During the last three years of his life and at the time of his death, the NH was domiciled in Minnesota. It is our opinion that the intestacy laws of the State of Minnesota are applicable in this case.

Although a parent-child relationship exists in some circumstances of assisted reproduction, Minnesota’s current intestacy law explicitly excludes children of assisted reproduction that are posthumously conceived stating that a parent-child relationship does not exist between a child of assisted reproduction and another person unless the child of assisted reproduction is in gestation prior to the death of such person. The children were not in gestation until October 2013, which was three months after the NH’s death in July 2013. In this case, the posthumously conceived children could not inherit from the NH under Minnesota law and the children are not entitled to CIB on the NH’s earnings.

Question Presented

You asked us whether the Number Holder’s (NH’s) two posthumously conceived children have inheritance rights under the applicable State’s intestacy law and therefore would be entitled to child’s insurance benefits (CIB) on the NH’s earnings record.

Short Answer

It is our opinion that the intestacy laws of the State of Minnesota are applicable and that the posthumously conceived children could not inherit from the NH under Minnesota law. As such, the children are not entitled to CIB on the NH’s earnings.

Background

The NH married A~ in Minnesota in April 2012. The NH and A~ resided together in Minnesota until the NH’s death, which was in July 2013. However, A~ later conceived two of the NH’s children through artificial means. Shortly before beginning treatment for leukemia in June 2010, the NH had deposited samples of his semen at a sperm bank for cryopreservation. A~ underwent in vitro fertilization in October 2013 and gave birth to twins, B~ and L~, in May 2014. In December 2014, A ~ filed an application seeking CIB on the NH’s earnings record for B.S. and L.S.

Discussion

An individual may be eligible for CIB if he is the “child” of the insured as defined in section 216(e) of the Act, and was dependent upon the insured individual at the time of his death. Social Security Act (Act) § 202(d)(1)(C), 42 U.S.C. § 402(d)(1)(C); 20 C.F.R. § 404.350.^[1] As relevant here, in determining the child-parent relationship status for the purposes of CIB, the agency looks to the intestacy law of the State in which the insured individual 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); see also Astrue v. Capato ex rel. B.N.C., 132 S.Ct. 2021 (2012); POMS GN 00306.001(C)(1)(c) (a child conceived by artificial means after the insured’s death can only be entitled to CIB if he has inheritance rights under applicable state intestacy law).

Although you requested our analysis of intestacy under North Dakota law, we do not have any information suggesting that the NH resided anywhere other than Minnesota during the last three years of his life. The NH and A~ were both residents of Minnesota when they married in April 2012, and they continued living there together in Minnesota until the NH’s death in July 2013.^[2] At the time of his death, the NH was domiciled in Minnesota. Accordingly, the child-relationship status of B~ and L~ should be determined under Minnesota law.

In determining whether a natural child can inherit the insured’s property, the agency applies the version of state law that is in effect when the claim is being adjudicated. 20 C.F.R. § 404.355(b)(4).^[3] For the purpose of intestate successions, Minnesota requires the existence of a parent-child relationship as statutorily defined. Minn. Stat. § 524.2-116. In 2010, the Minnesota legislature enacted provisions specifically addressing children conceived by assisted reproduction. See Minn. Stat. § 524.2-120. Although a parent-child relationship exists in some circumstances of assisted reproduction, Minnesota’s current intestacy law explicitly excludes children of assisted reproduction that are posthumously conceived:

a parent-child relationship does not exist between a child of assisted reproduction and another person unless the child of assisted reproduction is in gestation prior to the death of such person. Minn. Stat. § 524.2-120(10).

B~ and L~ were not in gestation until October 2013, which was three months after the NH’s death in July 2013. Accordingly, B.S. and L.S. could not inherit from the NH under Minnesota’s intestacy law and are not eligible for CIB under the Act.

Conclusion

Since B~ and L~ could not inherit from the NH under Minnesota intestacy law, they are not eligible for CIB under the Act.

John J. Lee

Regional Chief Counsel, Region VIII, Denver

By: Jessica Milano

Assistant Regional Counsel

Under Minnesota law, a child inherits from his natural parents regardless of their marital status. Relatives of the decedent conceived before death but born thereafter inherit as if they had been born in the lifetime of the decedent.  The twins would be considered the NH’s heirs for purposes of inheritance as of the date of the NH’s death. 

Additionally, entitlement to child's benefits, if the insured is deceased, begins the first month covered by the application in which all other requirements for entitlement are also met. The regulations further provide that children filing as survivors may receive retroactive benefits on the record of the deceased NH for up to six months beginning with the first month in which all requirements are met. Therefore, it is our opinion that the twins may be found entitled to benefits retroactive to their birth in October 2010. 

You asked whether the twin children of the number holder (NH), B~, III, who were born approximately one month after the NH died, would be entitled to benefits as of the date genetic testing was conducted which established paternity or if they could enjoy some sort of retroactive entitlement to benefits. For the reasons discussed below, we conclude that the act establishing inheritance rights, namely the genetic testing, relates back to the death of the decedent as a matter of state law. 

Background

The NH died on September XX, 2010. On October XX, 2010, K~ gave birth to twin children. On January XX, 2011, genetic testing of each child concluded that the probability of the NH’s paternity was 99.99%. On February XX, 2011, K~ applied for children’s benefits on the NH’s record on behalf of her twin children and furnished the genetic testing results with the application for benefits. Based on this evidence, action was taken to entitle both children to child’s benefits on the NH’s account effective January 2011. 

Discussion

The Social Security Act provides that a child born to parents who do not marry can qualify for surviving child’s benefits if the child is entitled to inherit personal property under such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(a)(2)(A). In the present case, the NH was domiciled in the State of Minnesota at the time of his death and therefore, Minnesota intestacy law applies. 

You have already determined that a Minnesota court would find that the DNA test results the children’s mother submitted would constitute clear and convincing evidence of paternity. Benefits have been awarded effective January 2011. The question is whether they may be entitled to any benefits prior to that date.   

Under Minnesota law, a child inherits from his natural parents regardless of their marital status. M.S.A. 524.2-109(2). Relatives of the decedent conceived before death but born thereafter inherit as if they had been born in the lifetime of the decedent. M.S.A. § 524.2-108. Here, the twins would be considered the NH’s heirs for purposes of inheritance as of the date of the NH’s death. See In re Bulter’s Estate, 284 N.W. 889 (Minn. 1939) (an heir becomes an heir at the time of death of the ancestor in question).  

Entitlement to child's benefits, if the insured is deceased, begins the first month covered by the application in which all other requirements for entitlement are also met. See 20 C.F.R. § 404.352(a). The regulations further provide that children filing as survivors may receive retroactive benefits on the record of the deceased NH for up to six months beginning with the first month in which all requirements are met. See 20 C.F.R. § 404.621. Accordingly, if all requirements were met in February 2011, their application date, may be twins are entitled to benefits as early as October 2010, when they were born. 

Conclusion

For the reasons stated above, it is our opinion that the twins may be found entitled to benefits retroactive to their birth in October 2010. 

Donna L. C~

Regional Chief Counsel, Region V

By: Ann M~

Assistant Regional Counsel

In a case where the claimant was awarded benefits as the child of the number holder based on the presumption of legitimacy but a subsequent DNA test showed a 99.9509% probability that another man was the claimant's father and order of divorce declared the number holder not to be the father, a Minnesota court would likely rule that the claimant cannot inherit from the number holder, based on that new evidence. The new evidence also provides a sufficient basis to reopen and revise the award of child's benefits on the number holder's account.

Additionally, the evidence provided is also sufficient for the court to rule that the other man is the claimant's father, that the relationship is retroactive to the birth of the claimant, and to permit the awarding of child's benefits on that worker's record.

J~ was awarded child's benefits, effective June 2006, on the record of J2~. J2~ was presumed to be J~'s father because J2~ was married to J~'s mother at the time of J~'s birth. However, DNA tests now show a 99.9509% chance that P~ is J~'s biological father. And, even more recently, J~'s mother and J2~ were granted a divorce, and the court found, in its order granting the divorce, that J2~ is not J~'s father.

An application has now been filed for child's benefits on P~’s record, as well. You asked whether the DNA test is sufficient to rebut the presumption that J~ is P~'s child, or whether SSA should continue to pay J~ child's benefits on J2~'s record, based on the presumption of legitimacy. We conclude that a Minnesota court would most likely rule, based on the DNA test results and other evidence in the record, that J~ cannot inherit from P~ as his child. Therefore, the DNA test results provide a basis for reopening and revising the award of benefits on P~'s account. Furthermore, we believe that a Minnesota court would now likely find that J~ is J2~’s child and that this finding would relate back to J~'s birth, so that J~ would be entitled to benefits on J2~’s account even before the DNA test results were obtained.

Background

J~'s mother married J2~ in 1984. J~ was born during the marriage in 1997. J2~ is listed as J~'s father on J~'s birth certificate and on J~'s SS-5. J~ was awarded child's benefits on J2~'s record effective June 2006, based on an application filed that month.

In February 2007, DNA testing showed a 99.95% probability that P~ is J~'s biological father. J~'s mother has stated that she and J2~ were separated at the time of J~'s conception, and that she developed a relationship with P~ in 1995.

In October 2008, a court issued an order granting J~'s mother and J2~ a divorce. In the divorce order, the court found that J~ was born during the marriage, but that J2~ did not have sexual intercourse with J~'s mother during the possible time of conception and that J~'s mother did have sexual intercourse during that time with the person (presumably P~) who was determined, by blood tests, to have a probability of parentage of 99.95 %. The court found that "for these reasons and by the agreement of the parties" J2~ "is not the biological father" of J~. The court ordered that J~'s mother and J2~ had joint custody of another child born during the marriage, who the court found is J2~'s child. The court further ruled that, although J~ "is not the child of J2~, the parties agreed that J~ should accompany "his half-sister" when she is in J2~'s custody.

You indicated that J~'s mother plans to request that J~'s birth certificate be amended. You informed us that P~ has asked to be named on the birth certificate and wants to rename J~'s middle name (presumably using his own last name). However, you indicated that J~'s mother was advised to complete the divorce proceedings before adjudicating the paternity issue in court. It appears that no separate paternity action has yet been filed.

You informed us that J~ has bonded with both J2~ and P~ and apparently considers J2~ to be his "dad" and P~ to be his "father." You previously advised that J~ was living part-time with his mother and part-time with J2~ (which appears consistent with the divorce order), and that J~ also sees P~ twice a week. J~ does not have a relationship with P~’s family, but he has a relationship with J2~'s mother and sister.

Everyone involved is domiciled in Minnesota.

Discussion

Under section 216(h)(2) of the Social Security Act, a child is entitled to benefits on the earnings record of an insured individual if the child could inherit the insured's property as his or her natural child under the intestacy laws of the state in which the insured was domiciled at the time of the application. 42 U.S.C. § 416(h)(2); see also 20 C.F.R. § 404.355(a)(1). If state inheritance law requires a court determination of paternity, the Agency does not require the claimant to obtain a court determination, but decides paternity using 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. If a child would not qualify as a child of the insured under the State law in effect at the time the child's application was filed, the Agency must look at all versions of State law that were in effect from the first month for which the child could be entitled to benefits up until the time of the final decision and apply the version of State law that is most beneficial to the child claimant. 20 C.F.R. § 404.355(b)(3). Here, we must determine whether J~ still could inherit from J2~, as well as whether J~ could now inherit from P~

To inherit from J2~ as his child, J~ would need to rely on the Parentage Act's presumption of paternity based on J2~'s marriage to his mother at the time of his birth. See MINN. STAT. ANN. § 257.55(1)(a). However, we believe that a Minnesota court would likely find that P~, rather than J2~, is J~'s father under the Parentage Act, based on the new evidence now available.

We note first that the divorce decree would not be decisive in such a case. A court determination of non-paternity is usually binding for all purposes. See MINN. STAT. ANN. § 257.66(1). However, the Minnesota Supreme Court has held that, if the child is not a party to a paternity action, the child is not bound by the decision in that case and can bring a separate action to establish paternity. See Johnson v. Hunter, 447 N.W.2d 871, 874, 876 (Minn. 1989). Here, it does not appear that J~ was a party to the divorce proceeding. Nor was he represented in that action. Therefore, J~ would not be bound by any finding in the court's order and could attempt to inherit from J2~ under the Parentage Act based on the presumption of paternity. Nevertheless, it appears that, even if the court were to consider the issues anew, the court would still likely find that P~, rather than J2~, is J~'s father.

The Minnesota Supreme Court has recently held that, in an inheritance action:

When a party benefits from a Parentage Act presumption of paternity and relies on that presumption to establish paternity in a probate proceeding, the party has chosen to establish paternity under the Parentage Act, as expressly authorized by the Probate Code. See Minn. Stat. § 524.2-114. In such a situation, the provisions of the Parentage Act must apply in their entirety.

Estate of Jotham, 722 N.W. 2d 447, 452 (Minn. 2006). The Court further held that a court can entertain an effort to rebut a presumption of paternity in an inheritance proceeding only if "the party seeking to rebut a paternity presumption would not be barred by the standing or timeliness requirements in [MINN. STAT. ANN. §] 257.57 from bringing an action to declare the nonexistence of the presumed father-child relationship." Estate of Jotham, 722 N.W. 2d at 455. The time for bringing an action to establish J2~'s non-paternity lapsed, at the latest, in 2001 (three years after J~'s birth). See MINN. STAT. ANN. § 257.57(1)(b) (presumption of paternity based on marriage to mother of child lapses three years after the child is born). After that time, no one could bring an action to establish that J2~ is or was not J~'s father. While SSA ignores time limits placed on claimants for establishing paternity, 20 C.F.R. § 404.355(b); POMS GN 00306.075(B)(3), we have confirmed with the Office of Income Security Programs that SSA does not ignore state law time limits for establishing non-paternity. Therefore, the court would not consider an allegation that J2~ is not J~'s father.

However, while an action to establish non-paternity is time-barred, an action to establish paternity based on DNA evidence can be brought at any time by the child, the child's mother, or the man alleging himself to be the father based on the presumption arising from the DNA test results. WIS. STAT. ANN. § 257.57(2)(1). Therefore, J~, J~'s mother, or P~ could, in theory, bring an action at any time to assert that P~ is J~'s real father (which effectively would also establish that J2~ is not the father). Although we did not find any cases directly on point, it appears that any one of these individuals could potentially assert, in the inheritance proceeding for J2~, that P~ is J~'s real father. In this way, the inheritance court would be able to consider that someone other than J2~ is J~'s father under the Parentage Act. See Dorman v. Steffen, 666 N.W.2d 409, 411-12 (Minn. App. 2003) (actions to establish paternity may be brought at any time, even though the effect is to declare the non-paternity of a presumed father and the action is brought past the time to bring an action to establish non-paternity of a presumed father).

We assume that J~ would not assert that P~ is his real father if he were attempting to inherit from J2~ as his son. However, if J~ were attempting to inherit from J2~ as his son under the Parentage Act, then, according to the Jotham decision, all provisions of the Parentage Act would apply to the case. Estate of Jotham, 722 N.W. 2d at 452. Under the Parentage Act, J~’s mother would be made a party to the action, if still living and subject to the jurisdiction of the court where the inheritance proceeding would be held (which she would be at least at this point in time). See WIS. STAT. ANN. § 257.60. Although we did not find any cases on this specific issue, we assume that, under the holding in the Jotham decision and under the plain language of the Parentage Act, J~'s mother would be made a party to the inheritance proceeding on J2~'s estate, not as a potential heir, but as a necessary party under the Parentage Act, since J~ would be proceeding under that Act to establish paternity.

Once J~'s mother were made a party to the action she would, presumably, assert that P~, and not J2~, is J~'s father, since to take any other position would be inconsistent with her position in the divorce proceeding against J2~. In fact, she may now be estopped from taking any other position. See Markert v. Behm, 394 N.W.2d 239, 241-42 (Min. App. 1986) (ex-wife precluded by collateral and equitable estoppel, as well as res judicata, from challenging ex-husband's paternity where she was party to prior divorce action finding him to be the child's father). At that point, P~ would also be made a party to the action. See MINN. STAT. ANN. § 257.60 (any man alleged to be the biological father shall be made a party to the action if subject to the court's jurisdiction). If SSA credits the information provided to us, it appears that P~ would not contest the allegation that he is J~'s father.

Since J~'s mother would be asserting that P~, rather than J2~, is J~'s father, and since it appears from the information you provided that P~ would also try to establish that he is J~'s father, the court would be faced with competing presumptions of paternity: (1) the presumption, under MINN. STAT. ANN. § 257.62(5)(b), that P~ is J~'s father, based on the DNA test results; and (2) the presumption under MINN. STAT. ANN. § 257.55(a)(1), that J2~ is J~'s father because J2~ was married to J~'s mother at the time of J~'s birth.

Under the Parentage Act, "[i]f two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls." MINN. STAT. ANN. § 257.55(2). Under Minnesota law, none of the presumptions is necessarily weightier or controlling. See Witso v. Overby, 609 N.W.2d 618, 620-21 (Minn. App. 2000), aff'd 627 N.W.2d 63 (Minn. 2001), cert. denied 534 U.S. 1130 (2002). However, the case law is instructive as to which factors courts consider most important in determining which presumption should control in particular cases.

In In re C.M.G., 516 N.W.2d 555 (Minn. App. 1994), the court found that, on the particular facts of that case, the presumption of paternity based on a declaration of parentage was weightier than the presumption of paternity based on blood/DNA testing. In that case, the man who had executed the declaration of parentage wanted to be the father and was willing and able to support the child; the child viewed that man as his father and had bonded with him, as well as the man's parents; and the man presumed to be the father based on blood/DNA test results did not want to develop a paternal relationship with the child. Id. at 561.

In Paternity of BJH v. MTH, 573 N.W.2d 99 (Minn. App. 1998), both the man who was married to the child's mother and the man who was the biological father, according to blood tests, petitioned to be the child's father. The court ruled in favor of the biological father. The court listed several reasons for its decision, including the fact that the man was the biological father; he wanted a relationship with the child; he introduced the child as his own; there were doubts about the continued stability of the marriage between the mother and the other man; the child would eventually want to know his biological father; and the child was young enough to establish a relationship with the biological father, even though he had spent the majority of his life to that point with the other man. Id. at 103.

In State v. Thomas, 584 N.W.2d 421 (Minn. App. 1998), neither the man presumed to be the father based on blood tests nor the man presumed to be the father based on marriage wanted to be named as the father of the child at issue. In that case, the court also found that the biological father should be adjudicated to be the father, since he could not avoid his obligation to support his child by arguing that another man would be a better parent. The court also noted that there is a policy of not impairing blood relationships and that the marriage between the mother and the man presumed to be the father based on marriage had ended. Id. at 425.

It is not entirely clear how a court would weigh the factors in this case. J~ has developed a relationship with both men and considers one to be his "dad" and the other to be his "father." Some factors weigh in favor of finding that J2~ should be named the father, since J~ lives part-time with J2~, whereas he sees P~ twice a week but does not live with him; and J~ has a relationship J2~'s mother and sister, but does not have a relationship with P~’s family. However, the court seems to weigh the biological relationship very heavily, and seems to find that the biological father should be named as father unless the biological father does not want to be the child's father and another man who is presumed to be the father is willing and able to be the child's father and has developed a relationship with the child. See In re C.M.G., 516 N.W.2d 555; Paternity of BJH, 573 N.W.2d 99; Thomas, 584 N.W.2d 421. Here, if you credit the evidence in the record, it appears that P~ would like to be named as J~'s father. Furthermore, it appears that J2~ does not want to be considered J~'s father, since he has agreed to a court order finding that he is not J~'s father. Based on these facts, we believe that a Minnesota court would likely find P~ should be named J~'s father under the Parentage Act.

Thus, it is likely that, in an inheritance proceeding on J2~'s estate, the probate court would consider the competing presumptions of paternity and find that P~, rather than J2~, is J~'s father. Under Minnesota law, a determination of the existence or nonexistence of the parent and child relationship under the Parentage Act is determinative for all purposes, and the court must order a new birth record be issued consistent with the determination. MINN. STAT. ANN. § 257.66(1)-(2) (West 2007). Thus, any determination under the Parentage Act that P~ is J~'s father would "legitimate" J~ and relate back to his birth. For these reasons, the DNA test results would provide a basis for reopening the award of benefits on J2~'s account and denying that claim for benefits. See 20 C.F.R. §§ 404.988(b), 989(a)(1) (determination can be reopened within four years based on new and material evidence); POMS GN 04010.030.

By the same token, if J~ attempted to inherit from P~ as his son, the court would likely conclude that the DNA evidence, together with other evidence of record, is sufficient to find that J~ is P~’s child under the Parentage Act. Since that finding would relate back to J~'s birth, he would be entitled to benefits on P~’S record even before the DNA tests were performed. See POMS GN 00306.050 (child legitimated after birth is considered legitimate from birth). Accordingly, it would be reasonable to reopen the award of benefits on J2~'s account, based on the DNA evidence and the other new evidence, and find that P~, rather than J2~, is J~'s father.

Conclusion

In sum, we conclude that a Minnesota court would likely rule that J~ cannot inherit from J2~ as his child, based on the new DNA and other evidence provided. The new evidence, therefore, provides a sufficient basis to reopen and revise the award of benefits on J2~'s account. We further conclude that a Minnesota court would likely find that J~ should be considered P~’s child, for purposes of inheritance, and for all purposes, relating back to his birth. Therefore, J~ would be eligible for benefits on P~’s account as his child even before the DNA test results were obtained.

Donna L. C~

Regional Chief Counsel, Region V

By: Suzanne D~

Assistant Regional Counsel

A blood test establishing a 99.27% probability that the NH is the child's father constitutes clear and convincing proof of paternity under Michigan law. Since such proof would allow the child to prevail in a Minnesota paternity proceeding, the child would have inheritance rights from the NH, D~, ~ RAV [W~] to Director, RSI/SSIB 07/09/91

This is in reference to your April XX, 1991 request for a determination as to whether blood tests administered to the father and brother of D~, deceased, establish that D~ was the father of N~ under Minnesota law.

In November of 1986, C~, N~'s mother, completed a paternity questionnaire with the intention of filing a paternity suit in the county court system. On that questionnaire, C~ listed D~ as the putative father. The Dakota County Attorney asked D~ to submit to parentage blood testing, but D~ died on August XX, 1987, before the tests were administered.

C~'s attorney arranged for Genetic Design, Inc. to test the blood of G~ and R~, D~ 's father and brother, respectively. G~'s blood was drawn on December XX, 1989 and April XX, 1990. The lab took blood from R~ on March XX, 1990. Genetic Design, Inc. purports to be accredited by the Parentage Testing Committee of the American Association of Blood Banks. The results of the tests established a 99.27% probability that D~ was N~'s father, which result was calculated with a prior probability of 0.5. On October XX, 1990, C~ filed an application for child's benefits on behalf of her daughter.

N~ is entitled to benefits if, under Minnesota's intestate succession laws, she is eligible to inherit from D~. Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h}{2){A). Under Minnesota law,

[a] child born to a mother who was not married to the child's father when the child was conceived nor when the child was born shall inherit . . . from the person who has been determined to be the father of such child in a paternity proceeding before a court of competent jurisdiction.

Minn. Stat. Ann. § 525.172.

A Minnesota Supreme Court case held that the illegitimate child of a deceased father properly would inherit under § 525.172 if the child could commence and prevail in a paternity proceeding. Weber v. Anderson, 269 N.W.2d 892 {Minn. 1978). ^[4] The Weber court ruled that "clear and convincing proof by the plaintiff that the putative father was in fact the father" was required and that such proof will be shown "where the truth of the facts asserted is 'highly probable." 269 N.W.2d at 895.

Minnesota law favors the use of blood tests as the most accurate and efficient means of determining paternity. Vaughn v. Love, 347 N.W.2d 818, 822 {Minn. 1984), citing Benson v. LaBatte, 288N.W.2d 684, 686 (Minn. 1979). A man will be presumed to be the biological father of a child if blood testing establishes that the likelihood that the man is the father is 99 percent or greater {calculated with a prior probability of no more than 0.5). Minn. Stat. Ann. § 257.55(1)(f) (1989).

The blood tests administered to D~'s father and brother established that there was a 99.27% probability that D~ was in fact the father of N~ . In our opinion, a 99.27% probability constitutes a "high probability." Under the Weber standard, if a fact is "highly probable," then there exists "clear and convincing proof" that that fact is true. Thus, the blood tests constitute clear and convincing proof that D~ fathered N~. Armed with such proof, N~ would prevail in a paternity proceeding in Minnesota, again under Weber. Under § 525.172 of the Minnesota statutes, if she can prove in a paternity proceeding that D~ was in fact her father then she rightfully will inherit from him.

Because it appears that N~ would be entitled to inherit from D~ under Minnesota's intestate succession laws, it is our opinion that she may receive survivor's benefits as a result of his death.

MINNESOTA — A posthumous court order of paternity in Minnesota establishes the right of an illegitimate child to inherit from his biological father. (T~, RAV(W~) to ARC, Progs. 03/21/91)

You have asked whether J~ is entitled to surviving child's benefits on the account of T~ where the court order establishing paternity was entered after the wage earner's death. For the following reasons, we find that J~ is entitled to surviving child's benefits as T~'s child.

FACTS

T~ died a suicide on February 20, 1988. At the time of his death he was domiciled in Minnesota.

T~ was married to D~ on October XX, 1974. The marriage was dissolved in December 1979. Two children were born of the marriage.

T~ was married to M~ in October 1982. The marriage ended upon T~'s death. One child was born of this marriage. M~ has another child from a prior marriage.

L~ alleges that she had sexual intercourse with T` on or about May 16, 1980, and that a child was conceived. L~ says that J~ , who was born on January XX, 1981, is that child of T~ . L~ was never married to T~.

On November XX, 1986 T~ was served with summons and complaint in an action brought by L~ and Stearns County to establish T~ as J~'s father. The file contains a report by Memorial Blood Center of Minneapolis dated September XX, 1986, that says that genetic testing cannot eliminate the possibility that T~ fathered J~. The report also says that as compared to any random male in the population the likelihood that T~ was J~'s father is 99.735 percent.

The file also contains an unsigned stipulation of paternity. Had the stipulation been signed and entered by the court, T~ not only would have admitted that he was J~'s father, he also would have confessed liability to Stearns County for $1700 in back child support and for an additional $70/ month in prospective child support for J~. Personnel at Stearns County Department of Social Services say that T~, through his attorney, agreed to the terms of the stipulation. The clear inference is that, but for his death, T~ would have signed the stipulation. There is no indication in the file whether anyone has attempted to contact T~'s lawyer, whose name and telephone number appear on the unsigned stipulation.

A court order establishing T~'s paternity of J~ was entered on September XX, 1989, after T~'s death. It was agreed to by T~'s widow M~, as representative of his estate. Among other things, the agreed order says that the unsigned stipulation is the written version of an oral stipulation that T~ entered into before his death.

The POMS E00306.135-5 discussion of Minnesota law leaves the inference that since the 1987 amendments to Minnesota's Parentage Act, inheritance rights cannot be adjudicated after the death of the putative father. By letter dated January XX, 1990, R~, an attorney for Stearns County, argues that the POMS summary of relevant Minnesota law is incomplete.

DISCUSSION

R~ 's description of Minnesota law is accurate. Since January 1, 1987, Minnesota courts retain jurisdiction to adjudicate paternity after the death of the putative father. To the extent that POMS E00306.135-5 implies otherwise, it is incorrect.

Minn. Stat. Ann. § 524.2-109{2), effective with respect to deaths after December 31, 1986, says, in pertinent part:

If, for purposes of intestate succession, a relationship of parent and child must be established...

(2)...a person is a child of the person's parents regardless of the marital status of the parents and the parent and child relationship may be established under the parentage act, sections 257.51 to 257.74.

The Parentage Act, in turn, does not prohibit posthumous determinations of paternity and, in fact, expressly references such proceedings. For example, section 257.62, subd. 1, part of Minnesota's Parentage Act since 1983, says:

The court may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood tests. If the alleged father is dead, the court may, and upon request of a party shall, require the decedent's parents or brothers and sisters or both to submit to blood tests. * * *

(emphasis added). This provision was the subject of litigation in Voss v. Duerscherl, 408 N.W.2d 161 {Minn. App. 1987}. There the court characterized the provision as among "[r]ecent amendments to the Minnesota Parentage Act [that] also reflect the legislature's intent to permit the determination of paternity after the death of the alleged father." 408 N.W.2d at 165. Similarly, as referenced in the May letter, Minn. Stat. Ann. § 257.57, subd. 2, expressly lists among those entitled to commence an action to establish paternity "the personal representative or a parent of the alleged father if the alleged father has died or is a minor." {emphasis added). This provision, too, was essentially unchanged by the 1987 amendments to the Parentage Act.

Accordingly, there can be little doubt that a posthumous court order of paternity is valid in Minnesota for establishing the right of an illegitimate child's to inherit from his biological father.

You also have asked whether, under the principles enunciated in Gray v. Richardson, 474 F.2d 1370 {6th Cir. 1973) (adopted in SSR 83-37c) the Secretary should follow the September 14, 1988 judgment of paternity. The relevant criteria are (1) whether the judgment involves an issue of domestic relations law; (2) whether it was entered by a court with jurisdiction over the subject matter; (3) whether the action was genuinely contested; and (4} whether the judgment is consistent with state law as applied by the highest state court. Here, the first two criteria are obviously met. For the following reasons, we conclude that the third and fourth Gray v. Richardson criteria are satisfied as well.

We believe that this action was "genuinely contested," even though the judgment was entered by stipulation, and one of the reasons we so conclude is that the judgment is clearly consistent with Minnesota law. Blood tests revealed a more than 99 percent probability that T~ was J~'s father. The Minnesota Supreme Court has repeatedly endorsed the reliability of blood tests for determining paternity. E.g., Machacek v. Voss, 361N.W.2d 861, 864 (Minn. 1985) (citing U.S. Supreme Court decision in Little v. Streater, 482 U.S. 1, 6-7 (1981) for proposition that the validity of blood tests in determinations of paternity "is no longer seriously questioned;" quotes U.S. Supreme Court reference to "accuracy, reliability, dependability — even infallibility" of blood tests}; see also cases cited at p. 4 of opinion re paternity of Shanna H~ ,Donald I~ , ~ RAV (D~) to ARC {W~), 1/31/86 ("The Minnesota legislature and courts have consistently accorded considerable weight to blood test results in determining paternity."). Indeed, as noted above, the Minnesota legislature has empowered the courts to order blood tests not only of a putative father but also of his blood relatives if he is deceased. In 1989 the Minnesota legislature codified a presumption of paternity when "[e]vidence of statistical probability of paternity based on blood testing establishes that the likelihood that the man is the father of the child, calculated with a prior probability of no more than 0.5 {50 percent), is 99 percent or greater." Minn. Stat. Ann. § 257.55, subd. l{f). When tests that have been performed "in a laboratory accredited by the American Association of Blood Banks" establish a 99 percent or greater probability of paternity, "the party opposing the establishment of the alleged father's paternity has the burden of proving by clear and convincing evidence that the alleged father is not the father of the child." Minn. Stat. Ann. § 257.62, subd. 5{b) {added to statute in 1989}.

Finally, because M~ had more incentive to contest the paternity proceedings than to confess judgment, we believe that the Gray v. Richardson inquiry is satisfied here. The reliability of the evidence of paternity provides a plausible explanation for M~'s willingness to enter into an agreed judgment. Moreover, there is little risk that the agreement was collusive since M~ did not appear to have anything to gain by acknowledging T~'s paternity of J~. ^[5] To the contrary, with J~ found eligible for benefits on T~'s account the benefits payable to M~'s own children may be reduced.

CONCLUSION

For all of these reasons, the September XX, 1988 judgment of paternity entitled J~ to inherit from T~ under Minnesota's laws of intestate succession and SSA should follow it to find J~ eligible for surviving child's benefits on T~'s account.

STATUS UNDER ACT — Child — Defined

A determination by a State Court which does not indicate that it is based upon "clear and convincing proof," a prerequisite for a finding of paternity after death of a putative father as determined by the Minnesota Supreme Court, is not sufficient in and of itself to bind the Secretary to follow the State Court find particularly since the action being brought was not a paternity or probate action but was in the nature of a death action. A wrongful death action deals with "next of kin" and the others deal with "legal heirs", terms which are not synonymous.

(E~, DWE, ~ (H~) to ARC, Programs

You have requested our assistance in determining whether M~ is entitled to surviving child's benefits on the account of E~.

We understand that B~ and E~ were divorced on September XX, 1973. 1/ One child, P~, had been born of the marriage. More than thirteen months later, on October XX, 1974, B~ gave birth to M~ The file contains no evidence to indicate that E~ in any way acknowledged the child nor was there a judicial finding of paternity at that time. On June XX, 1978, E~ was killed in a motor vehicle accident.

Shortly thereafter, on September XX, 1978, B~ applied for Social Security benefits on his account for both of her children, P~ and M~. Because she provided no evidence of paternity, M~'s claim was denied. B~ later reapplied on M~'s behalf submitting, as evidence of the relationship, an amended state court order from the Minnesota District court dated July 29, 1980 for a case captioned Dean A. F~ v. Bradley J. S~ F~ is described in the order as the "trustee of the cause of action arising out of the death of E~ " B~ was apparently the person liable for the accident which had resulted in E~’s death. Among other items, the Court found:

2. That E~ is the natural father of M~, and that E~ parental rights to his daughter have never been terminated.

Based on this finding the Court ordered:

2. That the sum of $50,000 to be received [as a final settlement] shall be distributed as follows: ...the sum of $15,000 to M~

, minor daughter of E~ to be placed under the dual control of the General Guardian of M~ and a financially responsible third party.

There is nothing in the file to indicate how the court arrived at this decision.

We conclude that this order alone is not sufficient to justify M~'s entitlement to benefits on E~ account.

The Minnesota Supreme Court has determined that a paternity action under the state's paternity statute, Minn. St. 257.251 et. seq., may be commenced after the death of the putative father to allow for inheritance under the Minnesota probate statute.2_/ Weber v Anderson, 269 N.W. 2d 892 (1978). In reaching that conclusion the Weber court acknowledged the existence of legitimate concern about the risk of fraudulent claims against the father's estate. However, as the Court stated:

We believe that the risk of fraudulent claims in this context is better met, not by barring all such causes of action, but by requiring clear and convincing proof by the plaintiff that the putative father was in fact the father. 269 N.W. 2d at 895.

B~, therefore, could have brought a paternity action on M~'s behalf even after E~'s death but would have been required to meet a standard of "clear and convincing" evidence of paternity.

This action, however, was not brought under the Minnesota paternity act. Nor was it a probate action which, under Minn. St. 525.172, would have required either a written acknowledgment by the putative father or a fielding of paternity pursuant to the Paternity Act. Rather, this action was brought under the "Death-By-Wrongful-Act" statute, Minn. St. 573.02. Under that provision, an action may be maintained on behalf of the surviving spouse or next-of-kin. "Next-of-kin," it should be noted, is not synonymous with the term "heirs-at-law." In re Larsen's Heirs, 306 Minn. 364, 237 N.W. 2d 371 (1975). Indeed, under this statute siblings who would not have inherited by intestate succession have been allowed to maintain the action. Martz v Revier, 284 Minn. 166, 170 N.W.2d 426 (1964). The statute says nothing about what showing illegitimate children must make in order to be considered "next-of-kin" nor could we find any case law addressing this question.

The Sixth Circuit set forth the criteria for federal acceptance of state court decisions in Gray` v, Richardson, 474 F 2d 1370 (6th Cir. 1973). That case involved a claim for child's benefits, in which the .Secretary fouled that the child was not the daughter of the deceased wage earner, despite a finding to the contrary in the decree of divorce granted to the wage earner and the child's mother. The Court of Appeals noted that, pursuant to Section 216 (h)(2)(A) of the Social Security Act, 42 U.S.C. 416(h)(2)(A), "the right of the child to Social Security benefits is controlled by the Ohio law of intestate succession." Id. At 1372. It went on to explain at 1373:

Although the Secretary is not bound by the decision of a State trial court in a proceeding to which he was not a party, we hold that he is not free to ignore an adjudication of a state trial court where it is fair and consistent with the law enunciated by the highest court of the State . . .

Since this is a situation falling within the general category of domestic relations, special deference should be given by federal tribunals to the resolution by the State court. Traditionally, the states, not the federal government, have been considered the exclusive arbiter of these problems ....

We therefore hold that the Secretary should have accepted the determination made by the State court. Such a holding is proper in the present case where the following prerequisites are 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. (emphasis added).

The Court held that the Secretary should have been bound by the finding in the Gray's divorce decree regarding the child's legitimacy, as the above criteria had been met in the divorce proceedings.

The Gray decision established the framework within which the court decided a claim for a widow's insurance annuity in Dennis v Railroad Retirement Board, 585 F. 2d 151 (6th Cir. 1978). In that case the Sixth Circuit held that the Board should have accepted an Ohio probate court order finding the claimant to be the widow of the deceased railroad employee. The Circuit Court observed, nonetheless, that a state court opinion is not binding on a federal agency authorized to apply state law and need not be followed absent a showing that the four criteria of Gray had been satisfied. Id.

This office has therefore concluded that Gray and Dennis authorize the Secretary to decide a family status question contrary to a state court judgement on the same issue in any case where he is required by federal statute to apply state law and where the state court judgment was not entered in accordance with Sixth Circuit criteria. C~ , A/N~ , RA V (A~) to Acting Director, Insurance Programs Branch V, 7/21/81.

Applying the Gray criteria to this case, we find that the first and third prerequisites have been met: an issue in a claim for Social Security benefits has been determined by a State court and the issue .falls within the general category of domestic relations law. E~ widow, E~, was represented by counsel at the state court proceeding so the second criteria may have been met. The issue may have been genuinely contested by parties with opposing interests. Without more information, however, it is impossible to determine this with certainty.

Finally, based on the information contained in the file, we conclude that the fourth criteria, "the resolution by the State trial court is consistent with the law enunciated by the highest court in the State," has not been met. /he Weber court left no doubt that, after the death of the putative father, only a showing of "clear and convincing" proof would justify a finding of paternity. There is nothing in the amended order or anywhere else in the file to indicate that the state court applied that standard. If anything, the identical wording of the paragraph finding E~ to be the father of P~ and the paragraph finding him to be the father of M~ raises a question of whether the legitimacy issue was even considered.

Thus we find that this order alone is not sufficient to justify M~'s entitlement to benefits on E~ account. This decision, of course, does not preclude B~ from submitting additional evidence to show that the "clear and convincing" standard was applied and met in the state court proceeding.