship with the NH that would permit the right to inherit under Maryland intestate succession law under the standard of proof a Maryland court would use to determine paternity.
2. Paternity by a Preponderance of the Evidence under Md. Code Ann., Fam. Law §§
5-1001 – 5-1048
As noted above, section 1-208(b)(1) provides for a parent-child relationship where a parent has been judicially determined to be the child’s father in an action brought under Title 5, Subtitle 10 of the Family Law Article. Md. Code Ann., Est. & Trusts § 1-208(b)(1). Thus, we turn to the statutory provisions of the Family Law Article, Title 5, Subtitle 10 concerning paternity proceedings. See Md. Code Ann., Fam. Law §§ 5-1001 – 5-1048; see also Mulligan v. Corbett, 45 A.3d 243, 248 (Md. 2012) (noting that “[t]here is an interrelationship between the Estates and Trusts Article and the Paternity” provisions of the Family Law Article); Kamp v. Dept. of Human
Services, 980 A.2d 448, 454-455 (Md. 2009) (considering section 1-208 of the Estates and Trusts Code and noting that “[w]hen the child is ‘born out of wedlock,’ see Family Law § 5-1002(b), the applicable provisions are those found in §§ 5-1001 – 5-1048 of the Family Law Article.”). The burden is on a claimant to establish paternity by a preponderance of the evidence. Md. Code Ann., Fam. Law § 5-1027(a). Preponderance of the evidence means more likely than not. State v. Sample, 228 A.3d 171, 195 (Md. 2020); see also Coleman v. Anne Arundel County Police Dept., 797 A.2d 770, 781 n.16 (Md. 2002) (noting that the preponderance of the evidence standard of proof is defined in the Maryland Pattern Jury Instructions as follows: “To prove by a preponderance of the evidence means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means such evidence which, when considered and compared with the evidence opposed to it, has more convincing force and produces in your minds a belief that is more likely true than not true.”).
In terms of the type of evidence a court would consider, Maryland statutory law allows blood or genetic testing of the mother, child, and alleged father to establish paternity. See Md. Code Ann., Fam. Law § 5-1029. The law requires that genetic testing take place in a court-approved laboratory. Md. Code Ann., Fam. Law § 5-1029(c). The law requires that “[t]he laboratory shall report the results of each blood or genetic test in writing and in the form the court requires.” Md. Code Ann., Fam. Law § 5-1029(d).
The results of the genetic testing must also meet a certain threshold for admissibility. For admissibility as evidence, the laboratory report shall be admissible in evidence if: (1) definite exclusion is established; or (2) the testing is sufficiently extensive to exclude 97.3% of alleged fathers who are not biological fathers, and the statistical probability of the alleged father’s paternity is at least 97.3%. Md. Code Ann., Fam. Law § 5-1029(f)(2); see also Md. Code Ann., Fam. Law § 5-1038(a)(2)(i) (stating that a declaration of paternity may be modified or set aside if a blood or genetic test done in accordance with § 5-1029 establishes the exclusion of the individual named as the father in the order). A laboratory report received into evidence establishing a statistical probability of the alleged father’s paternity of at least 99.0% constitutes a rebuttable presumption of his paternity. Md. Code Ann., Fam. Law § 5-1029(f)(4).
The report must meet certain reliability and authenticity requirements to be admissible. The law provides that the laboratory report is admissible as evidence of paternity if (1) the doctor or technician that prepared the report is present, or (2) the report is signed by the doctor or technician who prepared or verified the report and the doctor or technician who prepared or verified the report states that the result of the test is as stated in the report. Md. Code Ann., Fam. Law § 5-1029(f)(3).
Here, we do not have genetic testing of the mother, the Claimant, and the NH; instead, we have the Grandparent DNA Report, which finds: “The alleged paternal grandfather, E~, could not be excluded as a biological grandfather of the child, [the Claimant], since they share genetic markers. Using the genetic markers found in the testing of the alleged biological grandfather, the probability he is the biological grandfather is 99.99%, as compared to untested, unrelated person of the Caucasian population. This study supports the allegation that a son of the grandfather is the biological father of the child.” Importantly, the Grandparent DNA Report finds only that “a son of the grandfather is the biological father of the child” and the NH’s on-line obituary indicates that he was survived by a brother (W~), which we assume was also the grandfather’s biological son.
Nothing in the Maryland statutory provisions concerning paternity proceedings or elsewhere in the Family Law Article address the use of genetic testing of an alleged father’s relatives to establish paternity of the alleged father. We are unaware of any Maryland cases discussing genetic testing of an alleged father’s relatives as proof of paternity. Given the absence of direct authority on point, we believe Maryland courts would require additional evidence, beyond genetic testing of a deceased man’s relatives, to establish paternity by a preponderance of the evidence particularly where the man has a biological brother who could also be the child’s father. We have no evidence that the NH, the Claimant’s mother, or the NH’s parents made any statements or undertook any actions consistent with the NH being the child’s father during the mother’s pregnancy with the Claimant or in the three months after his birth in May 2005 and before the NH’s death in August 2005. We have no information on the NH’s brother and his relationship with the Claimant’s mother. We have no information on the Claimant’s mother, including whether she is or was married to anyone else. We have no information on the Claimant’s living situation at the time of his birth and throughout his childhood or the Claimant’s relationship with the NH’s parents. The NH’s on-line obituary does not list the Claimant as one of his surviving children despite the fact that he was alive when the NH died.
Accordingly, based only on the Grandparent DNA Report, we believe Maryland courts would find that the Claimant has not established by a preponderance of the evidence that the NH is his father. As such, we believe Maryland courts would find that the Claimant was unable to inherit from the NH as his child under Maryland intestate succession law. See Md. Code Ann., Est. & Trusts § 1-208(b)(1).