Under Alabama law, the DNA testing of a father and sibling of a deceased number holder yielding a probability of paternity that is greater than 97% create a presumption under Alabama law that can only be rebutted by clear and convincing evidence. It is not, however, great enough to overcome the presumption of legitimacy in cases where the claimant is presumed to be the legitimate child of the mother's husband.

In cases where the presumption of legitimacy is not an issue, the claimant would only be entitled prospectively from the date of the DNA testing.

Also, Alabama has no expressed accreditation requirements for genetic laboratories. Such accreditation may be considered, however, when weighing the significance of DNA results.

QUESTION

You asked several questions concerning whether Damonicka W~ (C1) may be entitled to child's insurance benefits on the record of the deceased number holder, Broderick W~, Sr. (NH), on the basis of DNA testing of NH's father, Lawrence W~, and NH's sister, Michelle W~. Specifically, you asked:

What are the accreditation requirements of DNA testing laboratories per Alabama State Intestacy Law?

Is the DNA evidence submitted from the father and sibling of NH sufficient to rebut the presumption of paternity for C1?

Since [the precedent in PR 01115.001C states that the DNA from a brother is sufficient to establish a presumption of paternity that can only be rebutted by clear and convincing evidence under Alabama Law, would this presumption also apply to DNA from a parent and/or sister of the NH?

If the children meet the requirements of an illegitimate child with inheritance rights of the NH, can the children be paid retroactively or prospectively from the date of the DNA?

If the children can be paid retroactively, should the previous denials be reopened to allowances?

In October 2005, we spoke with Betty C. to clarify the questions asked, and agreed that the questions should reflect whether both C1 and Broderick W~, Jr. (C2) are entitled to benefits. We also agreed that our opinion should address whether the DNA testing is sufficient to rebut the presumption that Donald W~ is the children's legitimate father. Thus, the questions to be answered are:

Can C1 and C2 be entitled to child's insurance benefits on NH's record on the basis of DNA testing of NH's father and sister?

Is this DNA testing sufficient to rebut the presumption that Donald W~ is the children's father?

If the children are entitled to benefits on NH's record, can the children be paid retroactively or would their benefits be prospective from the date of the DNA testing?

If the children could be paid retroactively, should the Agency reopen the children's previous denials?

What are the accreditation requirements for genetic testing laboratories under Alabama law?

ANSWER

Generally, the DNA testing of a father and sibling of a deceased number-holder that yield a probability of paternity that is greater than 97% create a presumption of paternity under Alabama law that can only be rebutted by clear and convincing evidence.

The DNA testing in this case cannot alone rebut the controlling presumption that Donald W~ is both children's father. Thus, when taking into account the evidence before the Agency, an Alabama court would find C1 and C2 to be the children of Donald W~, and an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes.

C1 and C2 are not entitled to benefits on NH's record, and thus, payment is not at issue; however, a child born out of wedlock does not inherit under Alabama law in the same manner as though legitimate. Children who meet the requirements of an illegitimate child with inheritance rights of a number-holder would be paid prospectively from the date of the DNA testing.

The children's prior applications should not be reopened, because they are not entitled to benefits on NH's record; however, only C2's prior application could have been reopened pursuant to the regulations, if he could be paid retroactively.

Alabama does not expressly require an accredited laboratory to conduct genetic testing to establish paternity rights. The lack of accreditation of the laboratory conducting the DNA tests, standing alone, does not render the test results inadmissible. Rather, a laboratory's accreditation is a factor that can be considered by the trier of fact when assessing the weight it assigns to the DNA tests. Because the testing facility here appears to be accredited, the issue of accreditation does not seem to be an issue in this case.

BACKGROUND

On January 27, 2001, NH died while domiciled in Alabama. C1 was born on June 4, 1995. C2 was born on August 18, 2001. The children's mother, Ronda W~, has been married to Donald W~ since December 1988. There is no evidence that they ever divorced.

On September 10, 2004, the children's grandmother, Beulah R~ (Applicant), applied for surviving child's benefits on the children's behalf. Applicant submitted the results from a DNA kinship test dated April 12, 2005. The DNA samples were taken from Ronda W~, C1, and C2 as well as Lawrence W~, NH's father, and Michelle W~, NH's sister. The results showed that NH was not excluded as the children's biological father and that the probability of paternity was of 99.71%. The conclusion was based upon the assumption that Michelle W~ was NH's biological full sibling and Lawrence W~ was NH's biological father. This DNA test was conducted by Reliagene Technologies, Inc. Reliagene's stationary claims that it is accredited by "the Parentage Testing Committee of the American Association of Blood Banks."

The record also includes copies of the children's birth certificates. C1's birth certificate lists Donald W~ as the father. C2's birth certificate does not list a father.

Furthermore, the record includes a form SSA-795 signed by Donald W~ in July 2001 that states he is not the father of C1 or "the unborn child that Ronda W~ is carrying." We can infer that the referenced unborn child is C2 (who was born on August 18, 2001).

Under Alabama law, a child may inherit from the father through intestate succession, if paternity is established by an adjudication supported by clear and convincing evidence, even if commenced after the father's death. See Ala. Code § 43-8-48(2)b (2005); Cotton v. Terry, 495 So.2d 1077, 1079 (Ala. 1986). Proof by clear and convincing evidence requires a level of proof greater than a preponderance of evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001).

DISCUSSION

1. Sufficiency of DNA testing of the father and sister of NH to establish a presumption of paternity under Alabama law.

When determining entitlement to surviving child's benefits, the Agency applies the inheritance laws of the state where the insured had his permanent home when he died. See § 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A) (2005); 20 C.F.R. § 404.355(a)(1), (b)(1) (2005). Agency regulations further provide that if applicable state inheritance law requires a court determination of paternity, the Agency will not require a court determination, but will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2). NH was domiciled in Alabama when he died.

Under Alabama law, a child may inherit from the father through intestate succession, if paternity is established by an adjudication supported by clear and convincing evidence, even if commenced after the father's death. See Ala. Code § 43-8-48(2)b (2005); Cotton v. Terry, 495 So.2d 1077, 1079 (Ala. 1986). Proof by clear and convincing evidence requires a level of proof greater than a preponderance of evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001).

Alabama's intestacy statute does not address genetic testing, but its paternity statute does. Under the Alabama version of the Uniform Parentage Act (UPA), genetic test results that "indicate a 97 percent or greater probability of paternity" create a presumption of paternity that may only be rebutted by clear and convincing evidence. See Ala. Code § 26-17-13(a)(3). While there is no statute that expressly states that Alabama courts will use the UPA paternity presumptions in an intestacy proceeding, there is supporting caselaw that an Alabama court will apply the same rules for paternity adjudications under the UPA and the state's intestacy statute. In Blackmon v. Brazil, 895 So.2d 900 (Ala. 2004), the Supreme Court addressed whether an adjudication of paternity under the state's intestacy statute, Ala. Code § 43-8-48(2)b, was subject to the statute of limitations under Ala. Code § 6-2-33(2). Id. at 908. The Court noted first that the language of Ala. Code § 43-8-48(2)b neither exempted nor subjected a paternity proceeding for intestacy purposes to the statute of limitations. Id. Next, the court found that the state legislature intended to subject a UPA proceeding for an adjudication of paternity to establish the right of inheritance in a child born out of wedlock to the statute of limitations. The Court concluded that Ala. Code § 43-8-48(2)b was subject to the statute of limitations, because an adjudication of paternity to establish inheritance rights for a child born out of wedlock under the UPA was subject to the same statute of limitations. Id. Because the Supreme Court of Alabama is willing to apply provisions applicable to UPA paternity determinations when determining the inheritance rights of children born out of wedlock under the intestacy statute, we conclude that the courts will look to the paternity provisions in the UPA to govern the paternity proceedings under the state's intestacy statutes, and as such, would apply the UPA provisions on genetic testing.

In this case, the DNA test results yield a "probability of paternity" that is greater than 97%; however, these results were based on the DNA from the father and sister of NH. We found no statute or controlling caselaw precluding the use of DNA tests on relatives. Nothing in Alabama law limits DNA test results that yield a probability of paternity to tests performed on the putative father; the statute merely requires tests results that "indicate a 97 percent probability that the alleged father is the biological or natural father of the minor." See Ala. Code § 26-17-13(a)(3). Therefore, we conclude that the statute is satisfied by tests on relatives that yield a probability of paternity, as opposed to tests that yield a probability of siblingship, grandpaternity, relatedness, or some other relationship. Furthermore, POMS PR 01115.001C provides that DNA genetic testing conducted on a number holder's brother, which established a 99.71% probability of paternity for the number holder, is sufficient under Alabama law to establish a presumption of paternity that can only be rebutted by clear and convincing evidence. See id. (citing Ala. Code § 26-17-13(a)(3)).

Given this authority, it is our opinion that the DNA testing on NH's father and sibling that shows a 99.71% probability that NH is the father of the children in this case could create a presumption of paternity under the Alabama paternity statute and that such a presumption could only be rebutted by clear and convincing evidence. However, this conclusion must be weighed against the clear and convincing evidence in the record that would establish Donald W~ as the children's father.

2. Sufficiency of DNA testing to rebut the presumption that Donald W~ is the children's father.

The presumption of paternity established by the DNA testing in this case does not rebut the presumption that Donald W~ is the legitimate father of both C1 or C2. Consequently, an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes based on the facts provided to the Agency.

Under Alabama law, a man is presumed to be the natural father of a child if he and the child's mother are or have been married to each other and the child is born during the marriage. Ala. Code § 26-17-5(a)(1). The statute further provides that "[i]n the event two or more conflicting presumptions arise, that which is found upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control." See id. at § 26-17-5(b).

In this case, the record shows that Ronda W~, the children's mother, married Donald W~ in December 1988, and the file provides no indication that the couple divorced. In fact, Applicant signed an SSA-795 stating that, to her knowledge, Ronda W~ and Donald W~ never divorced. Because both C1 and C2 were born to Ronda W~ while she was married to Donald W~, Mr. W~ is presumed to be the children's natural father under Alabama law. This presumption conflicts with the presumption established by the DNA testing.

The Alabama Supreme Court addressed the issue of conflicting presumptions, like those in the instant case, and held that the "public policy considerations" in which a husband is presumed to be the father of the wife's child are weightier than other presumptions of paternity. See Ex parte Presse, 554 So.2d 406, 412 (Ala. 1989). "[I]t is not logical that two men could be presumed to be the child's father. The presumption in favor of the [husband] is an ancient one, supported by logic, common sense, and justice." Id. The Alabama Supreme Court addressed this issue again in Ex parte C.A.P., 683 So.2d 1010 (Ala. 1996), and elaborated that the presumption in Ala. Code § 26-17-5(a)(1) is established if the child is born during the marriage. See id. at 1012.

Given this authority, and the fact that Ronda W~ and Donald W~ are still married, an Alabama court would find C1 and C2 to be the children of Donald W~. An Agency adjudicator, therefore, could not conclude that either C1 or C2 is NH's child for entitlement purposes.

In addition, Applicant, the maternal grandmother of C1 and C2, would not have standing to bring an action seeking to declare NH as the father of these children, because the law restricts who may bring an a paternity action when the presumption of legitimacy has been established under Ala. Code § 26-17-5(a)(1). In Presse, the Alabama Supreme Court held that when a child's presumed father is the husband, a third party would not have standing under the law. See 554 So.2d at 413. In M.H.E. v. B.E., 864 So.2d 351 (Ala. Civ. App. 2002), the alleged father was deceased, and the court held that his mother did not have standing to bring an action on his behalf. See id. at 354. Given this authority, Applicant has no standing to challenge the paternity of Donald W~.

Only NH or Ronda W~ conceivably would have standing to challenge the paternity action, only if the presumed father, Donald W~, does not "persist in the presumption that he is the father." In Cravens v. Cravens, - So.2d - (Ala. Civ. App. 2005), the court held that "no one, including the mother of the child, has standing to challenge a presumed father's paternity as long as the presumed father persists in claiming paternity of the child." Id. (citing Ex parte C.A.P., 683 So.2d 1010 (Ala.1996), and Ex parte Presse, 554 So.2d 406 (Ala.1989)). The Court in Presse explained:

the legal question is whether is a man has standing to bring an action seeking to declare a child illegitimate and to have himself declared the father of that child. This is not permitted under [Alabama Law], as long as there is a presumed father, pursuant to § 26-17-5(a)(1), who has not disclaimed his status as the child's father.

554 So.2d. at 418 (emphasis added). In R.O.M. v. T.W.J., 768 So.2d 397 (Ala. Civ. App. 2000), the court found by clear and convincing evidence that the man who claimed to be the child's biological father had standing to challenge the paternity of the child, because the husband "disclaimed his status as the presumed father." Id. at 399. In reaching this conclusion, the court focused on the fact that the husband disclaimed "all legal rights" to the child, and submitted a waiver of those rights to the court. See id. In addition, the court considered that the husband did not hold the child out as his own, while the man claiming to be the father "pursued all legal avenues to establish paternity." Id.

In this case, the evidence is insufficient to demonstrate that Donald W~ disclaimed his status as the presumed father. While Donald W~ signed a statement for the Agency in July 2001 indicating that C1 was not his child, this does not constitute a disclaimer or waiver of his legal rights to C1 as described in R.O.M. Moreover, there is no evidence that Donald W~ did not hold himself out as the father of the child, other than his signed statement. Contrarily, C1's birth certificate lists Donald W~ as the father of the child, and they both share the same last name. Finally, there is no evidence that NH pursued any "legal avenues to establish paternity" of C1. With regard to C2, there is some evidence, albeit not very probative, from C2's kindergarten teacher which suggested NH held himself out as the father; however, there is no evidence that NH made any effort, legal or otherwise, to establish paternity, despite the fact that they share the same name. In addition, there is no evidence that Donald W~ disclaimed his legal rights to C2 or that such a legal waiver was made. However, the statement provided to the Agency makes reference to "the unborn child that Ronda W~ is carrying," and it can only be inferred that he is referring to C2 who was born one month after this statement was signed in July 2001. Thus, the evidence of record falls short of demonstrating that Donald W~ disclaimed his legal rights as the presumed father of C1 or C2, and an Alabama court would find C1 and C2 to be the children of Donald W~. An Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes.

Alabama law does not treat illegitimate and legitimate children the same, and an established illegitimate relationship would have a prospective effect from the date of DNA testing.

In this case, C1 and C2 are not entitled to benefits on the record of NH, and thus, payment is not at issue. However, if C1 and C2 met the requirements of an illegitimate child with inheritance rights of NH and were entitled to benefits on the record of NH, you asked whether the children could be paid retroactively, or could they only receive benefits prospectively from the date of the DNA testing.

As noted in POMS GN 00306.405(4), Alabama confers inheritance rights based on an adjudication of paternity after the death of the father, but this does not legitimate the child. A non-legitimated applicant with intestate inheritance rights is a child only from the time inheritance rights arose. See POMS PR 01120.001A. Where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the law has no retroactive effect, the claimant's status as the nameholder's child is established effective with the date of the latest necessary piece of evidence (if more than one piece of evidence is needed to satisfy the applicable standard of proof). See POMS GN 00306.055. Thus, if C1 and C2 had qualified as NH's children under Alabama law based on DNA test results, they would not have inherited in the same manner as if they were legitimate, and would have been paid prospectively from the date of the DNA testing.

4. The children's prior applications should not be reopened.

In this case, C1 and C2 are not entitled to benefits on the record of NH. Even if they were entitled to benefits, they would be paid prospectively from the date of DNA testing. Thus, whether to reopen C1 and C2's prior applications is not at issue. However, if C1 and C2 could be paid retroactively, you asked whether the children's prior applications should be reopened.

With regard to C1's prior application, there is no regulatory authority to reopen her prior claim even if she were to be paid retroactively. The regulations permit the Agency to reopen the determination within four years of the notice of the initial determination, provided there is good cause. See 20 C.F.R. § 404.988(b). The regulations provide that there is good cause to reopen a determination or decision if "new and material evidence is furnished." 20 C.F.R. § 404.989(a)(1). In this case, however, the initial determination denying C1's prior claim was dated June 30, 2001, more than four years after the initial determination. Although 20 C.F.R. § 404.991a permits the Agency to revise a determination if an investigation into whether to revise the determination began before the applicable time period expired, there is no evidence that such an investigation took place. Furthermore, 20 C.F.R. § 404.988(c) permits the Agency to reopen a determination at any time if one of the conditions in the regulation are met. However, none of these conditions would have been applicable.

With regard to C2's prior application, there would have been authority under 20 C.F.R. § 404.988(b) to reopen this claim if he were to be paid retroactively. The initial determination denying C2's prior claim was dated January 20, 2003, and the receipt of DNA testing establishing that NH is the father of C2 would most certainly qualify as "new and material evidence." Thus, the Agency could have found "good cause" to reopen the January 20, 2003 determination that C2 was not entitled to benefits.

5. Alabama accreditation for genetic testing.

Under Alabama law, there are no specific accreditation requirements for genetic testing in connection with establishing paternity. However, as stated in POMS PR 01115.001C, genetic identification technology through DNA testing is specifically recognized by Alabama statute as generally accepted by the relevant scientific community. See id.; see also Ala. Code § 36-18-20 (the statute declaring DNA testing as generally accepted by the relevant scientific community). In addition, DNA tests are recognized by Alabama statute for the purpose of establishing paternity. See Ala. Code § 26-17-12.

Although there is no statutory or case law in Alabama that specifically addressed the accreditation of laboratories conducting DNA testing to establish paternity, we note that the issue of accreditation for genetic testing laboratories was addressed in J.H.H. v. State, 897 So.2d 419 (Ala. Crim. App. 2004), and may serve as useful guidance for addressing accreditation issues in connection with paternity rights. In J.H.H., the court noted that:

[o]ur research has not revealed any case where the appellate courts of this State have addressed whether the laboratory's accreditation, or lack of accreditation, affects the admissibility of its DNA test results. However, we agree … that the accreditation status of the laboratory conducting the DNA tests, standing alone, does not render the test results inadmissible, but that the laboratory's accreditation status is a factor that can be considered by the trier of fact when assessing the weight it assigns to this evidence.

Id. Thus, Alabama does not require genetic testing to be conducted by an accredited laboratory to establish paternity rights, and a lack of accreditation appears to affect only the weight of such evidence, not its admissibility.

In this case, Reliagene's stationary notes that it is "accredited by the Parentage Testing Committee of the American Association of Blood Banks." Likewise, Reliagene's website identifies that it is also accredited by the National Forensic Science Technology Center for compliance with the Quality Standards of the DNA Advisory Board, the College of American Pathologists, and the American Society of Crime Lab Directors/Laboratory Accreditation Board in the discipline of DNA. See Reliagene Technologies, Inc., http://www.reliagene.com/index.asp?content_id=accred&menu_id=aboutus (last visited Nov. 2, 2005).

CONCLUSION

The genetic testing performed in this case can establish a rebuttable presumption of paternity that NH is the father; however, this DNA testing cannot rebut the controlling presumption that Donald W~ is the father of either C1 or C2. Thus, when taking into the account the evidence before the Agency, an Alabama court would find C1 and C2 to be the children of Donald W~, and an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes. If C1 and C2 had qualified as NH's children under Alabama law, they would not have inherited in the same manner as if they were legitimate, and would have been paid prospectively from the date of the DNA testing. Because these children would not have been paid retroactively, the Agency would not need to reopen their prior applications. Furthermore, Alabama does not require genetic testing to be conducted by an accredited laboratory to establish paternity rights, and a lack of accreditation appears to affect only the weight of such evidence, not its admissibility.

Mary A. S~

Regional Chief Counsel

Brian S~

Assistant Regional Counsel

Under Alabama law, DNA test results showing a high probability of grandparentage are not sufficient to establish a presumption of paternity. Additionally, the testing of grandparents would not be sufficient to establish legitimation of the child as only the father can file a petition to legitimate the child.

Although the grandparents' DNA tests are not sufficient to establish paternity, if an SSA adjudicator were to find the claimant entitled based on DNA test results submitted with an application, benefits would be payable from the date of the testing.

QUESTION

Whether DNA evidence obtained from the alleged grandparents of a deceased number holder is sufficient to establish a presumption of paternity under Alabama Law?

Whether the probability of grandpaternity meets the legal standard of the law?

Whether a child can be legitimated or acquire inheritance rights based on the grandparent's DNA?

If the child meets the requirements for an illegitimate child with inheritance rights, can the child be paid retroactively from the date of the DNA findings?

BACKGROUND

Anthony W~ (the number holder) died on March 1, 1992 in Talladega, Alabama. Diletha H~ (Claimant's mother) filed for surviving child's benefits for Brandy S. H~ (Claimant) on the number holder's wage record on March 19, 1992. This claim was denied for lack of child relationship evidence. Another application, filed on November 18, 2004, was also denied for similar reasons. A third application was filed on March 1, 2005. This application was submitted with DNA testing results performed on the number holder's alleged parents (Nellie and Harold W~), the Claimant and her mother. The DNA test results concluded that there was a 99.9999% probability of grandparentage.

DISCUSSION

DNA test results that show a high probability of grandparentage do not establish a presumption of paternity under Alabama law. Section 26-17-5 of the Alabama Code enumerates all the factual situations where the presumption of paternity would arise. For example, the presumption arises when the child is born during a marriage or within 300 days after the end of a marriage, where there is an invalid marriage under state law, where there has been a written acknowledgement of paternity or when an individual is obligated to support the child voluntarily or through a court order. A presumption of paternity also arises through DNA testing. Ala. Code § 26-17-13(3) states: "Genetic test results which indicate a 97 percent or greater probability that the alleged father is the biological or natural father of the minor child sH~ create a presumption of paternity that the alleged father is in fact the father of the child. This presumption may be rebutted only by clear and convincing evidence." The probability of the grandpaternity would not meet the legal definition of the law for the presumption of paternity. The statue provides that the testing should demonstrate the father's relationship with the child.

Furthermore, the DNA testing done on the purported grandparents would not satisfy the legal requirements for legitimation of the child under Alabama law. The father of the child is the only one who can file a petition to legitimate a child. There are no statutory provisions for posthumous legitimation. See Ala. Code § 26-11-2 (2005).

We have also concluded that the results of DNA testing done on grandparents, with no additional supporting information, would not likely establish that Brandy Shantese H~ is the illegitimate child of the number holder. Alabama Code § 43-8-48 states that for purposes of intestate succession, a relationship of parent and child must be established to determine succession and the paternity must be established by an adjudication before the death of the father or established thereafter by clear and convincing proof (emphasis supplied). Clear and convincing evidence is defined in Alabama statutes as "evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt." Ala. Code § 6-11-20(b)(4) (2005).

We reviewed several Alabama cases where a paternity determination was an issue and the clear and convincing evidence standard was applied. None of the cases relied on DNA testing on the putative father's relatives. The genetic testing was always done on the father. See e.g. K.H.M. v. D.L.I., Jr., 895 So.2d 950 (Ala. 2003). As a result, we have further concluded that a DNA test done on grandparents does not clearly establish that the Claimant is the child of the number holder. At a minimum, additional evidence would be necessary to verify that the individuals tested were the biological parents of the number holder and to also exclude the possibility that other individuals in the family could be the father of the child. As a result, we do not feel that Alabama courts would determine that Claimant was entitled to inherit a share of the number holder's intestate estate based solely on evidence of DNA testing done on "alleged" grandparents. Additional evidence would be necessary to satisfy the clear and convincing evidentiary standard.

You also asked whether a child status finding based on grandparent DNA tests results would entitle a child to benefits for a period prior to the DNA test results. POMS RS 00203.005 states that a child entitled to surviving child's benefits will be entitled to a monthly benefit effective with the first month in which all of the eligibility requirements are met during any part of that month. As noted above, granting benefits in this case, based on the evidence in the record, seems unlikely. Nevertheless, if an SSA adjudicator were to find Claimant entitled based on the DNA test results submitted with the application for benefits, benefits would be payable from the date of the testing.

CONCLUSION

Mary A. S~

Regional Chief Counsel

Sharon F. Y~

Assistant Regional Counsel

Under Alabama law, there is no specific provision for the retroactive extension of inheritance rights pursuant to a court order of paternity; thus, the order of paternity in this case created the legal status of "heir" and may be given only prospective application.

(W~, Jimmy - SSN ~ - RAIV [Walters] - to Dir., PPB, Atl., 05/24/88)

You have requested our opinion as to the effective date of an Alabama court order of paternity with respect to determining the child's date of entitlement. The facts are that Jeanetta L. R~, HC3, has been entitled to benefits effective August 1985 based upon a court order of paternity dated August 7, 1985. Our opinion is needed to establish whether HC3 can be given retroactive entitlement to March 1985, the number holder's month of entitlement.

The child cannot qualify for benefits under the provisions of Section 216(b)(2)(B) of the Social Security Act, 42 U.S.C. §416(h)(2)(B), as no marriage ceremony is asserted. Similarly, the child does not qualify under the provisions of the Section 216(h)(3)(B) of the Act, 42 U.S.C. §416(h)(3)(B). Thus, our consideration is directed toward the provisions of Section 216(h)(2)(A) of the Act, 42 U.S.C. §416(h)(2)(A), which would extend benefits if the applicant is a child of the insured individual under the State law as it would be applied by the Secretary in determining the devolution of the intestate personal property.

The Code of Alabama, at §43-8-48, provides for the parent and child relationship in the context of the intestate succession of children born out of wedlock, in pertinent part, as follows:

"If, for the purposes of intestate succession a relationship of parent and child must be established to determine succession by, through, or from a person:

(2)... (the child born out of wedlock) is also a child of the 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) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof,

In this claim, paternity has been established by adjudication during the lifetime of the father.

When applying the provisions of Section 216(h)(2)(A) of the Act, 42 U.S.C. §416(h)(2)(A), to illegitimate children, the Social Security Administration has long used the State intestacy statutes not only to establish the legal status of "child" but also to date the inception of that status as well. An applicant legitimated by State law is considered, generally, to satisfy the intestacy statute as a legitimate child, i.e., from birth; however, a non-legitimated applicant with intestate inheritance rights is a child only from the time inheritance rights arose. See, the attachment to the OGC precedent opinion in B~, Frank E349.(5/22/85 - SN ~ - RAIV [Jarrett] - to Dir., Ins.Progs.Br., Atl., 05/22/85. Although the Code of Alabama at §26-17-14(a) provides that, "The order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes ...", we found no specific authority, under Alabama law, for a retroactive extension of inheritance rights.

Therefore, it is our opinion that, consistent with the rationale set forth in the above-referenced B~ opinion, the court order of paternity in this case created the legal status of "heir", and, thus, may be given only prospective application.