QUESTION
You asked whether the claimant, who was born during a marriage between his mother
and his mother’s disabled husband and who is presently receiving child’s insurance
benefits (CIB) on the disabled husband’s earnings record, can receive CIB on the earnings
record of another number holder, now deceased, where DNA results indicate the deceased
number holder is the child’s biological father. The original request asked for an
opinion regarding whether the claimant’s mother committed fraud by filing a claim
for benefits on her disabled husband’s earnings record when she knew he was not the
biological father of the claimant. Subsequently, the Louisville, Kentucky Field Office
advised us we did not need to develop the fraud inquiry as the Social Security Administration
(SSA) was on notice in 1999 that the disabled husband did not believe the claimant
was his child.
OPINION
For the reasons stated below, we believe the evidence submitted in this case is sufficient
under Kentucky law to rebut the presumption of paternity of a child born during a
marriage and establish the deceased number holder as the child’s father under Kentucky
intestacy law. Consequently, an SSA adjudicator could find the claimant is the child
of the deceased number holder for CIB purposes.
BACKGROUND
According to the information provided, Dewey, a number holder entitled to disability
insurance benefits (NH1), and Lisa (Claimant’s mother) married on August XX, 1995. Corey
(Claimant) was born on February. Claimant’s birth certificate lists NH1 as his father. Claimant
became entitled to CIB on NH1’s earnings record in March 1999. In December 1999, Debra,
the mother of NH1’s first child, contacted SSA to protest the reduction in CIB for
her child due to Claimant’s entitlement to CIB on NH1’s earnings record. She alleged
Claimant was not NH1’s child, per report of NH1 and several other people.
When contacted by SSA, NH1 provided a statement in February 2000 in which he indicated
he and Claimant’s mother separated several times during their marriage, including
the period between March 1998 and June 1998, the likely period of Claimant’s conception,
and said he and Claimant’s mother had no marital relations during that period. NH1
indicated Claimant’s mother had an affair earlier in their marriage that resulted
in a pregnancy that ended in miscarriage. According to NH1, the man with whom Claimant’s
mother had the affair was Alvin, now deceased (NH2). NH1 stated Claimant’s mother
lived with her mother and NH2 between March and June 1998. NH1 stated Claimant’s mother
told him NH2 “forced himself” on her between March and June 1998. NH1 stated he did
not believe Claimant was his child. NH1 and Claimant’s mother indicated they contacted
the Jefferson County, Kentucky, County Attorney’s office to establish NH2 was Claimant’s
father, but because NH1 and Claimant’s mother were legally married, the County Attorney’s
office advised them they would have to hire their own attorney to file a civil action
to establish NH2 was Claimant’s father. They did not file a paternity action against
NH2. Despite NH1’s statements, SSA awarded Claimant CIB on NH1’s earnings record based
on Kentucky’s presumption that a child born in wedlock is the legitimate child of
his mother’s husband.
NH2 died on January XX, 2012, while domiciled in Kentucky. In February 2012, Claimant’s
mother filed a CIB claim for Claimant on NH2’s earnings record. Claimant’s mother
arranged for DNA testing of genetic samples from Claimant and NH2 the day following
NH2’s death. The DNA testing results revealed a 99.99% probability NH2 was Claimant’s
biological father. Claimant’s mother submitted these results to SSA in support of
Claimant’s claim. Claimant’s mother stated she knew NH2 was Claimant’s biological
father when she filed the application on Claimant’s behalf for CIB on NH1’s earnings
record. Claimant’s mother admitted she had contacted the County Attorney’s office
who advised she would have to hire her own attorney to file a paternity action against
NH2. Claimant’s mother also completed a child relationship statement (SSA 2519) indicating
NH2 filed an application with a government agency stating Claimant was his child,
he referred to himself as Claimant’s father in writing, listed Claimant as his child
in a family tree or other family record, took Claimant to a medical appointment and
listed himself as the parent, paid for Claimant’s hospital expenses at birth, admitted
orally he was Claimant’s father, and made regular and substantial contributions to
Claimant’s support. Claimant’s mother did not provide any of the written documentation
referred to in the SSA 2519.
DISCUSSION
To be eligible for CIB on the earnings record of a fully or currently insured deceased
individual, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2011). Unless otherwise
noted, all subsequent references to the C.F.R. are to the 2011 edition. “Child” includes
“the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354. A claimant may show he is “the child” of a deceased
individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or
216(h)(3)(C) Because we conclude that Claimant can qualify as NH2’s child under § 216(h)(2)(A)
of the Act, we do not address § 216(h)(3) here. of the Act. Under section 216(h)(2)(A),
a claimant must show he or she would be entitled to a child’s share of the insured’s
intestate personal property under the law of the state in which the insured was domiciled
at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). According to the information
provided, NH2 died while domiciled in Kentucky. Therefore, we look to Kentucky intestacy
law to determine whether Claimant is NH2’s child for purposes of section 216(h)(2)(A)
of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4).
Under Kentucky law, if NH2 died with kindred, his intestate estate would pass to his
kindred beginning with his surviving children. See Ky. Rev. Stat. Ann. §§ 391.010, 391.030 (West 2012); see also Fykes v. Clark, 635 S.W.2d 316, 317 (Ky. 1982) (“When a person dies intestate, both real and personal
property shall descend in common to his children or their descendants.”).
Although Claimant’s mother presented evidence suggesting Claimant is NH2’s biological
child, Claimant was born during the marriage of Claimant’s mother and NH1. Kentucky
law presumes a child born during lawful wedlock, or within ten months thereafter,
to be the child of the husband and wife. See Ky. Rev. Stat. Ann. § 406.011 (West 2012). This presumption is one of the strongest
presumptions known to law, but the presumption is not conclusive and may be rebutted
by factual evidence. See Bartlett v. Comm. ex rel. Calloway, 705 S.W.2d 470, 472 (Ky. 1986). For a person alleging paternity by someone outside
the marriage to overcome the presumption, he or she must present “evidence of the
strongest character, and so convincing as to remove the question of a reasonable doubt.” J.A.S. v. Bushelman, 342 S.W.3d 850, 859 (Ky. 2011) (quoting Ratliff v. Ratliff, 183 S.W.2d 949, 952 (Ky. 1944)) (internal quotations marks and emphasis omitted).
Genetic testing that shows a probability of paternity equal to or exceeding 99% also
creates a rebuttable presumption of paternity under Kentucky domestic relations law
that can be rebutted only be a preponderance of the evidence. See Ky. Rev. Stat. Ann. § 406.111 (2012). Further, Kentucky domestic relations law states:
“[g]enetic test results are admissible and shall be weighed along with other evidence
of the alleged father’s paternity.” Ky. Rev. Stat. Ann. § 406.091(3) (West 2012). In
B~, the Kentucky Supreme Court endorsed the use of DNA testing to establish paternity,
stating: “We see no justification for keeping the traditional presumption of paternity
locked in the science of centuries past. . . . DNA testing now serves as an appropriate
form of evidence, not to avoid the traditional presumption of paternity, but to rebut
it.” B~, 342 S.W. 3d at 861.
B~ arose when a putative father sued to establish paternity based on DNA testing that
showed a 99.9429% probability he was the biological father. Id. at 853. The B~ court held, even if a woman is married, a putative father has standing to maintain
a paternity suit if there is sufficient evidence to overcome the presumption of the
husband’s paternity. Id. at 864-65. The court relied on the DNA test results as well as the mother’s admission
she had a relationship with the putative father that included sexual intercourse during
the likely time of conception to rebut the presumption of paternity. Id. Kentucky courts have considered genetic test results in determining the husband’s
nonpaternity, along with other evidence, to rebut the presumption of paternity in
other cases. See, e.g., B~, 705 S.W.2d at 471 (genetic testing showing a 99.93% probability of the third party’s
paternity, wife’s testimony she had separated from her husband more than three years
before the child’s birth and she and the third party lived together on and off for
five years, the third party’s financial contribution to the child’s support, and a
physical genetic characteristic between the third party and the child (six fingers)
rebutted presumption); Spears v. Spears, 784 S.W.2d 605, 608 (Ky. Ct. App. 1990) (following divorce and order requiring husband
to pay child support, blood test showed the husband was not the father of the child,
and appeals court declined to apply the doctrine of res judicata, because prohibiting
the husband from challenging paternity would “work an injustice” and the record did
not show the husband ever held out the child as his or the wife had ever sought child
support).
Based on the above legal authority, we believe the evidence submitted in this case
is sufficient under Kentucky law to rebut the presumption of paternity of a child
born during a marriage. Although Claimant was born during the marriage of NH1 and
Claimant’s mother, the DNA testing and other evidence are sufficient to rebut the
presumption of paternity regarding a child born during wedlock. See B~, 342 S.W. 3d at 861. In addition to the DNA evidence, NH1 stated he and Claimant’s
mother were not living together and did not have sexual relations at the time of Claimant’s
possible conception, whereas NH2 reportedly lived with Claimant’s mother and had sexual
relations at that time. Both NH1 and Claimant’s mother expressed doubts about NH1’s
paternity of Claimant. Thus, we believe the evidence rebuts the presumption that NH1
is Claimant’s father.
Kentucky law provides that “a child born out of wedlock includes a child born to a
married woman by a man other than her husband where evidence shows that the marital
relationship between the husband and wife ceased ten (10) months prior to the birth
of the child.” Ky. Rev. Stat. Ann. § 406.011 (West 2012). The evidence rebutting the
presumption that NH1 was Claimant’s father also indicates the marital relationship
between Claimant’s mother and NH1 had ceased ten months before Claimant’s birth. Although
we have not found any Kentucky statute or case law discussing the determination of
inheritance rights of a child fathered by someone not a party to the marriage, we
believe a Kentucky court would treat Claimant as a child born out of wedlock and apply
Kentucky intestacy law for determining whether a child born out of wedlock is the
child of the putative father. See Program Operations Manual System (POMS) GN 00306.055 (illegitimate child has status of “child” under the Act if has inheritance rights
under applicable state intestacy law).
Under Kentucky intestate law, a person born out of wedlock is the child of his father
if:
(a) The natural parents participated in a marriage ceremony before or after the birth
of the child, even though the attempted marriage is void; or
(b) In determining the right of the child or its descendants to inherit from or through
the father:
Ky. Rev. Stat. Ann. § 391.105(1) (West 2012). Claimant could not qualify as NH2’s
child under subsection (a) of Ky. Rev. Stat. Ann. § 391.105 because NH2 and Claimant’s
mother did not marry or attempt to marry. The evidence also does not include an adjudication
of paternity as required by subsection (b) of Ky. Rev. Stat. Ann. § 391.105. However,
SSA does not require that a claimant obtain such a determination by a state court
but will use the standard of proof that the state court would use as the basis for
a determination of paternity. See 20 C.F.R. § 404.355(b)(2).
We believe a Kentucky court would conclude the evidence provides clear and convincing
proof that NH2 is Claimant’s father. Kentucky domestic relations law provides that
if a court finds that the statistical probability of paternity equals or exceeds ninety-nine
percent (99%) based on DNA testing, there is a rebuttable presumption of paternity. Ky.
Rev. Stat. § 406.111 (West 2012). This presumption shall only be rebutted by a preponderance
of the evidence. Id. Kentucky intestacy law provides that courts will consider DNA testing as one piece
of evidence to establish paternity posthumously. In Croucher v. Clark, No. 2005-CA-000736-MR, 2006 WL 1867909, at *1 (Ky. Ct. App. 2006), the plaintiff
attempted to establish paternity to collect a share of the proceeds from a wrongful
death claim. The Kentucky Court of Appeals considered test results comparing the DNA
of the putative father and the alleged daughter born out-of-wedlock (and prior to
a later marriage) that showed a 99.945% probability of paternity. See id. at *2-3. The court stated paternity was not established until the widow, and personal
representative of the father’s estate, “stipulated [to] that fact. Even after DNA
testing, the matter of paternity had not been established. The DNA test results were
merely proof in support of the allegation.” The court also said “the DNA testing appeared
to conclusively prove paternity,” but only after noting the widow who originally contested
paternity stipulated to such paternity. See id. at *3. The court concluded paternity was not established and the widow did not owe
a fiduciary duty to the daughter until the widow entered the stipulation. See id. Thus, the court required more than just DNA test results in making a determination
of paternity. See id. Another Kentucky intestacy case in which genetic tests were considered is Hibbs v. Chandler, 684 S.W. 2d 310, 313 (Ky. Ct. App. 1985). In H~, the plaintiff attempted to establish paternity to qualify her child for CIB on the
earnings record of the deceased number holder. The trial court ordered blood tests
on the mother, child and putative grandparents, the results of which showed the putative
father fell within the 64% to 99% probability range. Id. at 311-12. The Kentucky Court of Appeals found the blood test evidence, in conjunction
with the mother’s deposition testimony that she had intercourse with the putative
father around the probable date of conception, sufficient to withstand summary judgment. The
H~ court stated that “clear and convincing evidence” was not required at the summary
judgment stage. Id. at 312. Thus, H~ does not establish that DNA testing constitutes clear and convincing evidence, but
it shows the Kentucky courts do consider DNA testing in the intestacy context.
Although we have not found any Kentucky statute or case law directly on point, we
believe a Kentucky court would consider the DNA test results as evidence that Claimant
is NH2’s child for the purposes of Kentucky intestacy law although the results alone
would not presumptively establish paternity. Considering the DNA test evidence and
the statements of NH1, Claimant’s mother, and the mother of NH1’s first child, we
believe a Kentucky court would conclude clear and convincing evidence exists to establish
that Claimant is NH2’s child for the purposes of Kentucky intestacy law.
CONCLUSION
The evidence presented rebuts the presumption that Claimant is NH1’s child. The evidence
also provides clear and convincing proof that Claimant is NH2’s child under Kentucky
intestacy law. Therefore, an SSA adjudicator could conclude Claimant is NH2’s child
for the purposes of determining Claimant’s eligibility for CIB on NH2’s earnings record.
Mary Ann Sloan
Regional Chief Counsel
By: Megan E. Gideon
Assistant Regional Counsel