The number holder (NH) was an Ohio resident at the time of his death; therefore, the Ohio law controls this matter. Under the Ohio intestacy law, the right to inherit is based on whether paternity can be established. The NH is presumed to be the claimant’s natural father under Ohio law, but there is clear and convincing evidence to rebut this presumption. We conclude the presumption of paternity would be rebutted and the child would not be able to establish inheritance rights under the Ohio law. The claimant should not be considered the NH’s child for purposes of child’s benefits.

You asked whether, for purposes of child’s benefits, a child would be considered the son of a deceased numberholder when a marital presumption of paternity applies but the child’s mother admits that the numberholder was not the biological father, his name does not appear on the child’s birth certificate, and the divorce decree between the numberholder and the mother does not list the child as the issue of their marriage. The numberholder was an Ohio resident at the time of his death, and, therefore, Ohio law controls this matter. For the reasons discussed below, we conclude that there is clear and convincing evidence that the numberholder was not the child’s biological father and, thus, the presumption of paternity would be rebutted and the child would not be able to establish inheritance rights under Ohio law.

FACTS

L~ has filed a claim on behalf of her son, M~, requesting surviving child’s benefits on the Social Security record of R~. M~ was born on March XX, 2000—three days after L~ and R~’s divorce was finalized on February XX, 2000.

Though M~ was conceived before the couple officially divorced, L~ and R~ had been separated since December 1996, and L~ admits that R~ was not the biological father and that she conceived M~ with another man while still legally married to R~. R~ is not listed as M~’s father on his birth certificate, and M~ was not identified as a child of the marriage in R~ and L~’s divorce decree. There is no evidence that M~ had any relationship with, or received any support from, R~ before R~’s death or that he inherited anything from R~’s estate after his death.

L~ previously filed a surviving child’s claim on R~’s Social Security record on July XX, 2008. Because L~ admitted that R~ was not M~’s biological father, the agency denied her claim. The agency evaluated her prior claim under Michigan law, but should have applied Ohio law because R~ was a resident of Ohio at the time of his death.

ANALYSIS

Section 202(d) of the Social Security Act provides for the payment of benefits to the child of an insured numberholder who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that, when determining whether an applicant is the child of a numberholder, the agency will apply the law that would be applied to determine the inheritance of intestate personal property by the courts of the state where the numberholder was domiciled at the time of death. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 404.355(b)(4). Here, the numberholder was domiciled in Ohio at the time of his death. If M~ could inherit the numberholder’s property under Ohio’s intestate succession laws, therefore, he is the numberholder’s child for the purpose of eligibility for surviving child’s benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

Under Ohio intestacy law, the right to inherit is based on whether paternity can be established. See Ohio Rev. Code Ann. §§ 2105.06, 2105.17, 3111.01. A man is presumed to be the natural father of a child if he and the child’s mother are or have been married and the child is born during the marriage or within 300 days after the marriage is terminated by, among other things, divorce or dissolution. Ohio Rev. Code Ann. § 3111.03(A)(1). This presumption may be rebutted, however, with clear and convincing evidence. Ohio Rev. Code Ann. § 3111.03(B). “Clear and convincing evidence is that level of proof that would cause the trier of fact to develop a firm belief or conviction as to the facts sought to be proven.” In re Leitch, No. 13-01-11, 2001 WL 1338961, at *3 (Ohio Ct. App. Oct. 31, 2001). The Supreme Court of Ohio has held that “clear and convincing evidence sufficient to overcome the presumption of paternity contained in § 3111.03(A)(1) may be adduced through any or all of the enumerated methods prescribed by § 3111.10, including the submission of genetic test results.” Hulett v. Hulett, 544 N.E.2d 257, 294 (Ohio 1989).

Here, we conclude that there is clear and convincing evidence to rebut the presumption that R~ is M~’s natural father. First, though it was presumably against her interest to do so, L~ has admitted repeatedly, in relation to both of the claims she filed with the agency, that R~ is not M~’s biological father and that M~’s natural father is a man with whom she had an affair before her divorce from R~ was finalized. Ohio courts consider a party’s statements and admissions about paternity as relevant rebuttal evidence. See Thompson v. Thompson, No. 94CA859, 1995 WL 481480, at *4 (Ohio Ct. App. Aug. 10, 1995) (noting that appellant conceded in his appellate brief that he was not the biological father and that this, along with other evidence, established that appellant was not the natural father even though he acted in loco parentis for nine years, no one else had been established as the natural father, and the trial court determined it was in the best interests of the child to place her with appellant after his divorce from the child’s mother); Swingle v. Swingle, No. 88AP-852, 1989 WL 110995, at *3 (Ohio Ct. App. Sept. 26, 1989) (finding that presumed father rebutted presumption of paternity when he and child’s mother stipulated that they had not had sexual intercourse during the period of conception and two blood tests showed conflicting results about whether presumed father could be excluded as the child’s biological father).

Second, R~ is not named as the father on M~’s birth certificate, nor is M~ listed as a child of the marriage in R~ and L~’s divorce decree. These are two additional pieces of evidence that Ohio courts consider in paternity actions. See, e.g., Crago v. Kinzie, 733 N.E.2d 1219, 1223 (Ohio Ct. C.P. 2000) (holding that man, who identified himself as natural father on birth certificates of two children born to his girlfriend, could not disestablish himself as biological father by bringing claim and requesting genetic testing many years later), Nwabara v. Willacy, 733 N.E.2d 267, 272 (Ohio Ct. App. 1999) (rejecting alleged natural father’s argument that ex-husband, who was child’s presumed father, should be made party to paternity suit because divorce decree between mother and ex-husband noted mother was then pregnant and ex-husband was not biological father of child); Garrison v. Smith, 561 N.E.2d 1041, 1041-42 (Ohio Ct. App. 1988) (noting that there was not sufficient evidence to overcome presumption that first husband was child’s father when second husband, whom the mother alleged was the natural father, was not named as child’s father on birth certificate, child was not mentioned in divorce decree between mother and second husband, there was no evidence child was financially supported by second husband, and second husband had not taken steps to acknowledge child as his own or ensure she could inherit from him); Collett v. Cogar, No. 1301, 1987 WL 7586, at *5 (Ohio Ct. App. Mar. 6, 1987) (noting that, on remand, mother’s affidavit stating that presumed father was not the child’s natural father and divorce decree reflecting that the child was not the issue of the marriage should be considered as rebuttal evidence to presumption of paternity and raised material issue of fact sufficient to defeat summary judgment).

Finally, based on the facts provided, it does not appear that R~ did anything to establish a parent-child relationship with M~ during R~’s lifetime, acknowledge him as a son, or support him financially. Ohio courts will also consider whether the alleged or presumed father took affirmative steps to establish his paternity of the child. See Bratten v. Henry, No. 63952, 1993 WL 4753, at *6-7 (Ohio Ct. App. Jan. 7, 1993) (finding that even though child was born during marriage and listed in divorce decree as child of marriage, there was clear and convincing evidence to rebut presumption of ex-husband’s paternity when alleged natural father was listed as father on application for child’s birth registration, which included sworn statements that he was child’s father, and alleged natural father took affirmative steps to establish parent-child relationship and confer right to inheritance on child). In fact, here, other than the presumption of paternity, there appears to be no evidence to contradict L~’s admissions or the other evidence confirming that R~ is not M~’s natural father.

One case that is particularly instructive is H.N.H. v. H.M.F., No. 84642, 2005 WL 927004 (Ohio Ct. App. Apr. 21, 2005). In H.N.H., the biological father had an affair with the child’s mother while she was married to another man, who, in turn, would have been the presumed father under Ohio law. Id. ¶ 2. When the child was born, all three parties agreed that the husband would be listed as the father on the child’s birth certificate and that the biological father would not be responsible for supporting the child. Id. The child was raised by the husband, and the biological father never had any contact with the child. Id. Years later, the mother filed a claim for child support against the biological father, explaining that “she waited to seek support until [the child] was of an age to understand and benefit from a relationship with [the biological] father,” and genetic tests confirmed that he was, in fact, the child’s natural father—not the husband. Id. ¶ 4. The biological father appealed, arguing, in part, that the court erred by disestablishing the parent-child relationship between the mother’s husband, who was the presumed father, and the child. Id. ¶ 7. The appellate court disagreed, emphasizing that the parties all acknowledged that the husband was not the biological father and noting that if the biological father had wanted to prevent a later action for support, he should have signed the child’s birth certificate and then consented to the husband’s adoption of the child, which would have legally severed the relationship with the biological father. Id. ¶ 9. While the H.N.H. case also involved evidence of genetic testing that confirmed what all the parties already had acknowledged, the case suggests that admissions that the presumed father is not the natural father—particularly when reiterated by both the mother and the presumed father—can rebut the presumption of paternity. Though we do not know in this case whether M~’s biological father has informally acknowledged paternity, the facts are similar to H.N.H. in that L~ admits R~ was not M~’s biological father and R~’s tacit agreement with this is reflected by the fact that he was not named as the father on M~’s birth certificate, M~ was not listed as a child of the marriage in the divorce decree, and there is no evidence that R~ ever sought to establish a relationship with M~ or support him in any way before R~’s death.

You pointed out that POMS PR § 01115.039 cited an Ohio case that indicated a stipulation, affidavit, or similar party statement regarding paternity is not necessarily sufficient to overcome a presumption of paternity. See POMS PR § 01115.039L; see also Nelson v. Nelson, 460 N.E.2d 653 (Ohio Ct. App. 1983). But the Nelson case is distinguishable. In Nelson, a divorce decree granted the husband temporary custody of two children born during the marriage. Id. at 654. The husband, who had always known he was not the biological father of one of the children, then sought permanent custody of both children, but the mother objected. Id. The trial court determined that, even though the husband was not the biological father of one child, the husband still maintained the legal rights and obligations of a parent because the child was born during the marriage and the husband considered the child as his own. Id. at 653. While both husband and wife stipulated that the husband was not the child’s biological father and the husband stated the same in an affidavit he filed with the court, the court held this was not enough to overcome the presumption of paternity under § 3111.03(A). Id. at 654-55. Factoring heavily into the court’s decision, however, was the fact that the husband continued to act as the child’s father for 12 years and that the child did not know the husband was not his biological father—the court did not wish to disturb that well-established relationship between parent and child, which the husband had nurtured for so many years. Id. at 654-55. Specifically, the court noted that “[d]ue to the length of time that defendant considered the oldest child to be his son and the natural mother’s concomitant assent thereto, both parties are effectively estopped from denying parentage by stipulation.” Id.

The Nelson court did not hold, however, that stipulations, admissions, or affidavits could never be sufficient to rebut the presumption of paternity. The court merely refused to allow the parties’ stipulation that the presumed father was not the natural father to outweigh and disrupt the close 12 year relationship the husband had with his son. Here, there is no evidence that R~ had any relationship with M~ or that he supported M~ in any way. Unlike in Nelson, this is not a case where a court would be reluctant to let a stipulation defeat the presumed father’s wishes to care for and take custody of the child with whom he had a long-standing, parent-child relationship.

For these reasons, we conclude that M~ would not be able to establish inheritance rights from R~ under Ohio law and, thus, should not be considered R~’s child for purposes of child’s benefits.

CONCLUSION

As discussed above, though R~ is presumed to be M~’s natural father under Ohio law, there is clear and convincing evidence to rebut this presumption, including L~’s admission that R~ is not M~’s biological father, R~ was not named as the father on M~’s birth certificate, and M~ was not identified as a child of R~ and L~’s marriage in their divorce decree. Thus, M~ would not have inheritance rights with respect to R~ and, therefore, should not be considered his child for benefit purposes.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Catherine L. Gibbons

Assistant Regional Counsel

In the State of Ohio, it is reasonable to conclude that an Ohio court would find that the DNA test on a child, Z~, and the number holder’s NH’s two brothers in combination with the other evidence presented, would constitute clear and convincing evidence that the NH is the father of the child for purposes of taking under Ohio intestacy law.

The other evidence submitted by F~, Z~’s mother, corroborates her contention that the NH is Z~’s biological father, such that it constitutes clear and convincing evidence of paternity. The claimant submitted an Infant Hearing Risk Questionnaire on the day of Z~’s birth, showing the NH as Z~’s father. She also submitted a rental agreement signed by the NH and signed also by F~ showing that they had one son.

In sum, the Ohio court found that the totality of the evidence, including the genetic testing of the decedent’s brothers would constitute clear and convincing evidence of paternity for purposes of taking under Ohio intestacy law.

You have asked whether an Ohio court would find that the DNA test on a child, Z~, and the number holder’s (NH’s) two brothers in combination with the other evidence presented, would constitute clear and convincing evidence that the NH is the father of Z~ for purposes of taking under Ohio intestacy law. We believe that it does.

BACKGROUND

The NH died while domiciled in the State of Ohio. On August XX, 2010, F~, Z~’s mother, filed an application for child’s benefits on behalf of her son. Z~ was born on July XX, 1997. F~. alleges that the NH is Z~’s biological father.

In support of Z~’s claim, F~ M. submitted a DNA analysis report from GenQuest DNA Analysis Laboratory. Z~’s DNA was compared to the DNA of two of the NH’s brothers. That analysis indicated that the profiles of Z~ and his alleged uncles are identical and that this profile occurs approximately in 1 of 1,000 male members of the Caucasian population. This frequency was calculated using a confidence interval of 95%.

In addition to the DNA report, F~ submitted an Infant Hearing Risk Questionnaire apparently signed by F~ on the day of Z~’s birth, showing the NH as Z~s father. She also submitted a rental agreement dated February XX, 2002, signed by the NH and F~ showing that they had one son, age 4.5. This age is consistent with Z~’s date of birth. Moreover, the residence address on both documents is the same.

F~. also submitted was a copy of the NH’s newspaper obituary and the guestbook from the NH’s funeral. The obituary states that Z~ was the son of the NH and F~. In addition, many of the entries in the guestbook refer to Z~ as the NH’s son.

DISCUSSION

You have asked whether a minor child, Z~, is entitled to surviving child’s insurance benefits on the earnings record of the NH. In posing this question, you have asked us to determine whether the following evidence submitted by Z~’s mother would constitute clear and convincing evidence of paternity for purposes of inheritance under Ohio’s intestacy law: the DNA analysis from two of the NH’s brothers and Z~, an infant Hearing Risk Questionnaire showing the NH as Z~’s father, a rental agreement signed by the NH showing that he had one son the same age as Z~, and the obituary and guestbook from the NH’s funeral which refer to Z~ as the NH’s son. We believe that Ohio probate courts would consider the uncles’ DNA test results in determining paternity and that an Ohio court would conclude that the evidence in totality would constitute clear and convincing evidence that the NH was Z~’s father for purposes of taking intestate under Ohio law. Therefore, we believe that Z~ is entitled to surviving child’s insurance benefits on the NH’s account.

Under Section 202(d)(1) of the Social Security Act, an individual may be entitled to surviving child’s insurance benefits if he is the child of an insured individual and was dependent on the insured at the time of the insured’s death. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. The Act’s definition of child is met if the applicant is able to inherit from the insured under state law if the insured were to die without leaving a will. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Thus, Z~ is the child of the NH if he can inherit NH’s personal property under Ohio’s laws of intestate succession.

If, under State law, Z~ can take intestate personal property as the deceased wage earner’s child, he is considered the wage earner’s child for Social Security benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). The Commissioner applies the law that would determine the devolution of intestate personal property by the courts of the State where the wage earner was domiciled at death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Here, you have indicated that the NH was domiciled in Ohio when he died; therefore, Ohio intestacy laws apply to determine whether Z~ could inherit from him as his child.

Under Ohio intestacy law, children born out of wedlock can inherit as if born in lawful wedlock. See Ohio Rev. Code Ann. § 2105.17. An out of wedlock child can establish a parent child relationship pursuant to the Ohio Parentage Act. See Ohio Rev. Code Ann. § 3111, et. seq.; POMS GN 00306.595(B). Although the Ohio courts have split on this issue, some Ohio courts have found that parentage actions may be brought even when the putative father is deceased. See In re Estate of Hicks, 629 N.E.2d 1086, 1088 (Ohio Ct. App. 1993). In any event, even if state law required the action to be brought before the putative father died, SSA would not apply that law. 20 C.F.R. § 404.355(b)(2).

The Ohio Parentage Act lists various provisions of that law that legitimate a child. During a putative father’s life, paternity is established by a preponderance of the evidence. However, after a putative father’s death, paternity would likely need to be established by clear and convincing evidence. We have previously advised that the clear and convincing evidence standard of proof should be applied in posthumous paternity cases based on the Ohio court’s suggestion that it would require a heightened standard of proof in Brookbank v. Gray, 658 N.E.2d 724, 727, 729 (Ohio 1996). See POMS GN 00306.595(D). Clear and convincing evidence requires more certainty on the part of the fact-finder than a “preponderance of the evidence” standard (more than 50%), but less certainty than the “beyond a reasonable doubt” standard. According to the Ohio Parentage Act, evidence relating to paternity may include:

1. 1. 

   Evidence of sexual intercourse between the mother and the alleged father at any possible time of conception; or

2. 2. 

   An expert’s opinion concerning the statistical probability of the alleged father’s paternity, which opinion is based on the duration of the mother’s pregnancy;

3. 3. 

   Genetic test results, weighed in accordance with evidence, if available, of the statistical probability of the alleged father’s paternity;

4. 4. 

   Medical evidence relating to the alleged father’s paternity of the child based on tests performed by experts; or

5. 5. 

   All other evidence that is relevant to the issue of paternity of the child.

Ohio Rev. Code Ann. § 3111.10.

We believe that, based on the totality of the evidence submitted, that an Ohio court would find clear and convincing evidence of paternity such that Z~ would be entitled to inherit from the NH under Ohio Parentage Act. There is no specific provision for DNA testing of an alleged father’s brother. See Ohio Rev. Code Ann. § 3111.09. Nevertheless, the DNA test results performed on the two brothers would constitute other evidence which may be considered in determining whether a father and child relationship existed between the number holder and the child. See Ohio Rev. Code Ann. § 3111.10(C), (E) (admitting both genetic test results not limited to tests on the father and any other relevant evidence.). Absent objection, Ohio courts admit and consider genetic testing in determining paternity. See Ohio Rev. Code Ann. § 3111.12. While this testing by itself only shows the genetic probability that Z~ is related to the NH and his brothers without conclusive establishment that the NH (and not some other member of the family) is the father, there is no evidence to suggest that Z~’s mother had an intimate relationship with any member of the NH’s family except for the NH. At least one other state court has noted that, while genetic testing of an uncle would not, by itself, rise to the level of clear and convincing evidence in that state, the genetic testing, in addition to other evidence, could satisfy that standard. Carson v. Astrue, Slip Op. 2010 WL 4977055 (Dist. N.C. Nov. 8, 2010). Another state court has found that genetic testing of a decedent’s brother, in combination with corroborating evidence, satisfied the “clear and convincing” standard. See Estate of Kendrick v. Gorden, 46 So.3d 386 (Miss. Ct. App. Oct. 26, 2010). While this evidence, alone, may not rise to the level of clear and convincing evidence, the additional evidence submitted in corroboration with these test results would likely satisfy an Ohio court.

Specifically, the other evidence submitted corroborates Z~’s mother’s contention that the NH is Z~’s biological father, such that it constitutes clear and convincing evidence of paternity. The claimant has submitted an Infant Hearing Risk Questionnaire apparently signed by F~ on the day of Z~’s birth, showing the NH as Z~’s father. She also submitted a rental agreement dated February XX, 2002, signed by the NH and signed also by F~ showing that they had one son, age 4.5. This age is consistent with Z~’s date of birth. Moreover, the residence address on the questionnaire and the rental agreement is the same. The final piece of evidence submitted was a copy of the newspaper Obituary and Guestbook. The obituary states that Z~ was the son of the NH and F~. In addition, many of the entries in the guestbook refer to Z~ as the NH’s son. This suggests that the NH held himself out as Z~’s father. We believe that an Ohio court would find this evidence together with the DNA testing to constitute clear and convincing evidence that Z~ was the NH’s child.

CONCLUSION

In sum, we believe an Ohio court would find that the totality of the evidence, including the genetic testing of two of the decedent’s brothers, would constitute clear and convincing evidence of paternity for purposes of taking under Ohio intestacy law. Therefore, we find that Z~ may be entitled to child’s benefits on the NH’s account

Very truly yours,

Donna L. C~
Regional Chief Counsel, Region V

By: Anne M~

Assistant Regional Counsel