QUESTION PRESENTED
This memorandum is in response to your request for a legal opinion on whether E~ III
(C6) and A~ (C7) (collectively referred to as the children) are entitled to Social
Security child’s insurance benefits on E~’s (the deceased number holder’s) account.
Specifically, you asked whether deoxyribonucleic acid (DNA) testing results of only
one paternal grandparent (the deceased number holder’s mother and the children’s purported
maternal grandmother), B~ (B~) with a 99.99% probability of grandmaternity for C7
and a 99.17% probability of grandmaternity for C6 constitutes proof of paternity under
Oklahoma state law to entitle the children to child’s benefits on the deceased number
holder’s account. Additionally, if the DNA report is sufficient to establish paternity,
you asked whether the date of entitlement is from the date of the DNA test report
(December 3, 2013) or whether it is retroactive to the childrens’ birth.
ANSWER
In our opinion, we find that the totality of evidence, including one paternal grandparent’s
DNA and the additional evidence submitted, establishes a parent-child relationship
between the deceased number holder and the children. Oklahoma law does not contain
an express requirement that both purported paternal grandparents must participate
in DNA testing for a court to determine paternity. Rather, under Oklahoma law, a DNA
test report from a purported father’s relative, such as the grandmother in this case,
can establish the parent-child relationship between a deceased father and a child.
In addition, under Oklahoma law, the parent-child relationship is established retroactively,
not prospectively, from the DNA report. As such, the claimants are entitled to surviving
child’s benefits on the deceased number holder’s account retroactively, beginning
June 6, 2013, six months immediately before December 6, 2013, the date of the childrens’
applications.
BACKGROUND
As we understand the facts, the deceased number holder died on April 16, 2009, while
domiciled in Oklahoma. In January 2010, S~ (S~), the children’s mother, filed on their
behalf a claim for Title II child’s benefits on the deceased number holder’s record.
We do not know what evidence S~ provided to support the claims under this first application.
In March 2010, SSA denied these claims. On December 6, 2013, S~ filed new claims for
child’s benefits on the deceased number holder’s account and provided additional evidence,
including the December 3, 2013, paternal grandmother DNA testing results.
There is no information as to the relationship between S~ and the deceased number
holder, including no allegation of a marriage and no information as to their living
arrangement at the time of the children’s birth and prior to the deceased number holder’s
death. SSA’s numident record for C7 shows that he was born May, lists S~ as his mother,
and does not list a father. SSA’s numident record for C6 shows that he was born on
April, shortly after the deceased number holder’s death, lists S~ as his mother, and
states that the father is unknown.
The information provided shows that the deceased number holder was the son of B~ [1] and E~Sr.. In particular, a copy of a Decree of Divorce the District Court of Comanche
County, Oklahoma entered on September 30, 1997 (divorce decree) stated that B~ and
E~ Sr. were legally married in Oklahoma on November 24, 1986. The divorce decree explained
that prior to their marriage, B~ and E~ Sr. had two children: a son, E~ (the deceased
number holder), who was born on June and a daughter, E~, who was born on October.
The divorce decree established that B~ and E~ Sr. divorced on September 30, 1997,
while living in Oklahoma. The divorce decree included a paternity determination showing
that E~ Sr. was the deceased number holder’s natural father and ordering that the
deceased number holder’s name be changed from E1~ to E2~. The divorce decree granted
B~ custody of the deceased number holder and his sister, and granted visitation rights
to and ordered child support from E~Sr. .
The evidence submitted also includes a copy of grandparent DNA tests results. S~ submitted
certified DNA tests dated December 3, 2013 of B~ and the children, showing the likelihood
of grandmaternity of 119 to 1 and a 99.17 percent probability of grandmaternity between
C6 and B~, and a likelihood of grandmaternity of 91,126 to 1 and a 99.99 percent probability
of a biological relationship between C7 and B~.
Finally, S~ also submitted the deceased number holder’s obituary, which stated that
the deceased number holder was survived by his parents, B~ and E~Sr. ., and that he
was their only son. The obituary also stated that the deceased number holder was survived
by four sons and three daughters, including C6 (who was not yet born on April , the
date the number holder died, but was due on April 24, 2009) and C7 (though the obituary
lists C7’s last name as F~ rather than S~, which is listed on the DNA test report).
In addition to his parents and seven children, the deceased number holder was survived
by one sister.
ANALYSIS
The Social Security Act (Act) provides that the child of an individual who dies as
a fully or currently insured individual (insured) is entitled to child’s insurance
benefits, beginning with the first month in which the child meets the criteria for
child’s insurance benefits. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(1). To be
entitled to child’s insurance benefits on the insured number holder’s account, a child
must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3)
apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. §
402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). The term “child” includes a natural child.
42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. [2] Here, the children applied for benefits, are unmarried, and are under age 18. The
agency will consider the children to be the deceased number holder’s dependent children
if they are the deceased number holder’s natural children. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion that the children must
establish is that they are the deceased number holder’s natural children.
An applicant proves that he is a number holder’s natural child if:
(1) he could inherit property through intestate succession as the number holder’s
natural child;
(2) the number holder and the child’s other parent participated in a ceremony that
would have resulted in a valid marriage, except for a legal impediment;
(3) the number holder has acknowledged that the child is his natural child in writing;
a court has decreed the number holder to be the child’s parent; or a court has ordered
the number holder to contribute to the child’s support because the child is the number
holder’s child; or
(4) the number holder and the child’s other parent have not married, but the child
has evidence, other than the evidence described in (3) above, to show that the number
holder is the child’s natural parent, as well as evidence to show that the number
holder was either living with the child or contributing to his support at the time
the child applied for benefits, or at the time of the number holder’s death in cases
in which the number holder is not alive at the time of the child’s application.
See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).
According to the information that we received, S~ and the number holder were never
married and did not participate in a ceremony that would have resulted in a valid
marriage. It does not indicate that the number holder personally acknowledged the
children as his own, though his obituary lists them both as his children. In addition,
no court decreed the children to be the deceased number holder’s children or ordered
him to contribute to their support. Further, there is no evidence that the deceased
number holder was living with the children or contributing to their support at the
time of his death (indeed, C6 was not born until after his death). Thus, we conclude
that the children do not qualify as the deceased number holder’s natural children
under tests two, three, or four of the Act’s provisions described above. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(2)-(4). Consequently,
to prove that they are eligible for child’s insurance benefits on the deceased number
holder’s account, the children must show under the first test that they could inherit
property through intestate succession as the deceased number holder’s natural children.
Oklahoma law controls on this issue of intestate succession because the deceased number
holder had his permanent home in Oklahoma when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b).
Requirements for Inheritance as a Child under Oklahoma’s Intestate Succession Laws
Oklahoma law establishes four methods for a child born out of wedlock to establish
inheritance rights from his purported biological father. See Okla. Stat. Ann. tit. 84, 215. These four methods are:
(1) the father, in writing, acknowledges himself to be the child’s father,
(2) the father and mother marry after the child’s birth, and the father, after such
marriage, acknowledges the child as his own or adopts it into his family,
(3) the father publicly acknowledges such child as his own, receiving him as such,
with the consent of his wife, if he is married, into his family and otherwise treating
the child as if he were born in wedlock, or
(4) a court of competent jurisdiction judicially determines the father to be the child’s
father in a paternity proceeding.
See id.
The first three methods for establishing inheritance rights under Oklahoma law are
not applicable here because each method requires that the purported father acknowledge
paternity, which the evidence does not show. See Okla. Stat. Ann. tit. 84, § 215 (a)-(c). The children, therefore, must establish
inheritance rights under the fourth method. See Okla. Stat. Ann. tit. 84, § 215(d). Although no court has determined through paternity
proceedings that the deceased number holder was the children’s father, the agency
does not apply a state inheritance law requirement that an individual must obtain
a court determination of paternity. See 20 C.F.R. § 404.355(b)(2) (use of state law standards). Instead, the agency decides
paternity using the standard of proof that the state court would use. Id.
Under Oklahoma law, the standard of proof to prove paternity is “clear and convincing
evidence.” See In the Matter of the Estate of King, 837 P.2d 463, 464 (Okla. 1990) (overruled on other grounds). Oklahoma courts define
“clear and convincing evidence” as “that measure or degree of proof which will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegation sought to be established.” In re A.L.F., 237 P.3d 217, 219 (Okla. 2010). Thus, in this case, an Oklahoma court would analyze
whether Ms. S~ has established by clear and convincing evidence that the deceased
number holder is the children’s father. The Oklahoma Uniform Parentage Act [3] applies to parental determinations in intestate and probate proceedings and governs
every determination of parentage in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-103(A);
In re Estate of Dicksion, 286 P.3d 283, 290 (Okla. 2012). Genetic testing is one means of establishing paternity
under the Oklahoma Uniform Parentage Act. Okla. Stat. Ann. tit. §§ 7700-501 – 7700-511;
Okla. Stat. Ann. tit. 10, § 7700-621 (genetic testing expert’s report is generally
admissible as evidence of the truth of the facts asserted in the report). In Oklahoma,
a man is rebuttably identified as the child’s father if genetic testing reveals at
least a 99 percent probability of paternity and a combined paternity index of at least
100 to 1. Okla. Stat. Ann. tit. 10, § 7700-505(A).
Additionally, to be admissible evidence to establish paternity, genetic testing must
satisfy certain other requirements. Okla. Stat. Ann. tit. 10, § 7700-503. First, the
DNA testing must take place in a laboratory accredited by the American Association
of Blood Banks (AABB), the American Society for Histocompatibility and Immunogenetics,
or another accrediting body designated by the Secretary of the United States Department
of Health and Human Services. Okla. Stat. Ann. tit. 10, § 7700-503(A). Second, a laboratory
designee must sign the DNA test report under penalty of perjury. Okla. Stat. Ann.
tit. 10, § 7700-504(A). Third, testimony or documentation must establish a reliable
chain of custody. Okla. Stat. Ann. tit. 10, § 7700-504(B). [4]
When a genetic testing specimen is not available from an alleged father, as in this
case, a court may order genetic testing of the man’s other relatives, including parents,
siblings, other children of the man and their mothers, and other relatives. Okla.
Stat. Ann. tit. 10, § 7700-508(A). Here, because a DNA specimen was not available
from the deceased number holder, S~ submitted evidence, including genetic testing
of herself, the children, and B~, to establish a biological relationship between B~
and the children, and as a result, between the deceased number holder and the children.
The deceased number holder’s father (E~Sr.) was not tested, as the evidence shows
he was in jail at the time of the deceased number holder’s death and that his current
whereabouts are unknown.
As stated, under Oklahoma law, a DNA test result from a single relative of an alleged
father can establish the parent-child relationship between a deceased father and a
child. See In re Estate of Dicksion, 286 P.3d at 290-291 (finding DNA test results from a father’s brother can establish
the parent-child relationship between a deceased father and child); Okla. Stat. Ann.
tit. 10, § 7700-508(A) (listing the father’s relatives appropriate for genetic testing).
The DNA testing in this case complies with sections 7700-503 and 7700-504 of the Oklahoma
Uniform Parentage Act. First, the DNA test took place at LabCorp, an AABB-accredited
facility. See Okla. Stat. Ann. tit. 10, § 7700-503(A). Second, M~, Ph.D, the laboratory’s designee,
signed the DNA test reports before a notary public and verified the interpretation
of the results. See Okla. Stat. Ann. tit. 10, § 7700-504. Third, the DNA test records satisfy Oklahoma’s
chain of custody requirements. See Okla. Stat. Ann. tit 10, 7700-504(B).
The DNA test results also satisfy section 7700-505(A) of the Oklahoma law, which provides
that a man is rebuttably identified as the child’s father if the genetic testing reveals
at least a 99 percent probability of paternity and a combined paternity index of at
least 100 to 1. See 10 Okla. St. Ann. § 7700-505(A)(1)-(2). Specifically, S~ presented a certified DNA
test report dated December 3, 2013 that revealed a likelihood of grandmaternity of
119 to 1 and a 99.17 percent probability of grandmaternity with respect to C6 and
B~. A second DNA test report revealed a likelihood of grandmaternity of 91,126 to
1 and a 99.99 percent probability of grandmaternity with respect to C7 and B~. Both
DNA test reports state that B~ “could not be excluded as a biological grandparent”
of the children. The DNA test reports further state that the results “support the
allegation that a son of the grandmother is the biological father” of the children.
Thus, in our opinion, the grandparent DNA test reports support the parent-child relationship
between the children and the deceased number holder.
Under Oklahoma law, if genetic testing neither identifies nor excludes a man as the
father of a child, as in this case where he was deceased, other evidence is admissible
to adjudicate the issue of paternity. Okla. Stat. Ann. tit. 10, § 7700-631(3). Here,
S~ presented additional evidence that supports her claim that the children are the
deceased number holder’s natural children, including: (1) the deceased number holder’s
obituary, which stated that C6 and C7 were his sons, and that the deceased number
holder was the only son of B~ and E~Sr. and, (2) the September 1997 Oklahoma divorce
decree, which stated that B~ and E~Sr., had only one son (the deceased number holder)
and included a paternity determination showing E~ Sr. as the deceased number holder’s
father, and identified B~ as the custodial parent for the deceased number holder and
his sister. Because both the Oklahoma divorce decree and the obituary establish the
deceased number holder’s relationship with B~ and show that the deceased number holder
was the only son of B~ and E~Sr., this evidence excludes the possibility of the deceased
number holder having another brother who could potentially be the children’s father.
In sum, the grandparent DNA test results showing a 99 percent probability of grandmaternity
combined with the additional evidence of the deceased number holder’s obituary and
the Oklahoma divorce decree would be admissible to induce an Oklahoma court to reach
a firm belief that the children are the deceased number holder’s children. See In re A.L.F., 237 P.3d at 219 (explaining that the clear and convincing evidence standard is
defined as “that measure of degree of proof which will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegation sought
to be established.”). Thus, we believe the totality of the evidence submitted constitutes
clear and convincing evidence that the children are the deceased number holder’s children,
and that they could inherit property as the deceased number holder’s natural children
under Oklahoma law. [5] As a result, the children have established that they are the deceased number holder’s
natural children under the Act. See 42 U.S.C. 416(h)(2)(A); 20 C.F.R. §§ 404.354, 404.355(a)(1).
The Parent-Child Relationship is Established Retroactively Under Oklahoma Law
Having found that the children are the deceased number holder’s natural children under
Oklahoma law, we next examine whether they are entitled to retroactive benefits and
the date used to determine the allowance of retroactive benefits. You asked if the
children can be awarded benefits only from the date of the DNA testing, which was
completed on December 3, 2013.
If the insured is deceased, a child becomes entitled to benefits the first month covered
by the application for benefits in which the child meets all the requirements for
entitlement, one of which is the establishment of the parent-child relationship. See 20 C.F.R. § 404.352(a)(1); see also 20 C.F.R. § 404.350(a) (to be entitled to child’s insurance benefits, you must apply,
be the child, be dependent on the insured, be unmarried, and be under age 18). Under
the regulations, an applicant for child’s insurance benefits may be paid retroactive
benefits for up to six months immediately before the month of application. See 20 C.F.R. § 404.621(a)(2) (filing for dependents’ benefits).[6] The POMS distinguishes between three types of natural children: legitimate children;
illegitimate children; and illegitimate children legitimated after birth, and the
effective date of the establishment of the parent-child relationship among these children.
See POMS GN 00306.001, 00306.010, 00306.050, 00306.055. These general POMS provisions recognize that “[u]under
current State laws, a child legitimated after birth is considered to be legitimate
from birth.” POMS GN 00306.050(A)(3); see also POMS GN 00306.085(A) (“A child is legitimate from the date of birth in these States,” which includes
Oklahoma). In addition, the general POMS provisions state that “[a]n act/event conferring
inheritance rights generally has effect only from the date of such act/event,” and
if the state law digest in the POMS “shows that a State law confers inheritance rights
based on an adjudication of paternity (but does not legitimate the child), and the
provision is effective prospectively only, the children’s status as the NH’s child
is established effective” as of the date of the evidence satisfying the applicable
standard of proof. POMS GN 00306.055(A)(3).
Oklahoma intestacy law has not maintained a substantive distinction between legitimate
and illegitimate children, and no longer provides a mechanism for legitimating children.
[7] See Okla. Stat. Ann. tit. 10, § 6.5 (effective July 1, 1974, the designations of “illegitimate”
or “bastard” shall not be used to designate a child born out of wedlock). Section
7700-202 of the Uniform Parentage Act, which Oklahoma adopted in 2006, explains that
“[a] child born to parents who are not married to each other has the same rights under
the law as a child born to parents who are married to each other.” Okla. Stat. Ann.
tit. 10, § 7700-202 (equal rights of marital and nonmarital children). [8] As noted above, the Uniform Parentage Act applies to all parental determinations
in Oklahoma, including intestate and probate proceedings. See In re Estate of Dicksion, 286 P.3d at 290. Furthermore, Oklahoma intestate succession laws explain that once
a child establishes that he is a child of the father, a child born out of wedlock
stands in same relation as a child born in wedlock. See Okla. Stat. Ann. tit. 84, § 215. Therefore, having established that the children are
the deceased number holder’s children under Oklahoma intestacy law, they are considered
the deceased number holder’s children from birth under Oklahoma law for purposes of
determining their entitlement to retroactive benefits, and not prospectively from
the date of the DNA evidence. [9] If a claimant files an application after the first month the claimant could have
been entitled to benefits, the claimant may receive benefits for up to six months
immediately before the month in which he filed his application. 20 C.F.R. § 404.621(a)(2).
S~ filed a qualifying application on behalf of the children on December 6, 2013. Thus,
the children are entitled to retroactive benefits beginning June 6, 2013, six months
immediately before the month S~ filed their December 6, 2013, applications.
CONCLUSION
In our opinion, the totality of the evidence establishes that the children are the
deceased number holder’s natural children. Further, such parent-child relationship
is established retroactively, not prospectively only from the date of the DNA evidence
provided. Therefore, in our opinion, the agency may award child’s insurance benefits
effective June 6, 2013, six months immediately before the month S~ filed the December
6, 2013, application.
Sincerely,
Michael McGaughran
Regional Chief Counsel
By___________
Una McGeehan
Assistant Regional Counsel