QUESTION PRESENTED
This memorandum is in response to your request for our legal opinion on the following
question: When does the parent-child relationship begin in the State of Oregon where
paternity was established by a DNA test?
SHORT ANSWER
After consideration of the relevant facts and law, we conclude that the parent-child
relationship existed at the date of birth.
FACTUAL BACKGROUND
Wesley J. M~ died on July 19, 2004. On August 28, 2004, Sonya K. L~ filed for survivor
benefits for her children, Landon M. L~ and Wesleigh J. M~. DNA testing conducted
on September 27, 2004, showed that there is a 99.99% probability that Mr. M~ is the
father of both children.
DISCUSSION
A. Statutory and Regulatory Background
A "child" of an individual who dies fully or currently insured under the Social Security
Act is entitled to child's insurance benefits if he or she:
(1) is the insured's child, based upon a relationship described in 20 C.F.R. sections
404.355 through 404.359;
(2) has applied for such benefits;
(3) is unmarried;
(4) is under the age of 18; and
(5) was dependent upon the insured individual at the time of the insured's death.
See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Here, Landon and Wesleigh are under the
age of 18, are not married, and have applied for benefits. Thus, the only issues are
whether they meet the first and fifth requirements above. If they meet the first requirement,
they are considered dependent upon Mr. M~, satisfying the fifth requirement. See 20 C.F.R. § 404.361.
Landon and Wesleigh can show that they are the children of the deceased wage earner
(the first requirement) in one of the following four ways:
they could inherit as Mr. M~'s natural child under state intestacy law. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1);
they are Mr. M~'s natural children and their mother, Sonya L~, and Mr. M~ went through a ceremony, which would have resulted
in a valid marriage between them except for a "legal impediment." See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2);
before his death, Mr. M~ acknowledged in writing that Landon and Wesleigh are his children; Mr. M~
was decreed by a court to be the father; or he was ordered by a court to contribute
to Landon and Wesleigh's support because they are his children. See Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3);
Mr. M~ is shown by evidence satisfactory to the Commissioner of Social Security to
have been the children's father, and he was living with or contributing to Landon and Wesleigh's support at the time of
his death. See Social Security Act § 216(h)(3)(c)(ii), 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §
404.355(a)(4).
Number one requires application of state intestacy law; numbers two through four require
the application of alternative federal standards. Here, there is no evidence relating
to number two, three and four. Therefore, Landon and Wesleigh must show they could
inherit as Mr. M~'s natural children.
B. Oregon Paternity and Inheritance Laws
Because Mr. M~ died domiciled in Oregon, the laws of the State of Oregon must be applied
to determine whether Landon and Wesleigh would be entitled to Mr. M~'s personal property
if he had died without a will (intestate).
Under Oregon law, a child may inherit under State intestacy law if he is the issue
of the decedent. See OR. REV. STAT. § 112.045. To inherit from his father, a child must establish the paternity.
See OR. REV. STAT. § 112.105. Paternity must be established either by the means identified
in OR. REV. STAT. § 109.070, or by written acknowledgement of the father during the
child's lifetime. See OR REV. STAT. § 112.105. One such method of establishment of paternity is found in
OR. REV. STAT. § 109.258, which creates a disputable presumption of paternity if results
of a blood test show a cumulative paternity index of 99 or greater. See
generally Plemel v. Walter, 735 P.2d 1209 (Or. 1987) (explaining the meaning of the paternity index and its
relationship to the probability of paternity of any one man). We have been presented
with no evidence rebutting this presumption of paternity. Therefore, by establishing
their paternity through the DNA test, Landon and Wesleigh may inherit from their father,
Mr. M~.
Program Operations Manual System (POMS) GN 00306.085 states that a child in Oregon is legitimate from the date of birth. See
also POMS GN 00306.050A, which states that a child legitimated after birth is considered to be legitimate
from birth. Thus, Landon and Wesleigh are legitimate as of the date of their birth.
Lucille Gonzales M~
Regional Chief Counsel
By: /s/
Joanne E. D~
Assistant Regional Counsel