The number holder (NH) was domiciled in Florida when he filed for child Insurance benefits (CIB) on the claimant’s behalf; therefore, we look to Florida intestacy law to determine whether the claimant is the NH’s child. The information provided does not indicate that NH ever participated in a marriage ceremony with claimant’s mother. Therefore, section 216(h)(2)(B) of the Act does not apply to this matter. The evidence also does not establish that the claimant is NH’s child under section 216(h)(3)(A) of the Act. Although, the evidence indicates NH acknowledged in writing that the beneficiary was his child, the DNA evidence and court order indicate the claimant did not meet the threshold requirement of section 216(h)(3) of being NH’s daughter.

The claimant currently receives CIB benefits on the NH’s record. Although the number holder executed a written acknowledgment of paternity, the information provided shows he has disestablished paternity based on genetic testing demonstrating that he could not be the beneficiary’s biological father. Neither the DNA tests nor the state court order disestablishing paternity would justify termination of a claimant’s benefits as the NH’s child. If a claimant has been entitled to benefits as the child of an insured individual, a later determination that another man is the child’s biological father is not a terminating event under the Act. However, based on new and material evidence, the agency may reopen a determination within four years of the date of the initial determination if the agency finds good cause.

In this case, the December 2014 DNA test results, the April 2015 court order, and NH’s December 2015 statements denying paternity are all new evidence because they did not exist when the NH applied for the CIB in March 2014 or when the agency approved the application in March 2014. Further, that evidence is material because there is a reasonable possibility that the evidence would change the agency’s determination to approve the application. Thus, the initial determination can be reopened.

The NH rebutted the presumption of paternity based on the DNA test results, the court order disestablishing paternity, and the NH’s statement denying paternity. Based on those facts, the claimant is not the NH’s child under Florida intestacy law.

QUESTION

You asked whether the Social Security Administration (agency) should terminate the beneficiary’s current entitlement to child’s insurance benefits (CIB) on the number holder’s earning record based on subsequent DNA evidence that excludes the number holder as the beneficiary’s biological father and a Florida court judgment declaring the number holder is not the beneficiary’s biological father. You also asked whether the agency’s initial determination awarding beneficiary CIB on number holder’s earnings record could be reopened based on new and material evidence.

ANSWER

For the reasons stated below, the agency, based on new and material evidence, should reopen the determination finding the beneficiary entitled to CIB on the number holder’s earning record. Although the number holder executed a written acknowledgment of paternity, the information provided shows he has disestablished paternity based on genetic testing demonstrating that he could not be the beneficiary’s biological father.

BACKGROUND

On March XX, 2013, C~, the number holder (NH), applied for old-age insurance benefits. At the time NH applied, he had no children that met the definition of a child who would be potentially eligible for CIB on his earnings record.

V~ (Beneficiary) was born on July XX, 2013, to N~ (Beneficiary’s mother). A copy of Beneficiary’s Florida Certification of Birth, issued March XX, 2014, identifies NH as Beneficiary’s father. The evidence provided does not include an acknowledgment of paternity signed by NH for purposes of listing him as Beneficiary’s father on the birth certificate. Additionally, there is no information that Beneficiary’s mother was ever married to NH.

On March XX, 2014, NH applied on Beneficiary’s behalf for CIB on his earnings record. The information provided indicates that NH also applied to be Beneficiary’s representative payee. In a Notice of Award dated March XX, 2014, the agency approved Beneficiary’s application for CIB, selected NH as Beneficiary’s representative payee, and established August 2013 as the first month that Beneficiary was entitled to CIB on NH’s earnings record.

On October XX, 2014, the agency selected Beneficiary’s mother to replace NH as Beneficiary’s representative payee.

On December XX, 2015, NH visited the Ocala, Florida field office and requested that the agency terminate benefits paid to Beneficiary’s mother as her representative payee. That day, NH signed a Statement of Claimant or Other Person alleging he was in an intimate relationship with Beneficiary’s mother when she became pregnant and gave birth to Beneficiary. NH alleged he signed Beneficiary’s birth certificate because he believed he was Beneficiary’s biological father. NH also alleged that around November 2013, Beneficiary experienced medical issues and her doctor advised obtaining DNA tests. NH presented DNA testing dated December XX, 2014, which excluded NH as Beneficiary’s biological father based on a zero percent probability of paternity. NH claimed that until he received the DNA test results, he was unaware that he was not Beneficiary’s biological father.

NH also presented evidence that on April XX, 2015, the Circuit Court for the Ninth Judicial Circuit, Orange County, Florida, issued a Final Judgment Disestablishing Paternity. The court, based on the December 2014 DNA test results, disestablished paternity pursuant to section 742.18 of the Florida Statutes and declared NH is not Beneficiary’s biological father. The court also ordered that it was in Beneficiary’s best interests for the appropriate State agency prepare an amended birth certificate to change Beneficiary’s name on the certificate to V2~. The court also noted that NH never had a court-ordered child support obligation for Beneficiary and terminated any such obligation. Finally, the court noted that Beneficiary’s mother had consented to the relief requested.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual entitled to old-age insurance benefits if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2016).^[1] “Child” includes “the child” of an insured individual. Act § 216(e); see 20 C.F.R. § 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show she is “the child” of an insured individual, within the meaning of section 216(e)(1), by meeting the requirements of section 216(h)(2)(A) of the Act.^[2] See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered “the child” of an insured individual if she could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when the claimant applied for CIB. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 132 S. Ct. at 2028-34; Program Operations Manual System (POMS) GN 00306.001(C)(1)(a), (C)(2)(a). The information provided indicates that NH was domiciled in Florida when he filed for CIB on Beneficiary’s behalf. Therefore, we look to Florida intestacy law to determine whether Claimant is NH’s child.

Under Florida intestacy law, a lineal descendent of a decedent is entitled to a share of the decedent’s estate not effectively disposed of by will. See Fla. Stat. Ann. §§ 732.101(1), 732.103(1) (2016; see also Fla. Stat. Ann. § 731.201(9) (2016) (defining “descendant” in the Florida Probate Code to include children and noting “descendant” is synonymous with “lineal descendant”). A person born out of wedlock is the lineal descendant of the putative father for the purposes of intestate succession if, among other things, the father acknowledges paternity in writing. See Fla. Stat. Ann. § 732.108(2)(c) (West 2016). The acknowledgment of paternity under Fla. Stat. Ann. § 732.108(2)(c) “requires no particular form of written acknowledgment.” Sanders ex rel. Wakefield v. Apfel, 85 F. Supp. 2d 1275, 1280-81 (M.D. Fla. 1999) (finding claimant was number holder’s child where he acknowledged paternity on birth certificate and insurance application).

Although Beneficiary’s birth certificate identifies NH as Beneficiary’s father, the birth certificate does not include NH’s signature as the informant, and the evidence provided does not otherwise include a written acknowledgment by NH that Beneficiary is his child. In Florida, however, there is a presumption that the father provided written acknowledgment/consent if his name appears on the birth certificate. See Fla. Stat. Ann. § 382.013(2)(c) (West 2016) (“If the mother is not married at the time of the birth, the name of the father may not be entered on the birth certificate without the execution of an affidavit signed by both the mother and the person to be named as the father.”); Flores v. Sanchez, 137 So.3d 1104, 1108-09 (Fla. Dist. Ct. App. 2014) (citing Fla. Stat. Ann. § 382.013(2)(c)); POMS GN 00306.120B; POMS GN ATL00306.120B (showing that in Florida, the father’s name on the birth certificate creates the presumption he provided written consent). Thus, NH’s name on Beneficiary’s birth certificate is sufficient to show NH provided a written acknowledgment of paternity. See Sanders, 85 F. Supp. 2d at 1280-81.

An individual who provided a written acknowledgment of paternity may disestablish paternity under Florida Statutes § 742.10(4) or § 742.18. See State of Florida, Dep’t of Revenue v. Travis, 971 So.3d 157, 160-61 (Fla. Dist. Ct. App. 2007). The April 2015 court order shows NH brought his claim under § 742.18; and the court, pursuant to that statute, found that the December 2014 DNA tests constituted newly discovered evidence sufficient to disestablish paternity.

The agency, however, is not bound by the decision of a State court in a proceeding to which SSA was not a party. See Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 322 (11th Cir. 1989) (“As a legal matter, the Appeals Council could determine that the state court judgment is not binding on the [Commissioner] on the issue of paternity of the children . . . , particularly when the [Commissioner] was not a party to the state court action, and no opposing interests were presented in the case”). Florida law also indicates a person is not bound by a prior judicial paternity decision when that person was “not a party to the litigation in which the issue was determined.” In re Estate of Robertson, 520 So. 2d 99, 102 (Fla. Dist. Ct. App. 1988); see also Voss v. Shalala, 32 F.3d 1269, 1271 (8th Cir. 1994) (holding ALJ not bound by State probate court judgments of paternity because agency was not party to probate proceedings and judgments were only part of broader inquiry into facts and applicable law). Nevertheless, the agency is not free to ignore an adjudication of a State court where the following prerequisites exist: (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. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy). In this case, the order does not meet all of the prerequisites in SSR 83-37c. Specifically, parties with opposing interests did not genuinely contest the issue of NH’s paternity. Nevertheless, the court’s determination provides further evidence to rebut the presumption that NH is Claimant’s father.

A Florida court may also disestablish NH’s paternity under § 742.10(4). See Fla. Stat. Ann.

§ 742.18(11) (West 2016) (nothing in § 742.18 precludes an individual from challenging a paternity determination pursuant to § 742.10(4)). Although NH brought his claim to disestablish paternity under § 742.18, we have also addressed § 742.10(4) because we believe a Florida court may find NH rebutted the presumption of paternity created under that statute when he acknowledgment paternity in writing. Under § 742.10(4), NH’s written acknowledgment of paternity created a rebuttable presumption of paternity. See Flores v. Sanchez, 137 So.3d 1104, 1108-09 (Fla. Dist. Ct. App. 2014). Section 742.10(4) provides that the individuals named on a birth certificate may rebut the presumption of paternity by rescinding the voluntary acknowledgment of paternity within sixty days of signing the acknowledgement. See Flores, 137 So.3d at 1109. The information provided does not show that NH or Beneficiary’s mother rescinded the voluntary acknowledgment within sixty days of signing it. After the expiration of the sixty-day period, an individual can only rebut the presumption by showing fraud, duress, or material mistake of fact. See id. at 1109. Although NH alleged in his Statement of Claimant or Other Person that he was unaware he was not Beneficiary’s biological father until he received the DNA test results, he did not indicate that fraud or duress caused him to sign the written acknowledgement of paternity. NH’s statement, however, appears to show that when he signed the acknowledgement, he was operating under a material mistake of fact as to whether he was Beneficiary’s biological father. Accordingly, a Florida court may find NH rebutted the presumption of paternity based on the DNA test results, the court order disestablishing paternity, and NH’s statement denying paternity.

However, neither the DNA tests nor the state court order disestablishing paternity would justify termination of a claimant’s benefits as the NH’s child. If a claimant has been entitled to benefits as the child of an insured individual, a later determination that another man is the child’s biological father is not a terminating event under the Act. See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). As a result, SSA may only stop a claimant’s benefits based on an insured individual’s earnings record if SSA can reopen the original child-status determination. See 20 C.F.R. § 404.988.

The agency may reopen a determination within four years of the date of the initial determination if the agency finds good cause. See 20 C.F.R. § 404.988(b). The Notice of Award approving Beneficiary’s application for CIB is dated March XX, 2014. Thus, the agency may reopen the determination based on good cause. Good cause for reopening includes receipt of “new and material evidence.” 20 C.F.R. § 404.989(a)(1). New and material evidence constitutes good cause to reopen. See 20 C.F.R. § 404.989(a)(1). Material evidence is “relevant and probative so that there is a reasonable possibility that it would change the administrative result.” Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987). The December 2014 DNA test results, the April 2015 court order, and NH’s December 2015 statements denying paternity are all new evidence because they did not exist when he applied on Beneficiary’s behalf for CIB in March 2014 or when the agency approved the application in March 2014. Further, that evidence is material because there is a reasonable possibility that the evidence would change the agency’s determination to approve the application. Thus, the initial determination can be reopened.

CONCLUSION

A Florida court may find NH rebutted the presumption of paternity based on the DNA test results, the court order disestablishing paternity, and NH’s statement denying paternity. Thus, Beneficiary is not NH’s child under Florida intestacy law. Accordingly, Beneficiary is not NH’s child under section 216(h)(2)(A) of the Act for determining Beneficiary’s continuing entitlement to CIB on NH’s earnings record. Further, the agency has received new and material evidence sufficient to reopen the determination finding Beneficiary entitled to CIB on NH’s earning record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Jennifer L. Patel

Assistant Regional Counsel

NH and spouse married in Canada in May 2008. The NH and spouse produced a marriage certificate from Ontario, Canada and our office has previously concluded that the marriage is valid under Florida law. The NH lives in Florida and we look to the Florida Intestacy Law to determine the parent-child relationship. The spouse entered into an Agreement for Artificial Insemination in October 2009 with a sperm donor. The donor finally and irrevocably waived his paternity rights. The donor would not attempt to form a parent-child relationship with any child conceived by the spouse using the donor’s sperm and consented in advance to the adoption of any child conceived through the process by NH, who was the intended co-parent for any such child.

Under the Florida law, a child’s birth in wedlock creates a strong presumption of parentage. There is no indication anyone else has challenged the relationship between NH and Claimant. The donor is barred from challenging that relationship. Under Florida law, intestate property passes to a decedent’s heirs as prescribed by the Florida Probate Code. Heirs include the decedent’s children. The NH’s marriage to the spouse indicates the Claimant is NH’s child for CIB purposes.

QUESTION

You have asked whether the claimant, who was conceived through artificial insemination and born to a woman who is the same-sex spouse of the number holder, is the number holder’s child for determining the claimant’s entitlement to child insurance benefits (CIB) on the number holder’s earnings record.

OPINION

The claimant is the number holder’s child for determining the claimant’s entitlement to CIB on the number holder’s earnings record.

 

BACKGROUND

M2~ (NH) married M1~ in Canada in May 2008. M1~ entered into an “Agreement for Artificial Insemination” in October 2009 with a sperm donor. The agreement states that the donor finally and irrevocably waived his paternity rights and would not “attempt to form a parent-child relationship” with any child conceived by M1~ using the donor’s sperm. He also agreed “in advance to consent to the adoption of any child conceived through [the] process” by NH, who was the “intended co-parent” for any such child. The agreement provides that it should be construed under Florida law, including Florida Statute 742.14, and bears the signature of a Florida notary.

M1~ became pregnant through artificial insemination using sperm from this donor and gave birth to K~(Claimant) in January 2011. The evidence provided does not indicate that NH contributed biological material for Claimant’s conception.

NH applied for disability insurance benefits (DIB) on January xx, 20xx, and SSA found NH entitled to DIB. NH identified Claimant as her child in her DIB application. NH applied for CIB on Claimant’s behalf on July xx, 20xx. In the CIB application, NH indicated she lived in Tallahassee, Florida.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual entitled to DIB if the claimant is the individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2015).^[3] “Child” includes “the child” of an insured individual. Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027 (2012). A claimant may show she is “the child” of a disabled insured individual, within the meaning of section 216(e)(1), by meeting the requirements in section 216(h)(2)(A) of the Act. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled at the time of the claimant’s application for CIB. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(3); Program Operations Manual System (POMS) GN 00306.001C.2.a.; Capato, 132 S. Ct. at 2028; Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989).

NH indicated she lived in Florida when she applied for CIB on Claimant’s behalf. Therefore, we look to Florida intestacy law to determine whether Claimant is NH’s child for CIB purposes. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(3). Under Florida law, intestate property passes to a decedent’s heirs as prescribed by the Florida Probate Code.^[4] See Fla. Stat. Ann. § 732.101(1) (West 2015). Heirs include the decedent’s children. See Fla. Stat. Ann. § 732.103(1) (West 2015) (noting that, after a spouse’s share, a decedent’s intestate property goes to “descendants”); Fla. Stat. Ann. § 731.201(9) (West 2015) (defining “descendant” to include children).

NH’s marriage to M1~ indicates Claimant is NH’s child for CIB purposes. NH and M1~ produced a marriage certificate from Ontario, Canada, indicating they were married in May 2008. Our office has previously concluded that such a marriage is valid under Florida law. See POMS PR 05825.011, PR 15-131 (Feb. 17, 2015). We have no evidence indicating the marriage was not in effect at the time of Claimant’s birth. A child’s birth in wedlock creates a strong presumption of parentage under Florida law. See Eldridge v. Eldridge, 16 So. 2d 163, 163-64 (Fla. 1944); POMS GN 00306.455.6.a; see also POMS PR 01010.11, PR 06-174 (Jun. 2006). The presumption applies even where there is no biological relationship between the parent and child. See e.g., Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305, 308 (Fla. 1993).^[5] There is no indication that Maize or anyone else has challenged the relationship between NH and Claimant.

Furthermore, Florida statutes provide that the donors to the artificial insemination, except for the “commissioning” couple, relinquish parental rights to the child conceived absent certain circumstances not applicable here. See Fla. Stat. Ann. § 742.14 (West 2015). This statute cannot be read or applied in a manner that would extinguish NH’s rights based on her same-sex marriage. See D.M.T. v. T.M.H., 129 So. 3d 320, 340 (Fla. 2013) (striking down an interpretation of this statute that was unconstitutional as applied to a same-sex couple), reh’g denied (Dec. 12, 2013); see also Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015). Thus, the only other party who could foreseeably contest the relationship between NH and Claimant – the sperm donor – is barred from challenging that relationship. Moreover, the sperm donor relinquished his paternity rights in a “final and irrevocable” agreement under Fla. Stat. § 742.14 and agreed not to attempt to form a parent-child relationship with Claimant. Thus, the evidence provided does not indicate there is any rebuttal to the presumption that Claimant is NH’s child for CIB purposes.^[6]

 

CONCLUSION

Claimant is NH’s child for determining Claimant’s entitlement to CIB on NH’s earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Jeffrey S. Wilson

Assistant Regional Counsel

This case is regarding whether conflicting information about the biological relationship between the deceased number holder (NH) and the beneficiary (a child receiving child insurance benefits (CIB)) on the NH’s record justifies changing SSA’s prior favorable determination that the beneficiary is the NH’s child for CIB purposes. Since the NH was domiciled in Florida when he died, the RCC looked to Florida intestacy law to make this determination.

SSA awarded CIB to the beneficiary based on the beneficiary’s mother presenting a school application that identified the beneficiary, identified the NH as the beneficiary’s father, and the NH’s signature. In addition, the NH contributed financially for the beneficiary’s education and included the beneficiary as a child on his health plan. After the CIB application was approved, the NH’s spouse at the time of his death submitted a statement claiming the NH was not the beneficiary’s biological father (the conflicting information). However, under Florida state law, the signed school application was sufficient evidence to establish the beneficiary was the NH’s descendant, and since the NH acknowledged the beneficiary was his child in writing, a later statement denying paternity or a DNA test disproving biological paternity would not even be sufficient to show the beneficiary was not the NH’s child. Also, the NH stated in his will, “[Beneficiary] is not my natural son but it is my desire that he be treated as my natural son and as my descendant for all purposes hereunder.” Between the statement in the NH’s will and evidence the beneficiary received financial support from the NH prior to his death, it is determined the beneficiary is the NH’s child for CIB purposes under Florida law and section 216(h)(2)(A) of the Act despite the lack of biological relationship between the NH and beneficiary.

QUESTION

You have asked whether conflicting information about the biological relationship between the number holder and the beneficiary, a child receiving child insurance benefits (CIB) on the number holder’s record, warrants a change in the prior Social Security Administration (SSA) determination that the beneficiary is the number holder’s child for CIB purposes.

OPINION

The contradictory information about the biological relationship between the number holder and the beneficiary does not warrant a change in SSA’s previous determination that the beneficiary is the number holder’s child for CIB purposes.

BACKGROUND

In July 19xx, K~ (Beneficiary) was born to L~ (Beneficiary’s mother), ^[7] whom William, the number holder (NH), had divorced sometime in early 1997. The pregnancy began after NH and Beneficiary’s mother divorced. Beneficiary’s birth certificate does not list a father. NH later married another individual.

SSA received evidence showing that NH died fully insured as a resident of Florida in October 2013. Beneficiary, through his mother, applied for CIB on NH’s earnings record. Beneficiary’s mother presented a school application from sometime on or before July 2013 ^[8] that identified Beneficiary by name, identified NH as Beneficiary’s father, and contained NH’s signature. In the school application, NH accepted financial responsibility for Beneficiary. NH made payments for Beneficiary’s education in February, May, July, and October 2013. NH also included Beneficiary as a child in NH’s health plan. The evidence indicates Beneficiary received regular and substantial contributions from NH before NH’s death.

Based on the above information, SSA initially determined sometime on or after October 21, 2013, that Beneficiary qualified for CIB on NH’s earnings record beginning that same month. SSA designated Beneficiary’s mother as Beneficiary’s representative payee.

After SSA approved Beneficiary’s CIB claim, NH’s spouse at the time of his death, Patricia, submitted to SSA statements from herself and other individuals claiming NH was not Beneficiary’s biological father. She also submitted a copy of NH’s will in which he stated, “I have two children, Cody and [Beneficiary]. [Beneficiary] is not my natural son but it is my desire that he be treated as my natural son and as my descendant for all purposes hereunder.”

Beneficiary’s mother responded with several statements from herself and other individuals stating NH was Beneficiary’s biological father or otherwise held himself out as such.

Patricia alleged DNA testing proved NH was not Beneficiary’s father. Beneficiary’s mother stated that DNA testing on NH and Beneficiary had not been done. DNA testing conducted on another man showed he was not Beneficiary’s father.

DISCUSSION

SSA initially asked whether the above information was sufficient to reopen and revise its initial determination that Beneficiary is NH’s child for CIB purposes. SSA may reopen a decision on its own initiative for any reason within 12 months of the date of its initial determination. See 20 C.F.R. §§ 404.987(b), 404.988(a). ^[9] SSA made its initial determination sometime on or after October xx, 20xx, and is still within the period during which it could reopen and revise its determination for any reason. It is therefore unnecessary to determine whether reopening and revision are warranted. However, we address below the proper treatment of the conflicting evidence in determining the status of a “child” under Florida law for CIB purposes.

To be eligible for CIB on the earnings record of an individual who died fully or currently insured, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1). “Child” includes “the child” of an insured individual. Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027 (2012). A claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), by meeting the requirements listed in section 216(h)(2)(A) of the Act. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) GN 00306.055A.1.; Capato, 132 S. Ct. at 2028; Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989).

Based on the information provided, NH was domiciled in Florida when he died. Therefore, we look to Florida intestacy law to determine whether Beneficiary is NH’s child for CIB purposes. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). Under Florida’s intestacy law, a lineal descendent of a decedent is entitled to a share of the decedent’s estate not effectively disposed of by will. See Fla. Stat. Ann. §§ 732.101(1), 732.103(1) (2014); see also Fla. Stat. Ann. § 731.201(9) (2014) (defining “descendant” in the Florida Probate Code to include children and noting “descendant” is synonymous with “lineal descendant”). Florida statutes provide that, for intestate succession, a person born out of wedlock is the lineal descendant of his or her father if, among other things, the father acknowledges paternity in writing. See Fla. Stat. Ann. § 732.108(2)(c) (2014).

The evidence presented shows Beneficiary was NH’s lineal descendant under Florida law because NH acknowledged paternity in writing. Beneficiary’s mother presented an application for school admission that identified Beneficiary by name, identified NH as Beneficiary’s father, and contained NH’s signature. The acknowledgment of paternity under Fla. Stat. Ann. § 732.108(2)(c) “requires no particular form of written acknowledgment.” Sanders ex rel. Wakefield v. Apfel, 85 F. Supp. 2d 1275, 1280-81 (M.D.Fla. 1999) (finding claimant was number holder’s child where he acknowledged paternity on birth certificate and insurance application). The school application NH signed is sufficient to show he acknowledged paternity of Beneficiary under Florida law.

NH’s statement in his will that Beneficiary was not his “natural son” does not affect Beneficiary’s status as NH’s child under Florida intestacy law or section 216(h)(2)(A) of the Act. Once a number holder acknowledges paternity of a claimant, a later statement denying paternity – or even scientific evidence disproving biological paternity – would be insufficient to show the claimant was not the number holder’s child under Florida law. See Sanders, 85 F. Supp. 2d at 1280-81; Holmen v. Holmen by Rahn, 697 So. 2d 866, 867 (Fla. Dist. Ct. App. 1997).

Thus, even if NH had intended to state in his will that he was not Beneficiary’s biological father, Florida law would nonetheless treat Beneficiary as NH’s child for intestacy purposes. Notably, for intestate succession, Florida courts have acknowledged a “legal father” is separate from the biological father and held that DNA testing is insufficient to undermine the rights of the legal father. See Glover v. Miller, 947 So. 2d 1254, 1257 (Fla. Dist. Ct. App. 2007) (noting that, despite allegations of biological paternity by one individual, the child still had a “legal father” who was another individual); see also Achumba v. Neustein, 793 So. 2d 1013, 1015 (Fla. Dist. Ct. App. 2001) (noting “paternity and legitimacy are no longer synonymous” under Florida law), overruled on other grounds by Greenfield v. Daniels, 51 So. 3d 421 (Fla. 2010); Sanders, 85 F.Supp. 2d at 1281 (noting there can be a “legal father” who is not a biological father under Florida law).

The conclusion that Beneficiary is NH’s child for CIB purposes is further supported by examining their respective interests. NH stated in his will that it was his “desire that [Beneficiary] be treated as my natural son and as my descendant for all purposes hereunder.” The evidence also indicates Beneficiary received regular and substantial contributions from NH before NH’s death. Florida courts have indicated that such interests should be considered when determining familial status for intestacy purposes. See Achumba, 793 So. 2d at 1015 (noting a “child’s legally recognized father has an unmistakable interest in maintaining the relationship with his child unimpugned”); Glover, 947 So. 2d at 1257 (discussing the possible impact of modifying paternity status on the decedent’s living twin brother).

Under this standard, the conflicting evidence does not show Beneficiary is not NH’s child. We note that NH’s statement in his will is somewhat ambiguous because it does not define the term “natural child.” The multiple letters submitted both by Patricia and Beneficiary’s mother are irrelevant to the extent they discuss the biological relationship between NH and Beneficiary. Instead, they show that NH cared for Beneficiary and treated him as a son, regardless of biological relationship. Additionally, the possible existence of DNA testing proving NH was not Beneficiary’s biological father would not, under Florida law, be sufficient to disprove paternity for intestacy purposes after NH’s death.

Based on the foregoing, Beneficiary is NH’s child for CIB purposes under Florida intestacy law and section 216(h)(2)(A) of the Act. Because Beneficiary is NH’s child under section 216(h)(2)(A), we do not address whether Beneficiary is NH’s child under section 216(h)(3)(C).

CONCLUSION

Beneficiary is NH’s child for CIB purposes, despite a possible lack of biological relationship between them. Accordingly, the new evidence does not warrant a change in SSA’s prior determination that Beneficiary is NH’s child for CIB purposes.

Sincerely,

Mary A. Sloan

Regional Chief Counsel

By: Jeffrey S. Wilson

Assistant Regional Counsel

According to the Florida Intestacy Laws, to establish paternity after the death of the putative father, the standard of proof should be clear, strong and unequivocal, that is, the person born out of wedlock should prove paternity by clear and convincing evidence. In Florida, “Heirs” are those persons who are entitled under the statutes of intestate succession to the property of a decedent. Heirs conceived before the decedent’s death, but born thereafter, inherit property as if they were born in the decedent’s lifetime. For a decedent without a surviving spouse, the entire intestate estate passes to the decedent’s descendants. 

In this case, the claimant is born out of wedlock but he is the lineal descendant of his father based on the fact that the paternity of the father was established by an adjudication after the death of the father. The DNA testing used samples from Claimant (C1), Claimant’s mother, and NH’s son (C2). The DNA test results, dated December XX, 2012, show a 99.8% probability that C1 and C2 are full-siblings, that is, they share the same biological mother and father. C2’s birth certificate lists NH as C2’s father, and SSA has already determined C2 to be NH’s surviving child. Additionally,  C1’s mother and maternal grandmother both reported that NH had admitted to being C1’s father and under Florida law, evidence of oral acknowledgments can provide some support for a paternity claim. We believe the information provided contains clear and convincing evidence that C1 is NH’s child under Florida intestacy law.

QUESTION

You asked whether DNA testing results showing a 99.8% probability of full-siblingship between the claimant and the son of a deceased number holder, along with statements from the claimant’s mother and maternal grandmother that the deceased number holder acknowledged paternity of the claimant, establishes the claimant is the number holder’s child for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record.  

OPINION

The DNA evidence and statements from the claimant’s mother and maternal grandmother provide clear and convincing evidence that the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record. 

BACKGROUND

According to the information provided, the Claimant’s, mother applied on C1’s behalf for CIB on the earnings record of Thomas , the number holder (NH). NH was a resident of Florida when he died on June xx, 20xx.  According to his death certificate, NH was never married, and the information provided does not indicate that C1’s mother was married to anyone else. 

C1 was born in July. Although her birth certificate does not list her father, C1’s mother reported that NH had admitted to being C1’s father, and C1’s maternal grandmother reported that NH had admitted to her that he was C1’s father. NH reportedly told C1’s maternal grandmother that he and C1’s mother had “made another” and that he could not wait for C1 “to get here.” 

C1’s mother also arranged for out-of-state DNA testing.  The DNA testing used samples from C1, C1’s mother, and NH’s son (C2). The DNA test results, dated December XX, 2012, show a 99.8% probability that C1 and C2 are full-siblings, that is, they share the same biological mother and father.  Social Security Administration (SSA) records show that C1 and C2 share a mother. C2’s birth certificate lists NH as C2’s father, and SSA has already determined C2 to be NH’s surviving child.

DISCUSSION

To be eligible for CIB on the earnings record of a fully or currently insured deceased individual, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2013). All references to the Code of Federal Regulations are to the 2013 edition.

“Child” includes “the child” of an insured individual. Act § 216(e); 20 C.F.R. § 404.354. When a claimant’s parents have not gone through a marriage ceremony, the claimant may show she is “the child” of a deceased individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) Nothing in the information provided suggests Claimant qualifies as a child under section 216(h)(3)(C).  The evidence does not indicate that NH acknowledged his paternity of Claimant in writing, include a court decree or order related to NH’s paternity of Claimant, or indicate NH was living with or contributing to Claimant’s support at the time of his death. As such, we do not further analyze section 216(h)(3)(C). of the Act. Under section 216(h)(2)(A), a claimant must show she would be entitled to a child’s share of the insured’s intestate personal property under the law of the State in which the insured was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) GN 00306.055(A)(1). According to NH’s death certificate, NH was domiciled in Florida when he died. Therefore, we look to Florida intestacy law to determine whether C1 is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). 

“Heirs” are “those persons . . . who are entitled under the statutes of intestate succession to the property of a decedent.” Fla. Stat. Ann. § 731.201(20) (West 2013).  Heirs conceived before the decedent’s death, but born thereafter, inherit property as if they were born in the decedent’s lifetime. Fla. Stat. Ann. § 732.106 (West 2013).  For a decedent without a surviving spouse, the entire intestate estate passes to the decedent’s descendants. Fla. Stat. Ann. § 732.103(1) (West 2013). A person born out of wedlock is the lineal descendant of his or her father if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void;

(b) The paternity of the father is established by an adjudication before or after the death of the father; or

(c) The father acknowledges his paternity in writing.

Fla. Stat. Ann. § 732.108(2) (2013). C1 could not qualify as a NH’s lineal descendant under subsection (a) because NH and C1’s mother did not attempt to marry. The evidence provided also does not indicate NH acknowledged in writing that Clamant was his child for the purposes of subsection (c). Therefore, the only means by which C1 could establish she is NH’s lineal descendant is by an adjudication of paternity. See Fla. Stat. Ann. § 732.108(2)(b). Although the record does not include an actual paternity adjudication under Fla. Stat. Ann. § 732.108(2)(b), SSA may still determine NH’s paternity of C1“by using the standard of proof that the State court would use as the basis for a determination of paternity.” 20 C.F.R. § 404.355(b)(2).

To establish paternity under Fla. Stat. Ann. § 732.108(2)(b) after the death of the putative father, “the standard of proof . . . should be clear, strong and unequivocal, that is, the person born out of wedlock should prove paternity by clear and convincing evidence.”  POMS PR 01210.011(A)(2) (quoting Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. Dist. Ct. App. 1991)) (internal quotation marks omitted); see Fagan v. Cramer, 877 So. 2d 945, 946 (Fla. Dist. Ct. App. 2004); In re Estate of R~ , 520 So. 2d 99, 101 (Fla. Dist. Ct. App. 1988). Although we have not found Florida case law that further defines “clear and convincing evidence” in the context of intestacy proceedings, Florida courts have described the “clear and convincing evidence” standard in other contexts as “something more than a simple preponderance and less than the standard applied in criminal cases, and that it is evidence free of substantial doubts or inconsistencies.” POMS PR 01210.011(A)(2) (quoting In re Interest of D.J.S., 563 So. 2d 655, 661 (Fla. Dist. Ct. App. 1990)) (internal quotation marks omitted). Courts also have defined the “clear and convincing evidence” standard as “that intermediate level of proof that entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” POMS PR 01210.011(A)(2) (quoting R.S. v. Dep’t of Children & Families, 831 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2002)) (internal quotation marks omitted).

We believe the information provided contains clear and convincing evidence that C1 is NH’s child under Florida intestacy law. C1’s mother and maternal grandmother both reported that NH had admitted to being C1’s father. NH reportedly told C1’s maternal grandmother that he and C1’s mother had “made another” and that he could not wait for C1 “to get here.” Under Florida law, evidence of oral acknowledgments can provide some support for a paternity claim. See POMS PR 11-020(B)(2) (citing Fla. Stat. Ann. § 732.108(2)(b)); see, e.g., Ezell-Titterton, Inc. v. A.K.F., 234 So. 2d 360, 367 (Fla. 1970) (finding decedent’s alleged “exuberance over the prospect of having a child by claimant’s mother” could support determination that decedent was child’s father).

Additionally, DNA test results show a 99.8% probability that C1 and C2 are full-siblings, that is, they share the same biological mother and father.  We have previously determined that Florida courts would accept genetic testing as probative evidence on the issue of paternity for intestacy purposes. See POMS PR 01115.011(B) (PR 09-032). SSA has already determined that C2 is NH’s surviving child, and the provided information shows no reason to question that determination.  The information also shows a high probability that C1 and C2 are siblings. Therefore, we need not review C2’s relationship to NH before interpreting the 99.8% probability that C1 and C2 are full siblings as a 98% probability that NH is C1’s father, given SSA’s knowledge that C1 and C2 share the same mother and that C2 is NH’s child. See Social Security Ruling (SSR) 06-02p (stating SSA may determine a claimant’s relationship to a number holder based on the claimant’s relationship with the number holder’s known child, without reviewing the known child’s relationship to a number holder, if SSA has already determined the known child qualifies as a child under section 216(h)(3), there is no reason to question that determination, and DNA testing results show a high probability of a sibling relationship between the claimant and known child).  If SSA qualified C2 for CIB under section 216(h)(2)(A) of the Act, we would not need to rely on SSR 06-02p to equate the likelihood of siblingship to a probability of paternity under state law, because SSA would have determined already that C2 could inherit as a child of NH under the appropriate state law. . 

SSA could determine C1 was NH’s child for purposes of her eligibility for CIB on NH’s earnings record. POMS PR 0115.011(H)(2) (finding DNA tests showing a 99.8% probability that claimant shared a father with the number holder’s son was clear and convincing evidence of paternity).

CONCLUSION

For the foregoing reasons, the evidence provides clear and convincing proof that C1 is NH’s child for purposes of intestate succession in Florida. Therefore, and SSA adjudicator could conclude C1 is NH’s child for determining her eligibility for CIB on NH’s earnings record. 

Sincerely,

Mary A. Sloan

Regional Chief Counsel

By: Kevin M. Parrington

Assistant Regional Counsel

The evidence of record, including a State court order declaring the deceased number holder the father of the claimant, does not establish the claimant as the number holder's child for purposes of child's insurance benefits on the number holder's earnings record. The record does not provide clear and convincing evidence that the number holder is the claimant's father for the purposes of Florida intestacy law. 

The record also does not provide sufficient evidence that the claimant could be deemed the number holder's child.  Therefore, the claimant is not the number holder's child for purposes of child's insurance benefits on the number holder's earnings record.

QUESTION

You asked whether the evidence of record, including a State court order declaring the deceased number holder the father of the claimant, establishes the claimant is the number holder's child for purposes of child's insurance benefits on the number holder's earnings record.

OPINION

The record does not provide clear and convincing evidence that the number holder is the claimant's father for the purposes of Florida intestacy law. The record also does not provide sufficient evidence that the claimant could be deemed the number holder's child. Therefore, the claimant is not the number holder's child for purposes of child's insurance benefits on the number holder's earnings record.

BACKGROUND

According to the information provided, B~ (Claimant) was born on February, in Florida. Claimant's birth certificate lists Carla as her mother.  Claimant's birth certificate does not name her father. The information indicates Claimant's mother was married to P~ when Claimant was born.  Although the record does not include a copy of the marriage certificate, a Joint Stipulation and Marital Settlement Agreement (Agreement) entered into on February xx, 20xx, states Claimant's mother and P~ were married on December xx, 19xx. The Agreement states the parties separated on or about March 19xx. The Agreement further states two children were born of the marriage, in 19xx and 19xx; Claimant is not listed as one of the two children.  On April xx, 20xx, a Florida court approved and incorporated the Agreement into a final judgment dissolving the marriage between Claimant's mother and P~.

Roy, the number holder (NH), died on June xx, 19xx. NH's death certificate indicates he was a resident of Florida when he died.  On August xx, 19xx, Claimant's mother applied on behalf of Claimant for child's insurance benefits (CIB) on NH's earnings record. In connection with Claimant's 1999 application, a Social Security Administration (SSA) claims representative contacted a child support worker to obtain evidence regarding NH's relationship with Claimant. The child support worker reported he had two files for Claimant, one naming P~ as Claimant's father, the other file naming NH as Claimant's father. The child support worker reported his agency had obtained DNA testing that showed P~ was not Claimant's father. The child support worker also reported his agency had planned to go to court regarding NH's possible paternity, but NH died before the commencement of any court proceedings.

The SSA claims representative also contacted T~ , NH's brother, regarding his knowledge of the alleged relationship between NH and Claimant's mother.  NH's brother did not want to discuss the matter, but acknowledged he had heard rumors Claimant was NH's child. NH's brother stated he could never say for certain Claimant was NH's child, and he stated he would never be willing to sign a statement to that effect. K~, then the wife of NH's brother (i.e., NH's sister-in-law at the time), reported the same information as NH's brother; she also was unwilling to sign any statement. On August xx, 19xx, SSA denied Claimant's application because Claimant's mother did not present sufficient evidence that Claimant was NH's child.

Claimant's mother filed a second CIB application on Claimant's behalf on October XX, 2007, which SSA denied on November xx, 20xx, because Claimant's mother failed to prove Claimant was NH's child. Claimant's mother filed a third CIB application on Claimant's behalf on February xx, 20xx. According to SSA records, the only new evidence Claimant's mother presented was an affidavit from K~ . According to the information provided, SSA no longer has a copy of this affidavit and Claimant's mother reported she did not have copy of the affidavit when contacted by SSA in connection with Claimant's current application. A claims representative found the affidavit suspicious because the affidavit was drafted on November xx, 20xx, but not signed by Katherine until November xx, 20xx; the affidavit had K~'s name spelled with a "C" instead of a "K"; and the affidavit did not list any relationship to Claimant or the Claimant mother or provide any contact information.  The claims representative also noted the Katherine who signed the affidavit was supposedly the same K~ who had previously declined to sign a statement declaring Claimant was NH's child.  SSA again denied Claimant's claim because Claimant's mother failed to prove Claimant was NH's child.

Claimant's mother filed a fourth CIB application on Claimant's behalf on December xx, 20xx.  Claimant's mother submitted a child relationship statement in which she claimed NH had admitted orally to his family that Claimant was his child. Claimant's mother indicated she had no documents or other information pertaining to NH's purported relationship with Claimant.  Claimant's mother also submitted an affidavit dated November xx, 20xx, from K~ , the ex-wife of NH's brother (i.e., NH's ex-sister-in-law). NH's ex-sister-in-law stated Claimant was NH's daughter.  NH's ex-sister-in-law also indicated NH had acknowledged Claimant was his child and stated NH's family knew Claimant was NH's child. A claims representative contacted NH's ex-sister-in-law on January xx, 20xx.  NH's ex-sister-in-law stated she was friends with Claimant's mother before they became involved with NH and his brother.  NH's ex-sister-in-law stated she was aware Claimant belonged to NH and claimed NH's brother, her ex-husband, knew Claimant was NH's child. The claims representative noted the statements by NH's ex-sister-in-law were contradictory to the statements made by her and NH's brother in 19xx. On January xx, 20xx, SSA denied Claimant's application because Claimant's mother did not provide other information showing Claimant was NH's child.

Claimant's mother filed a fifth CIB application on Claimant's behalf on March XX, 2009. Claimant's mother submitted an affidavit dated February XX, 2009, from NH's brother.  NH's brother stated Claimant was NH's child and "[t]here was never a question of [Claimant's] paternity . . . ." NH's brother also stated NH was in touch with Claimant's mother concerning Claimant's welfare and their relationship was very close.  A claims representative questioned the affidavit from NH's brother based on the 1999 statements of NH's brother that he could never say for certain that Claimant was NH's child and he would never sign a statement to that effect.  SSA denied Claimant's application, and Claimant's mother filed a request for reconsideration. SSA denied the request for reconsideration on August xx, 20xx. A claims representative indicated the denial was based on the contradictory and insufficient evidence regarding Claimant's relationship to NH.

On February xx, 20xx, Claimant's mother filed the sixth and current CIB application on Claimant's behalf. Claimant's mother submitted an Order of Summary Administration and Adjudicating Paternity from a Florida probate court.  The court noted the cause was before the court based on a petition filed by Claimant's mother on Claimant's behalf for summary administration of NH's estate and for an order adjudicating paternity after the death of the putative father.  The court found NH's estate qualified for summary adjudication, but acknowledged he died leaving no assets to be distributed. The court noted it heard testimony from Claimant's mother and NH's brother and reviewed case law.  The court did not mention other evidence or discuss case law. The court found "clear and convincing evidence to determine that [NH] is the biological father of" Claimant. The court declared NH "the legal and biological father of" Claimant and Claimant "a lineal and lawful heir of" NH.

Claimant's mother also submitted laboratory results of a paternity evaluation performed in October 20xx. Testing of genetic samples from Claimant, Claimant's mother, and Percy showed a zero percent probability of paternity and excluded Percy as Claimant's biological father. Although not clear from the record, the genetic testing could be the DNA testing obtained by the child support agency referenced by the SSA claims representative investigating Claimant's first CIB application in 1999.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual's "child." See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2011). All references to 20 C.F.R. are to the 2011 version unless otherwise noted.

"Child" includes "the child" of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354 (2010). A claimant may show she is "the child" of a deceased insured individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. Under section 216(h)(2)(A), a claimant is considered "the child" of the insured individual if the claimant could inherit the insured individual's intestate personal property under the law of the State in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989).

According to NH's death certificate, NH was domiciled in Florida when he died. Therefore, we look to Florida intestacy law to determine whether Claimant is NH's child for the purposes of section 216(h)(2)(A) of the Act. Under Florida intestacy law, a lineal descendent of a decedent is entitled to a share of the decedent's estate not effectively disposed of by will. See Fla. Stat. Ann. §§ 732.101(1), 732.103(1) (West 2011); see also Fla. Stat. Ann. § 731.201(9) (West 2011) (defining "descendant" in the Florida Probate Code to include children and noting "descendant" is synonymous with "lineal descendant"); Fla. Stat. Ann. § 731.201(3) ("'Child' includes a person entitled to take as a child under [the Florida Probate Code] by intestate succession from the parent whose relationship is involved"). The Florida Probate Code consists of Chapters 731-735 of Title XLII of the Florida Statutes. See Fla. Stat. Ann. § 731.005 (West 2011).

A strong presumption exists in Florida law that a child born in wedlock is legitimate, i.e., the husband is the father of the child. See B~, 880 F.2d at 321; Nevitt v. Bonomo, 53 So. 3d 1078, 1081 (Fla. Dist. Ct. App. 2010); In re Estate of R~, 520 So. 2d 99, 101 (Fla. Dist. Ct. App. 1988). "This presumption of legitimacy is one of the strongest rebuttable presumptions known to law." Dep't of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006) (internal quotation marks). A person alleging paternity by someone outside the marriage must present "clear and satisfactory" evidence to overcome the presumption. R~, 520 So. 2d at 101. "In general, the presumption will not be overcome 'unless common sense and reason are outraged by applying it to the case at hand.'" Lander v. Smith, 906 So. 2d 1130, 1133 (Fla. Dist. Ct. App. 2005) (quoting Dep't of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305, 309 (Fla. 1993)). "This means that 'there must be a clear and compelling reason based primarily on the child's best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father.'" Id. (quoting P~, 617 So. 2d at 309).

Claimant was born during the marriage of her mother and Percy. Therefore, Claimant is presumed to be Percy's child under Florida law. Furthermore, Florida law at the time of Claimant's birth stated, "If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction." Fla. Stat. Ann § 382.013(6)(a) (West 1996); see 1987 Fla. Sess. Law Serv. 87-387 § 11 (West) (adding the relevant language). Current Florida statute uses the same language. See Fla. Stat. Ann § 382.013(2)(a) (West 2011). The record does not include a court order from before 2011 determining paternity, and because Claimant's mother and Percy were married when Claimant was born, Percy would be considered Claimant's "legal father" even though he was not listed as Claimant's father on her birth certificate. See L~, 906 So. 2d at 1131 n.1.

Nevertheless, the record as a whole, including the fact that Percy was not listed on Claimant's birth certificate, indicates Percy was not Claimant's father. The Agreement states Claimant's mother and Percy separated on or about March 1995, approximately eleventh months before Claimant was born on February. The Agreement states two children were born of the marriage Claimant's mother and Percy, in 1991 and 1993. Claimant, born in 1996, is not one of the children listed, which indicates neither Claimant's mother nor Percy considered Claimant to be Percy's child. As discussed below, the record also includes contradictory statements from NH's brother and ex-sister-in-law regarding whether NH is Claimant's father. Although the statements from NH's brother and ex-sister-in-law do not clearly establish that Claimant was NH's child, their statements tend to support a finding that Percy was not Claimant's father.

Moreover, genetic testing of samples from Claimant, Claimant's mother, and Percy in October 1998 showed a zero percent probability of paternity, excluding Percy as Claimant's biological father. Florida case law indicates genetic testing, at least when considered with other evidence, may provide sufficient evidence to overcome the presumption that a child born in wedlock is the legitimate child of the husband. See Daniels v. Greenfield, 15 So. 3d 908, 914 (Fla. Dist. Ct. App. 2009); Fernandez v. Fernandez, 857 So. 2d 997, 999 (Fla. Dist. Ct. App. 2003). Other courts have noted genetic testing can disprove paternity. See, e.g., Handley v. Schweiker, 697 F.2d 999, 1005 (11th Cir. 1983) ("Blood tests can conclusively disprove paternity . . . without the need for more ordinary forms of testimony"); Families First v. Gooden, 439 S.E.2d 34, 38 (Ga. Ct. App. 1993) (noting genetic tests performed on husband excluded any possibility he was the father and remanding in part for trial court to instruct jury that if they found genetic testing authentic, they must conclude husband was not the natural parent). Furthermore, in any proceeding to determine paternity, "[i]f test results show the alleged father cannot be the biological father, the case shall be dismissed with prejudice." Fla. Stat. Ann § 742.12(4) (West 2011). Given the Agreement, Claimant's birth certificate, and the genetic testing, the record provides clear and satisfactory evidence to rebut the presumption that Claimant is P~'s child. The record also provides "a clear and compelling reason based primarily on [Claimant's] best interests to overcome the presumption of legitimacy." L~, 906 So. 2d at 1133 (citing P~, 617 So. 2d at 309). The Agreement indicates Claimant's mother and Percy separated approximately eleven months before Claimant was born, and Claimant was not listed as P~'s child in the Agreement. The record does not indicate P~ had or maintained any relationship with Claimant or provided any financial support for Claimant. Thus, overcoming the presumption would not sever any relevant relationship between Claimant and Percy. See P~, 617 So. 2d at 309 (noting overcoming presumption of legitimacy might be in child's best interest where child has been abandoned by mother's husband and was in need of support); F~, 857 So. 2d at 999 (finding it in children's best interests to overcome presumption of legitimacy in part because family was not intact "in a practical sense" and action did not disrupt children's lives because they had never known mother's husband as integral part of their family life).

Excluding Percy as Claimant's father, however, does not establish that Claimant is NH's child and lineal descendant for the purposes of inheriting NH's intestate estate. Under Florida intestacy law, a person born out of wedlock is the lineal descendant of his or her father if:

a. The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

b. The paternity of the father is established by an adjudication before or after the death of the father.

c. The paternity of the father is acknowledged in writing by the father.

Fla. Stat. Ann. § 732.108 (West 2011). Although section 732.108 refers to a person born "out of wedlock," Florida courts have applied the statute where a child born in wedlock alleges paternity by someone not a part of the marriage, for inheritance purposes. See B~, 880 F.2d at 321 (citing R~, 520 So. 2d at 99; Williams v. Estate of Long, 338 So. 2d 563 (Fla. Dist. Ct. App. 1976); In re Estate of J~, 339 So. 2d 237 (Fla. Dist. Ct. App. 1976)).

Claimant could not qualify as a NH's lineal descendant under subsection (a) of Fla. Stat. Ann § 732.108(2) because NH and Claimant's mother did not marry and the evidence does indicate they attempted to marry. The evidence provided also does not indicate NH acknowledged in writing that Clamant was his child for the purposes of subsection (c) of Fla. Stat. Ann § 732.108(2). Therefore, the only means by which Claimant could establish she is NH's lineal descendant is by an adjudication of paternity. See Fla. Stat. Ann. § 732.108(2)(b). Claimant's mother submitted an Order of Summary Administration and Adjudicating Paternity from on Florida probate court. The court found "clear and convincing evidence to determine that [NH] is the biological father of" Claimant. The court also declared NH "the legal and biological father of" Claimant and Claimant "a lineal and lawful heir of" NH.

SSA, however, is not bound by the decision of a State court in a proceeding to which SSA was not a party. See B~, 880 F.2d at 322 ("As a legal matter, the Appeals Council could determine that the state court judgment is not binding on the [Commissioner] on the issue of paternity of the children . . . , particularly when the [Commissioner] was not a party to the state court action, and no opposing interests were presented in the case"). Florida law also indicates a person is not bound by a prior judicial paternity decision when that person was "not a party to the litigation in which the issue was determined." R~, 520 So. 2d at 102, quoted in B~, 880 F.2d at 322; see also Voss v. Shalala, 32 F.3d 1269, 1271 (8th Cir. 1994) (holding ALJ not bound by State probate court judgments of paternity because SSA was not a party to probate proceedings and judgments were only part of broader inquiry into the facts and applicable law). Nevertheless, SSA is not free to ignore an adjudication of a State court where the following prerequisites exist: (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. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy). In this case, the order does not meet all of the prerequisites in SSR 83-37c. Specifically, parties with opposing interests did not genuinely contest the issues of NH's paternity and Claimant's status as a lineal descendant of NH and the court's order is not consistent with Florida law. The probate court had jurisdiction to determine NH's lineal descendants in intestate proceedings. See Fla. Stat. Ann. § 742.10(1) (West 2011); Fagan v. Cramer, 877 So. 2d 945, 946 (Fla. Dist. Ct. App. 2004) (citing In re Estate of S~, 685 So. 2d 1206, 1208 (Fla. 1996)). Florida law imposes a four-year statute of limitations on actions relating to the determination paternity, but the time does not begin to run until the child reaches the age of majority. See Fla. Stat. Ann. § 95.11(3)(b) (West 2011); S~, 685 So. 2d at 1210 (holding § 95.11(3)(b) applies to paternity adjudications under § 732.108(2)(b), but noting § 95.11(3)(b) does not bar a claim after death of putative father where claim filed within four years of child reaching majority). The issue of paternity also falls within the general category of domestic relations law. See Fla. Stat. Ann. § 742.10 (part of Florida's domestic relations statutes).

The court issued its order based on a petition filed by Claimant's mother on Claimant's behalf for summary administration of NH's estate and for an order adjudicating paternity. The court's order does not indicate anyone contested the petition. NH's brother testified before the court, but the court's order does not indicate NH's brother contested the relief sought by Claimant's mother. On the contrary, the court's order suggests NH's brother provided testimony in support of the petition filed by Claimant's mother. NH's brother may have had an interest in NH's estate, but NH died more than eleven years before the court issued its order and the court noted NH died leaving no assets to be distributed. Thus, the evidence does not suggest that anyone genuinely contested the issues of whether NH was Claimant's father or whether Claimant was NH's lineal descendant and lawful heir. See SSR 83-37c; see also B~, 880 F.2d at 322 (holding "the requirement of section [216(h)] that the [Commissioner] apply such law as would be applied by the courts of the State does not require the [Commissioner] to accept findings of fact made by a state court in an uncontested case").

The court's order also is not consistent with Florida intestacy law. To establish paternity under Fla. Stat. Ann. § 732.108(2)(b) after the death of the putative father, "the standard of proof . . . should be clear, strong and unequivocal, that is, the person born out of wedlock should prove paternity by clear and convincing evidence." Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. Dist. Ct. App. 1991); see F~, 877 So. 2d at 946; R~, 520 So. 2d at 101. Although we have not found Florida case law that further defines "clear and convincing evidence" in the context of intestacy proceedings, Florida courts have described the "clear and convincing evidence" standard in other contexts as "something more than a simple preponderance and less than the standard applied in criminal cases, and that it is evidence free of substantial doubts or inconsistencies." In re Interest of D.J.S., 563 So. 2d 655, 661 (Fla. Dist. Ct. App. 1990) (citing The Florida Bar v. Rayman, 238 So. 2d 594, 596 (Fla.1970)). Courts also have defined the "clear and convincing evidence" standard as "that intermediate level of proof that entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S. v. Dep't of Children & Families, 831 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (quoting In re D~, 645 So. 2d 398, 404 (Fla. 1994) (indentions and internal brackets omitted).

In Claimant's case, the court stated it considered testimony from Claimant's mother and NH's brother and reviewed case law. The court, however, did not recite the testimony of Claimant's mother or NH's brother, nor did the court explain how their testimony provided clear and convincing evidence that NH was Claimant's father. The court did not indicate it considered any other evidence. The court also did not mention or discuss the case law it considered. The court's order does not provide a sufficient discussion of the evidence or case law to conclude the court reached its conclusions in accordance with Florida law. SSA is not bound by the court's order, and the court's order was not entitled to any deference in determining whether NH was Claimant's father under Florida intestacy law.

Given the record as a whole, including the court's order, we believe a Florida court in a contested case would conclude the record does not provide clear and convincing evidence that NH was Claimant's father. See 20 C.F.R. § 404.355(b)(1), (b)(4); B~, 880 F.2d at 322 (stating the Commissioner may rely on his own assessment of the evidence, and considering court judgment and other evidence, substantial evidence supported decision that presumption of legitimacy was not rebutted); see also V~, 32 F.3d at 1271 (indicating Commissioner should consider State court judgments, although not binding, as part of broader inquiry into the facts and applicable law). The minimal discussion and cursory conclusions in the court's order, as discussed above, do not provide noteworthy evidence that NH was Claimant's father. Claimant's birth certificate indicates her last name is the same as NH's, but the birth certificate does not list NH as Claimant's father. The Agreement and genetic testing indicate Percy was not Claimant's father, but neither the Agreement nor the genetic testing suggests NH was Claimant's father.

The record also includes affidavits from NH's ex-sister-in-law and NH's brother, dated November 23, 2008, and February 26, 2009, respectively. Claimant's mother submitted the affidavits in connection with Claimant's fourth and fifth CIB applications, which the Agency denied. In their affidavits, NH's brother and NH's ex-sister-in-law alleged Claimant was NH's child and claimed NH had acknowledged Claimant was his child. As the Agency noted, however, earlier statements by NH's brother and NH's ex-sister-in-law contradicted their affidavits. In 1999, the same year NH died, an SSA claims representative contacted NH's brother and NH's ex-sister-in-law (then still married to NH's brother) regarding NH's possible paternity. NH's brother and did not want to discuss the matter and merely acknowledged he had heard rumors Claimant was NH's child. NH's brother stated he could not say for certain Claimant was NH's child, and he stated he would never be willing to sign a statement to that effect. NH's ex-sister-in-law similarly reported she had heard unsubstantiated rumors and was unwilling to sign any statement. The reports of NH's brother and NH's ex-sister-in-law in 1999 and their refusal to sign statements regarding NH's relationship with Claimant at that time raise significant questions regarding the veracity of their later affidavits. The Agency also questioned the veracity of another affidavit NH's ex-sister-in-law purportedly signed in 2007.

The statements and affidavits from NH's brother and NH's ex-sister-in-law do not provide clear, strong, and unequivocal evidence that NH was Claimant's child. See F~, 877 So. 2d at 946; B~, 586 So. 2d at 467; R~, 520 So. 2d at 101. The evidence from NH's brother and NH's ex-sister-in-law raise substantial doubts and inconsistencies, particularly given that their statements from 1999 are closer in time to Claimant's birth and the period when NH and Claimant could have had a relationship before NH's death in 1999. See D.J.S., 563 So. 2d at 661. As noted previously, "clear and convincing evidence" means "[t]he evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S., 831 So. 2d at 1277. The contrary nature of the evidence from NH's brother and NH's ex-sister-in-law could indicate their memories are not clear or without confusion, and given their statements and the other evidence, we cannot conclude without hesitancy that NH is Claimant's father. Thus, the record does not provide clear and convincing evidence that NH was Claimant's father for the purposes of Florida intestacy law. Therefore, Claimant was not NH's child under section 216(h)(2)(A) of the Act. Claimant could not be deemed NH's child under section 216(h)(2)(B) of the Act because nothing in the record indicates NH and Claimant's mother went through a marriage ceremony that might have resulted in a purported marriage. See Act § 216(h)(2)(B); 20 C.F.R. § 404.355(a)(2).

The evidence also does not establish Claimant as NH's child under section 216(h)(3)(C) of the Act. To qualify as "the child" of a deceased insured individual under section 216(h)(3)(C), a claimant must be the son or daughter of the insured individual and meet one of several other requirements. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.A, B. To show he or she is the son or daughter of an insured individual, the claimant must show he or she is the biological child of the insured individual. See Program Operations Manual System (POMS) GN 00306.100.D.1. The record does not indicate Claimant met the threshold requirement of section 216(h)(3)(C) of being NH's biological child. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.D.1. Moreover, Claimant did not provide evidence to satisfy the other requirements of section 216(h)(3)(C)—the record does not include a written acknowledgement of paternity by NH, a court order issued before NH's death, or evidence that NH lived with or contributed to the support of Claimant. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). Therefore, Claimant could not qualify as NH's child under section 216(h)(3)(C) of the Act.

CONCLUSION

The evidence does not establish that Claimant is NH's child for the purposes of CIB on NH's earning record.  

Sincerely,

Mary A. Sloan

Regional Chief Counsel

By: Brian C. Huberty

Assistant Regional Counsel

DNA testing showing a 99.99 percent probability of a familial relationship between the claimant and the number holder's brother when coupled with the statements by Claimant's mother that she did not have relations with the brother, meet the clear and convincing evidence standard for establishing paternity under Florida intestacy law.

QUESTION

In considering this claim for child's insurance benefits, you asked whether DNA testing showing a 99.99% probability of a family relationship between the child claimant and his uncle, the identical twin of the deceased number holder, meets the standard for clear and convincing evidence under Florida intestacy law to establish the child claimant as the child of the deceased number holder.

ANSWER

For the reasons set out below, we conclude that an Agency adjudicator could find the evidence provided satisfies Florida's clear and convincing evidence standard for establishing that the child claimant is the child of the deceased number holder.

FACTS

Peter , the number holder (NH), died on January XX, 1998, while domiciled in Florida. In April 1999, Karen (Claimant's mother) filed the first of five claims on behalf of her son, Nakeetric (Claimant), for child's insurance benefits on the earnings record of NH. The four earlier claims were denied because of insufficient evidence of paternity. Claimant's mother filed the fifth claim on behalf of Claimant on August XX, 2008, and submitted the results of DNA testing showing NH and his identical twin brother had a 99.99% probability of being the biological father of Claimant. Claimant's mother signed a statement asserting that she never had sexual relations with NH's twin brother. Claimant's birth certificate did not list a father. Although Claimant's mother said NH told two other people he was Claimant's father, this claim was not substantiated.

LEGAL AUTHORITY

To be eligible for child's benefits on the earnings record of a fully-insured, deceased individual, a claimant must be the individual's child. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2008). A "child" includes the natural child, adopted child or stepchild of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2008). One method for establishing one's status as the child of a deceased, insured individual appears in 216(h)(2)(A) of the Act, under a claimant must show that he would be entitled to a child's share of the insured's intestate personal property under the law of the state in which the insured was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). An applicant who would have the same status relative to taking intestate personal property as a child of the deceased number holder will be deemed to be a child of the deceased number holder. See Act § 216(h)(2)(A).

Because NH was a resident of Florida at the time of his death, Florida's law of intestate succession applies in determining Claimant's status as the child of NH for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). Under Florida law,

For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his or her father and is one of the natural kindred of all members of the father's family if . . . [t]he paternity of the father is established by an adjudication before or after the death of the father. . . .

FLA. STAT. ANN. § 732.108(2)(b) (2008).

The record does not include an actual paternity adjudication under FLA. STAT. ANN. § 732.108(2)(b), but the regulations state: "If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity." 20 C.F.R. § 404.355(b)(2); see Drake v. Apfel, No. 300CV1540H, 2001 WL 705784, at *2 (N.D. Tex. June 18, 2001) (noting 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

ANALYSIS

To be adjudicated a lineal descendant under Florida intestacy law, a child born out of wedlock must prove paternity by clear and convincing evidence. See Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. Dist. Ct. App. 1991). Clear and convincing is something "more than a simple preponderance" and less than the beyond-a-reasonable-doubt standard applied in criminal cases. In re Interest of D.J.S., 563 So. 2d 655, 661 (Fla. Dist. Ct. App. 1990).

Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

R.S. v. Dep't of Children and Families, 831 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re D~, 645 So. 2d 398, 404 (Fla. 1994).

Florida's paternity statutes distinguish between establishing paternity for child support purposes and for purposes of intestate succession. Under Florida's domestic relations law, Florida specifically permits scientific testing to determine paternity for purposes of support. See FLA. STAT. ANN. § 742.12 (2008). Under this statute, a court may require the child, mother and the alleged father to submit to scientific tests that are generally acceptable within the scientific community to show the probability of paternity. See id.

Unlike Florida's domestic relations paternity statute, Florida's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See FLA. STAT. ANN. § 732.108(2). Because Florida courts look to the law of other states for guidance in matters of first impression, we have looked to the court decisions of other states that address the genetic testing of a putative father's relatives in intestacy proceedings. See Williams v. Estate of Pender, 738 So. 2d 453, 456 (Fla. Dist. Ct. App. 1999) (adopts the clear and convincing evidence standard of proof in an action for "equitable" or "virtual" adoption by looking at law review articles that indicated a majority of states used that standard); White v. White, 710 So. 2d 208, 209 (Fla. Dist. Ct. App. 1998) (in the absence of a dispositive Florida case, court found foreign court decisions persuasive). Our review shows that a number of states approve the use of DNA testing as probative evidence for establishing a child/parent relationship. See, e.g., Bartlett v. Commonwealth ex. Rel. Gloria M. Calloway, 705 S.W.2d 470, 472-73 (Ky. 1986); Crowder v. Commonwealth, Ky., 745 S.W.2d 149, 151 (Ky. App. 1988) (Kentucky courts have allowed DNA test results to rebut the presumption that a husband, not a third party, was the father of a child); In re Estate of B~, No. E2004-02007-COA-R3-CV, 2005 WL 2333597, at *1 (Tenn. Ct. App. Sept. 23, 2005) (there was clear and convincing evidence that an illegitimate child was the decedent's child after DNA testing revealed a 99.34% probability that the decedent's sister was the illegitimate child's aunt); Brady v. Smith, 56 S.W.3d 523, 525 (Tenn. Ct. App. 2001) (DNA testing of the decedent used to established paternity for inheritance purposes); Chisolm v. Eakes, 573 So.2d 764, 766 (Miss. 1990) ("[t]he general rule appears to be that (genetic) results, properly authenticated and supported by other evidence, are admissible as evidence of paternity, but are not necessarily conclusive"); Estate of G~, 753 So.3d 1043, 1052 (Miss. 2000) (same); LeBlanc v. LeBlanc, 497 So.2d 1361, 1363-1364 (La. 1986) (Louisiana courts have found that DNA blood test results, plus other corroborating evidence, are sufficient to establish paternity by a preponderance of the evidence).

In addition, Florida courts have noted that the legislative intent of the present FLA. STAT. ANN. § 732.108 is to be more liberal in allowing children born out-of wedlock to inherit from their natural fathers, See In re R~, 520 So. 2d 99, 101-02 (Fla. Dist. Ct. App. 1988) (comparing the predecessor statute to section 732.108 and noting the "later statute is much broader than the one it replaced, being more liberal in allowing for inheritance by an illegitimate child" and "one of the underlying purposes of the statute is to permit children to inherit from their natural fathers"). Therefore, because the courts of Florida look to the decisions of other states on matters of first impression and because the legislative intent of Florida's intestacy statute was to be more liberal in allowing children to inherit from their natural fathers, we believe Florida courts would accept genetic testing as probative on the issue of paternity for intestacy purposes.

Moreover, had a determination of paternity been made under Florida's paternity statute, Fla. Stat. Ann. Sec. 742.10, based upon the DNA evidence, this would also establish paternity for the purpose of intestate succession. See In re Estate of S~, 685 So.2d 1206, 1208 (Fla. 1996) ("While it may be presumed that most paternity actions under Chapter 742 are brought in order to obtain support, any determination of paternity made in such proceedings also determines paternity for purposes of intestate succession"). See also Glover v. Miller, 947 So. 2d 1254, 1257 (Fla. Dist. Ct. App. 2007) ("where a chapter 742 paternity action has previously been brought, any resulting determination of paternity has the effect of determining the issue for intestate succession" (citing S~, 685 So. 2d at 1208). Although no paternity proceeding was brought here, this case law suggests that Florida would find genetic testing probative of the issue of paternity for intestacy purposes.

To satisfy Florida's clear and convincing evidence standard, the evidence must be "sufficient to convince the trier of fact without hesitancy." R.S., 831 So. 2d at 1277. The evidence offered to support Claimant's allegation that he is the natural child of NH consists of a DNA test and a statement from Claimant's mother. The DNA test indicates a 99.99% probability that NH or his identical twin brother, who share the same DNA, are the possible fathers of Claimant. In her statement, Claimant's mother denies having sexual relations with NH's twin. Program Operations Manual System (POMS) instructions related to DNA tests on a number holder's relatives instruct:

When evaluating blood/genetic test results of relatives of NH, do not routinely develop to determine if a male relative of NH may have fathered the child claimant unless:

• •

  The facts of the case, e.g., other evidence, statements, raise the issue; or

• •

  The RCC specifically directs such development. . . .

POMS GN 00306.065C.2.

We do not see any evidence to warrant additional development of the possibility that NH's twin may have fathered Claimant. The DNA test results submitted are probative and show a high probability of paternity. One could find those results, when coupled with the statements by Claimant's mother, meet the clear and convincing evidence standard for establishing paternity under Florida intestacy law. Therefore, an Agency adjudicator could conclude Claimant is NH's child for purposes of child's insurance benefits under Claimant's August 2008 application.

The Agency denied Claimant's prior applications due to insufficient evidence of paternity. Pursuant to 20 C.F.R. § 404.987 (2008), the Agency may reopen a decision under limited circumstances. The Agency may reopen a decision within four years of the initial determination if the Agency finds good cause for reopening. See 20 C.F.R. § 404.988(b) (2008). One avenue for establishing good cause for reopening exists if new and material evidence is furnished 20 C.F.R. § 404.989(a)(2) (2008).

Only the denial of Claimant's October 2007 application occurred within four years of the Agency's receipt of the DNA test results. The DNA evidence appears to be new and material evidence. Evidence is new if it is not duplicative or cumulative and is material if there is a reasonable possibility that the new evidence would have changed the outcome. See 20 C.F.R. § 404.989; POMS GN 04010.030 (new and material evidence is evidence that was not part of the file when the final determination was made, relates back to the time of the original determination, and shows facts that would result in a conclusion different from the conclusion originally reached). The DNA evidence is new in that it did not exist at the time of Claimant's 2007 application. The DNA evidence is material because, as discussed above, the results are probative evidence that Claimant is NH's child. Accordingly, the Agency may reopen the denial of Claimant's 2007 application based on the DNA evidence.

CONCLUSION

An SSA adjudicator could conclude the evidence supports the conclusion that Claimant would qualify as NH's child under Florida's clear and convincing evidence standard and for the purposes of child's insurance benefits. It also appears that SSA may reopen its denial of Claimant's 2007 application.

Very truly yours,

Mary A. Sloan

Regional Chief Counsel

By: Laurie G. Remter

Assistant Regional Counsel

Under Florida intestacy law, a written acknowledgment of paternity signed by the deceased number holder, if authenticated, would be sufficient to establish him as father of the claimant.

Additionally, such an acknowledgment would also establish the parent-child relationship under Section 216(h)(3) of the Social Security Act.

QUESTION

You have asked whether the child claimant is the child of the deceased number holder for the purposes of Title II benefits based on a notarized acknowledgement of paternity allegedly executed by the deceased number holder.

ANSWER

We believe the acknowledgment of paternity from the deceased number holder here establishes the child claimant as the child of the deceased number holder under Florida intestacy law and for the purposes of Title II benefits.

BACKGROUND

Lee, the deceased number holder (NH), died on May XX, 2007, while domiciled in Florida. On September XX, 2007, Leslie (Applicant), the aunt of Lamarr (Claimant), applied on Claimant's behalf for child's insurance benefits and the lump sum death payment on NH's earnings record. The information provided indicates NH and Claimant's mother never married, and NH did not sign Claimant's birth certificate. The information also indicates Claimant's mother is incarcerated and Applicant has custody of Claimant. Applicant reported that no court decreed NH to be Claimant's father or ordered him to provide child support. Applicant also reported that NH orally acknowledged Claimant was his child.

Applicant also submitted a written acknowledgment allegedly from NH dated February 28, 2007. NH purportedly acknowledged he was Claimant's father and Claimant was his son. NH also stated he had provided support to Claimant. Applicant submitted another written statement allegedly from NH dated February 21, 2007. The statement indicates NH granted his landlord the power to make health decisions on his behalf. The information also includes Applicant's Ohio court petition for custody of Claimant. As part of the June XX, 2007 petition, Applicant indicated Claimant's father was unknown.

DISCUSSION

To qualify for child's insurance benefits on the earnings record of an insured individual who has died, a claimant must be the insured individual's "child." See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2007). "Child" may include the natural child, adopted child, or stepchild of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2007). If a putative father is deceased and never married the child's mother, the child's status as the natural child of the putative father is governed by either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act. To establish his status as the surviving child of the deceased wage earner under section 216(h)(2)(A) of the Act, a child claimant must show that he would be entitled to a share of the wage earner's intestate personal property under the law of the state in which the wage earner was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2007).

NH was domiciled in Florida at the time of his death. Therefore, Florida intestacy law applies in determining whether Claimant was the child of NH for the purpose of intestate succession under section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). Florida intestacy law provides three alternative means by which a person born out of wedlock can establish that he or she is the heir of the putative father for the purposes of intestate succession:

1. (a) 

   The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void;

2. (b) 

   The paternity of the father is established by an adjudication before or after the death of the father; or

3. (c) 

   The paternity of the father is acknowledged in writing by the father.

FLA. STAT. ANN. § 732.108(2) (West 2007). Applicant presented a written statement allegedly from NH in which NH acknowledged that he was Claimant's father. If the written acknowledgment from NH is authentic, the written acknowledgment establishes Claimant as NH's child for purposes of intestate succession under Florida law. See FLA. STAT. ANN. § 732.108(2)(c); Holmen v. Holmen by Rahn, 697 So. 2d 866, 867-68 (Fla. Dist. Ct. App. 1997) (holding that a decedent's written acknowledgment settled the question of paternity for purposes of section 732.108, rejecting appellants attempt to present scientific testing and other evidence that the decedent was not the father of the child).

You expressed concern regarding the authenticity of NH's written acknowledgment based on other evidence Applicant submitted. You believe that a signature allegedly by NH on another written statement in which NH purportedly granted his landlord the power to make health decisions on his behalf is different from the signature on the written acknowledgement. You also note Applicant indicated on documents related to her petition for custody of Claimant filed on June XX, 2007, that Claimant's father was unknown.

Notarized documents generally are considered self-authenticating and admissible evidence under Florida law. Under Florida's evidence code, "[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required for: . . . (9) Any signature, document, or other matter declared by the Legislature to be presumptively or prima facie genuine or authentic." FLA. STAT. ANN. § 90.902(9) (West 2007). Acknowledgments required or authorized by Florida law may be taken or administered by or before any notary public, and the certificate of proof or acknowledgment shall be authenticated by the signature and official seal of the notary public. FLA. STAT. ANN. § 92.50(1) (West 2007). The certificate of proof or acknowledgement signed by the notary public with his or her seal is sufficient to authenticate each signature appearing on an acknowledgement for the purposes of admissibility in court. See Mills v. Barker, 664 So. 2d 1054, 1057-58 (Fla. Dist. Ct. App. 1995) (discussing FLA. STAT. ANN. §§ 90.902(9) and 92.50 in determining a document sufficiently authentic and admissible). Admissibility does not conclusively establish authenticity, but indicates initial sufficiency. See id. at 1057. A party may still attack the genuineness of the document, and the authenticity of a notarized document is an issue of fact for the court to decide. See id.; Mills v. Hamilton, 163 So. 857, 858-59 (Fla. 1935) (holding that a document certified by a notary public is presumptive evidence of the fact in the document and whether or not evidence overcomes the presumption was an issue of fact).

The written acknowledgment from NH is signed by a notary public with her seal and appears to comply with Florida law regarding proper notarization. See FLA. STAT. ANN. § 117.05(3)(a), (4), (5) (West 2007). Thus, a Florida court likely would consider NH's written acknowledgment presumptively authentic and admissible in court. See FLA. STAT. ANN. §§ 90.902(9), 92.50(1); Mills v. Barker, 664 So. 2d at 1057-58. Therefore, absent evidence undermining the authenticity of NH's written acknowledgment, the document would establish that Claimant is NH's child for purposes of intestate succession under Florida law. See FLA. STAT. ANN. § 732.108(2)(c); H~, 697 So. 2d at 867-68.

The other evidence is insufficient to overcome the presumptive authenticity of the notarized written acknowledgment from NH. We do not believe the written statement allegedly from NH in which he granted his landlord the power to make health decisions on his behalf provides a basis for challenging the authenticity of NH's written acknowledgment. The written statement was signed by a notary public with her seal and appears to comply with Florida law regarding proper notarization. See FLA. STAT. ANN. § 117.05(3)(a), (4), (5). Thus, a Florida court likely would consider the written statement presumptively authentic and admissible in court. See FLA. STAT. ANN. §§ 90.902(9), 92.50(1); Mills v. Barker, 664 So. 2d at 1057-58. However, we do not believe the signatures of NH on the two documents are significantly different so as to draw into question the authenticity of NH's written acknowledgment or NH's written statement. Moreover, even if the signatures were significantly different, we do not believe the differences would erode the authenticity of NH's written acknowledgment. We also do not believe Applicant's notations in the Ohio court documents regarding the name of Claimant's father undermines the authenticity of NH's written acknowledgment. Given the evidence presently available, we do not believe the Agency has a sufficient basis for discounting the authenticity of NH's written acknowledgment. Therefore, NH's written acknowledgment is sufficient to establish that Claimant's is NH's child under Florida intestacy law and section 216(h)(2)(A) of the Act for the purposes of Title II benefits.

If Claimant could not establish that he is the child of NH under Florida intestacy law and section 216(h)(2)(A) of the Act, the evidence may show that Claimant is the child of NH under section 216(h)(3)(C) of the Act. To establish child status under section 216(h)(3)(C) of the Act, a claimant must be the son or daughter of the number holder and show one of the following: (1) the deceased insured individual acknowledged in writing that the child was his child, (2) a court decreed the deceased insured individual to be the father of the child, (3) a court ordered the deceased insured individual to contribute to the support of the child, or (4) the deceased insured individual is the child's natural father and was living with or contributing to the support of the child at the time the deceased insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(b)(3), (4). Like the living-with requirement, the acknowledgment, court decree, or court order must have occurred before the number holder's death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3).

As discussed above, Applicant presented a notarized document in which NH acknowledged Claimant as his son. Other evidence suggests NH is not Claimant's father. Claimant's birth certificate does not identify anyone as Claimant's father and Applicant indicated in June 2007 that Claimant's father was unknown. However, the other evidence does not appear to be sufficient to override NH's written acknowledgment. See Program Operations Manual System GN 00306.100D1 ("evidence that is submitted showing that the NH is not the child's biological parent . . . must be very persuasive in order to override a written acknowledgment or court action."). Thus, NH's written acknowledgment would seem to establish Claimant as NH's biological son and his child under section 216(h)(3)(C)(i)(I). Claimant, therefore, likely would qualify as NH's child under section 216(h)(3)(C)(i)(I) of the Act for the purposes of Title II benefits.

CONCLUSION

We believe Claimant is NH's child for the purposes of child's insurance benefits and the lump sum death payment.

Very truly yours,

Mary A. Sloan

Regional Chief Counsel

By: Brian C. Hubert

Assistant Regional Counsel

Under Florida law, DNA testing showing a 98.3 percent probability of a sibling relationship with the number holder's known child, as well as family statements concerning the number holder's acknowledgment and evidence that the number holder supported the claimant, provides strong support for a conclusion that C1 is NH's child as determined under Florida's clear and convincing evidence standard.

QUESTION

In considering this child's claim for survivor's benefits, you asked whether DNA testing showing a 98.3% probability of a sibling relationship between the child claimant and a known child of the deceased number holder by another woman, as well as other documentary evidence, meets the standard for clear and convincing evidence under Florida intestacy law to establish the child claimant as the child of the deceased number holder.

ANSWER

For the reasons set out below, we conclude that an Agency adjudicator could find the evidence provided satisfies Florida's clear and convincing evidence standard for establishing that the child claimant is the child of the deceased number holder.

FACTS

Earl (NH) died on August XX, 2005, while domiciled in Florida. In September 2005, Carlethia (C1's mother) filed a claim on behalf of her son, Taylon (C1), for survivor benefits on the earnings record of NH. This claim was placed in a delayed status because C1's mother did not submit proof of C1's relationship to NH.

In an effort to establish C1 as the child of NH, C1's mother submitted DNA test results showing a 98.3% probability that C1 was the half-sibling of another child (C2) known to be the son of NH by another woman. NH's name was listed as C2's father on C2's birth certificate. Additionally, Social Security Administration (SSA) records indicate that the Agency determined C2 to be NH's natural child and found C2 entitled to survivor's benefits on NH's earnings record on August XX, 2005. A DNA test comparing samples from NH's sister and C1 proved inconclusive.

Additionally, C1's mother submitted a number of letters from individuals attesting that NH had orally acknowledged C1 as his son. NH's sister, Gwen C~, said C1 was her brother's son. She said NH had called her from the hospital on the day C1 was born and told her that he had a new son. Alice, the maternal grandmother of C1, said NH frequently acknowledged C1 as his son. She also said NH, C1, and C1's mother participated in family vacations together, as well as other family activities. Theresa, the mother of C2, said NH had acknowledged to her that C1 was his son, and that C1 and C2 were brothers. The case file contains additional letters submitted by a number of NH's friends stating NH had acknowledged C1 as his son.

There is also evidence indicating that NH made regular monthly payments of $50.00 to $60.00 to C1's mother in late 2003 and over the course of 2004. In at least one instance, NH appears to have directly paid the money into a bank account held jointly by C1 with his mother. A notice from the State of Florida's Department of Revenue Child Support Enforcement Division, dated January XX, 2007, indicates that C1's mother had filed a child support enforcement action against NH, which was being closed due to NH's death without assets.

STATUTORY AUTHORITY

To be eligible for child's benefits on the earnings record of a fully insured deceased individual, a claimant must be the individual's child. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2007). A "child" is defined as the child, adopted child or stepchild of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2007). When the putative father is deceased and never married the child's mother, the child's status as the surviving child of the putative father is governed by either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act. See Act § 216(h)(2)(A), (C); 20 C.F.R. § 404.355(a)(1), (3), (4) (2007). Because C1 appears to be the child of NH under section 216(h)(2)(A) of the Act, we do not address whether C1 might be consider NH's child under section 216(h)(3)(C) of the Act.

To establish his status as the surviving child of a deceased insured individual under section 216(h)(2)(A) of the Act, a child claimant must show that he would be entitled to a child's share of the insured's intestate personal property under the law of the state in which the insured was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). Applicants who would have the same status relative to taking intestate personal property as a child of the deceased number holder will be deemed to be a child of the deceased number holder. See Act § 216(h)(2)(A).

According to the record, NH was a resident of Florida at the time of his death. Therefore, Florida's law of intestate succession applies in determining C1's status as the child of NH for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4).

For a person born out of wedlock to establish the status of lineal descendant, Florida law provides as follows:

For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his or her father and is one of the natural kindred of all members of the father's family if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father.

(c) The paternity of the father is acknowledged in writing by the father.

FLA. STAT. ANN. § 732.108(2) (2007).

The record contains no evidence that C1's mother and NH participated in a marriage ceremony or that NH acknowledged in writing that he was C1's father. The record also does not include an actual paternity adjudication under FLA. STAT. ANN. § 732.108(2)(b), but the regulations state: "If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity." 20 C.F.R. § 404.355(b)(2); see Drake v. Apfel, No. 300CV1540H, 2001 WL 705784, at *2 (N.D. Tex. June 18, 2001) (noting 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

ANALYSIS

To be adjudicated a lineal descendant under Florida intestacy law, a child born out of wedlock must prove paternity by clear and convincing evidence. See Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. App. 1991). Clear and convincing is something "more than a simple preponderance" and less than the beyond-a-reasonable-doubt standard applied in criminal cases. In re Interest of D.J.S., 563 So. 2d 655, 661 (Fla. App. 1990).

Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

R.S. v. Dep't of Children and Families, 831 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re D~, 645 So.2d 398, 404 (Fla. 1994)).

Florida's paternity statutes distinguish between establishing paternity for child support purposes and for purposes of intestate succession. Under Florida's domestic relations law, Florida specifically permits scientific testing to determine paternity for purposes of support. See FLA. STAT. ANN. § 742.12 (2007). Under this statute, a court may require the child, mother and the alleged father to submit to scientific tests that are generally acceptable within the scientific community to show the probability of paternity. See Id.

Unlike Florida's domestic relations paternity statute, Florida's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See FLA. STAT. ANN. § 732.108(2). Because Florida courts look to the law of other states for guidance in matters of first impression, we have looked to the court decisions of other states that address the genetic testing of a putative father's relatives in intestacy proceedings. See Whtie v. Estate of Pender, 738 So.2d 453, 456 (Fla. Dist. Ct. App. 1999) (adopts the clear and convincing evidence standard of proof in an action for "equitable" or "virtual" adoption by looking at law review articles that indicated a majority of states used that standard); White v. White, 710 So.2d 208, 209 (Fla. Dist. Ct. App. 1998) (in the absence of a dispositive Florida case, court found foreign court decisions persuasive). Our review shows that a number of states approve the use of DNA testing as probative evidence for establishing a child/parent relationship. See Bartlett v. Commonwealth ex. Rel. Gloria M. Calloway, 705 S.W.2d 470, 472-73 (Ky. 1986); Crowder v. Commonwealth, Ky., 745 S.W.2d 149, 151 (Ky. App. 1988) (Kentucky courts have allowed DNA test results to rebut the presumption that a husband, not a third party, was the father of a child); In re Estate of B~, No. E2004-02007-COA-R3-CV, 2005 WL 2333597, at *1 (Tenn. Ct. App. Sept. 23, 2005) (there was clear and convincing evidence that an illegitimate child was the decedent's child after DNA testing revealed a 99.34% probability that the decedent's sister was the illegitimate child's aunt); Brady v. Smith, 56 S.W.3d 523, 525 (Tenn. Ct. App. 2001) (DNA testing of the decedent used to established paternity for inheritance purposes); Chisolm v. Eakes, 573 So.2d 764, 766 (Miss. 1990) ("[t]he general rule appears to be that (genetic) results, properly authenticated and supported by other evidence, are admissible as evidence of paternity, but are not necessarily conclusive"); Estate of G~, 753 So.3d 1043, 1052 (Miss. 2000) (same); LeBlanc v. LeBlanc, 497 So.2d 1361, 1363-1364 (La. 1986) (Louisiana courts have found that DNA blood test results, plus other corroborating evidence, are sufficient to establish paternity by a preponderance of the evidence).

In addition, Florida courts have noted that the legislative intent of the present FLA. STAT. ANN. § 732.108 is to be more liberal in allowing children born out-of wedlock to inherit from their natural fathers, See In re R~, 520 So. 2d 99, 101-02 (Fla. Dist. Ct. App. 1988) (compares the predecessor statute to section 732.108 and notes that the "later statute is much broader than the one it replaced, being more liberal in allowing for inheritance by an illegitimate child" and noting that "one of the underlying purposes of the statute is to permit children to inherit from their natural fathers"). Therefore, because the courts of Florida look to the decisions of other states on matters of first impression and because the legislative intent of Florida's intestacy statute was to be more liberal in allowing children to inherit from their natural fathers, we believe Florida courts would accept genetic testing as probative on the issue of paternity for intestacy purposes.

To satisfy Florida's clear and convincing evidence standard, the evidence must be "sufficient to convince the trier of fact without hesitancy." R.S., 831 So. 2d at 1277. The evidence offered to support C1's allegation that he is the natural child of NH consists of a DNA test and written statements of witnesses that NH had orally acknowledged the claimant as his natural child. Additionally, there is some evidence that NH may have provided monthly child support payments for C1's benefit. The DNA test results show the probability of a sibling relationship between C1 and C2,* NH's known child by another woman, is 98.3%. Because it is highly probable that C1 and C2 are brothers, and each child had different mothers, we conclude that the DNA test results submitted are probative and indicate a high probability that C1 is the child of NH.

In addition to the results of the DNA testing, the other documentary evidence provided in the case file-letters attesting to NH's acknowledgement of C1 and documents suggesting that NH provided support to C1--further bolsters C1's claim under the clear and convincing evidence standard. As noted above, NH's sister said C1 was her brother's son. NH called her from the hospital on the day C1 was born and told her that he had a new son. See Ezell-Titterton, Inc. v. A.K.F., 243 So.2d 360, 366 (Fla. 1970) (acknowledgment where putative father believes mother is pregnant with his child). C1's maternal grandmother stated that NH often acknowledged C1 as his son and participated in family activities with C1. See Id. at 366-67 (acknowledgment may be in form other than expressed statement). The mother of C2 said NH acknowledged C1 as his son and told her C1 and C2 were brothers. See In re Estate of B~, 361 So.2d 152, 155 (Fla. 1978) (requirement of written acknowledgment of paternity for inheritance by out-of-wedlock child deemed unconstitutional). Additionally, NH made regular monthly payments to C1's mother and a notice from Florida's Child Support Enforcement Division shows that NH was subject to a child support enforcement action for C1's benefit. Although additional DNA testing of NH's sister and C1 was inconclusive on the issue of relationship, that test did not preclude NH as the father of C1. We believe the evidence presented here, including the DNA testing showing a high probability of a sibling relationship with NH's known child, as well as the statements concerning NH's acknowledgment, provides strong support for a conclusion that C1 is NH's child as determined under Florida's clear and convincing evidence standard.

Conclusion

Therefore, we conclude that the evidence tends to support the conclusion that C1 would qualify as NH's child under Florida's clear and convincing evidence standard.

Sincerely,

Mary A. Sloan

Regional Chief Counsel

Richard V. Blake

Assistant Regional Counsel

Under Florida law, DNA testing showing a 99.9998 percent probability the deceased number holder's parents are the claimant's grandparents is sufficient to convince the trier of fact without hesitancy that the number holder is the actual father despite the presence of the name of the husband of the claimant's mother as father on the birth certificate.

Although the Florida law does not confer legitimacy on the relationship, it does require that illegitimate and legitimate children be treated equally. The child would be eligible for benefits six months prior to the date of the application or as of the month of birth, whichever came later.

This is in response to your request for an opinion concerning whether a DNA test report is sufficient evidence to establish a parent-child relationship for purposes of determining the child's eligibility for Child's Insurance Benefits (CIB). For the reasons set forth below, we believe there is sufficient evidence to establish a parent-child relationship. Further, we believe that the child's entitlement to CIB began six months prior to the date he applied for benefits.

Factual Background

Crystal, the child claimant's mother, stated that she lived with the wage earner, Aaron, and his parents in Florida for about two weeks in 2002. She married Jason, in July of 2001 or 2002, and the couple lived together for about four months. They are separated but have not divorced. The child, Jason, was born in Connecticut on November. Jason, is stated to be the child's father on his birth certificate. The wage earner, Aaron, died in Florida on November XX, 2004. Crystal has submitted DNA test results completed February XX, 2006, showing a 99.9998 percent probability that the wage earner's parents are the child's grandparents. She filed for CIB on the child's behalf on March XX, 2007.

Analysis

The Social Security Act ("the Act") provides for the payment of CIB to a child of a wage earner who dies when fully or currently insured if the child has filed an application for CIB and was unmarried and under age 18 (or age 19 if a full-time student) at the time the application was filed and was dependent upon the wage earner at the time of death. Act § 202(d)(1); 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2006); Programs Operations Manual System (POMS) RS 00203.001.A.1.

For purposes of CIB eligibility under the Act, a child is defined as the child, adopted child or stepchild of an insured individual.See Act § 216(e), 42 U.S.C. § 416(e). If a putative father (here, the wage earner) is deceased and had never married the child's mother, the child's status as the surviving child of the putative father is governed by either section 216(h)(3)(C) or section 216(h)(2)(A) of the Act. To establish child status under section 216(h)(3)(C) of the Act, the child must show one of the following: (1) that the putative father acknowledged in writing that the child is his son, (2) that a court decreed the putative father to be the father of the child, (3) that the putative father had been ordered to contribute to the support of the child or (4) that the putative father is the father and was living with or contributing to the support of the child at the time the putative father died. We are aware of no evidence which satisfies any of the required conditions in section 216(h)(3)(C) of the Act.

To establish his status as the surviving child of the deceased wage earner under section 216(h)(2)(A) of the Act, the child must show that he would be entitled to a child's share of the wage earner's intestate personal property under the law of the state in which the wage earner was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001.C.2.a. According to the evidence provided, the wage earner was a resident of Florida at the time of his death. There is no evidence suggesting that the wage earner's domicile was other than Florida. We conclude that the wage earner was domiciled in Florida at the time of his death and that Florida's law of intestate succession applies in determining the child's status as the lineal descendant of the wage earner for purposes of establishing a parent-child relationship under section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001.C.2.a.

For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his or her father and is one of the natural kindred of all members of the father's family if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void;

(b) The paternity of the father is established by an adjudication before or after the death of the father;

(c) The paternity of the father is acknowledged in writing by the father;

FLA. STAT. ANN. § 732.108(2) (2006). While Section 732.108 refers to children born "out of wedlock," the statute has been applied where a child born in wedlock attempted to establish paternity by someone not a part of the marriage, for inheritance purposes. Estate of R~, 520 So. 2d 99, 100 (Fla. Dist. Ct. App. 1988).

In this instance, the child does not qualify under subparagraphs (a) or (c) because the evidence does not support a finding that the wage earner married or attempted to marry the child's mother or that the wage earner acknowledged the child in writing. To qualify under subparagraph (b), paternity must be established by an adjudication before or after the death of the putative father. Although there has been no actual paternity adjudication under FLA. STAT. ANN. § 732.108(2)(b), pursuant to 20 C.F.R. § 404.355(b)(2), SSA adjudicators will not require such a determination but will decide paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. See Drake v. Apfel, No. CIV. 300CV 154OH, 2001 WL 705784 at *2 (N.D. Tex. June 18, 2001) (noting that 20 C.F.R. § 404.355(b)(2) removes the obligation to obtain an actual state court determination of paternity).

To be adjudicated a lineal descendant under Florida intestacy law, a child born out of wedlock must prove paternity by "clear, strong and unequivocal" evidence. Estate of R~, 520 So. 2d at 100. Florida courts have equated this standard with the clear and convincing evidentiary standard. See Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. Dist. Ct. App. 1991). The clear and convincing evidentiary standard is something more than a simple preponderance of the evidence standard and less than the beyond-a-reasonable-doubt standard applied in criminal cases. See In re Interest of D.J.S., 563 So. 2d 655, 661 (Fla. Dist. Ct. App. 1990). "Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S. v. Dep't. of Children and Families, 831 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re Davey, 645 So. 2d 398, 404 (Fla. 1994)).

Here, the evidence of paternity consists primarily of a DNA test completed by DNA Diagnostics Center. Florida's paternity statutes distinguish between establishing paternity for child support purposes and for purposes of intestate succession. Under Florida's domestic relations law, Florida specifically permits scientific testing to determine paternity for purposes of support. See FLA. STAT. ANN. § 742.12 (2006). These tests must be conducted by a qualified laboratory. See FLA. STAT. ANN. § 742.12(1). The Agency has previously determined that DNA Diagnostics Center meets Florida's qualification requirements. See POMS PR 01115.011 Florida, Subpart C, PR 06-079.

Unlike Florida's domestic relations paternity statute, Florida's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See FLA. STAT. ANN. § 732.108(2). Further, we have found no Florida case law or statute specifically addressing the probative value of genetic testing of the putative father's relatives for purposes of establishing paternity for either support or intestacy purposes. As set forth in POMS PR 01115.011 Florida, Subpart C, PR 06-079, since Florida courts look to the law of other states for guidance in matters of first impression, we have looked to the court decisions of other states which have addressed the genetic testing of a putative father's relatives in intestacy proceedings. See Williams v. Estate of Pender, 738 So. 2d 453, 456 (Fla. Dist. Ct. App. 1999) (adopting the clear and convincing evidence standard of proof in an action for "equitable" or "virtual" adoption by looking at law review articles that indicated a majority of states used that standard); White v. White, 710 So. 2d 208, 209 (Fla. Dist. Ct. App. 1998) (in the absence of a dispositive Florida case, court found foreign court decisions persuasive). As further set forth in POMS PR 01115.011 Florida, Subpart C, PR 06-079, a review of court decisions in other states shows that evidence of the genetic tests of the putative father's relatives is, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. See also J.E. Cullins, Jr., Should the Legitimate Child Be Forced to Pay for the Sins of her Father? Sudwischer v. Estate of Hoffpauir, 53 La.L.Rev. 1675, 1714 (May 1993) (DNA fingerprinting may be utilized to effectively establish a "probability" of paternity by testing relatives of the unavailable parent); C.N. Le Ray, Implications of DNA Technology on Posthumous Paternity Determination: Deciding the Facts When Daddy Ca't Give His Opinion, 35 B.C. L.Rev. 747, 764-65 (1994) ("[I]f samples of the putative father's DNA are unavailable, it may be possible to reconstruct his DNA fingerprint by using samples from close relatives ... Thus, DNA testing provides, for the first time, the potential for accurate posthumous paternity identification."). Because the courts of Florida look to the decisions of other states on matters of first impression and because the legislative intent of the present FLA. STAT. ANN. § 732.108 was to be more liberal in allowing children to inherit from their natural fathers, it is our opinion that Florida courts would, at a minimum, consider genetic testing of the putative father's relatives along with other evidence on the issue of paternity. See In re R~, 520 So. 2d at 101-02 (comparing the predecessor statute to Section 732.108 and noting that the later statute is much broader than the one it replaced, being more liberal in allowing for inheritance by an illegitimate child and noting that one of the underlying purposes of the statute is to permit children to inherit from their natural fathers).

To satisfy Florida's clear and convincing evidence standard, the evidence must be sufficient to convince the trier of fact without hesitancy. R.S., 831 So. 2d at 1277. According to the evidence provided, the DNA test report based on samples from the putative father's parents and the child shows that the probability of the child being a grandchild of the putative grandparents is 99.9998 percent. Under Florida law, DNA testing based on a child and putative father showing a statistical probability of paternity of 95 percent or more creates a rebuttable presumption that the alleged father is the biological father of the child. FLA. STAT. ANN. § 742.12(4) (2006). While Florida law has not stated the necessary percentage when testing is based on a putative grandparent, a jurisdiction that has considered such evidence found clear and convincing evidence of paternity when considering the DNA test results and other evidence where the percentage of probability was less than that present here. See D~,2001 WL 705784 at *4 (DNA results showing a 98 percent probability of grandparentage, in addition to other evidence, established paternity by clear and convincing evidence). Further, "[w]here the genetic test uses DNA from both parents of the putative father, it is possible to determine paternity with practically the same certainty as if the putative father's DNA was available." POMS PR 01115.053 Washington, Subpart B, PR 05-015 (citing C. N. L~, supra, at 765). Neither the facts of this case nor any of the evidence presented leads us to believe further development is necessary to exclude the possibility that a male relative of the putative father may have fathered the child, and we do not recommend engaging in further development to exclude that possibility. See POMS GN 00306.065 C ("do not routinely develop to determine if a male relative of the [putative father] may have fathered the child claimant").

The fact that the child was born while her mother was married to someone other than the wage earner is a factor which weighs against a finding that the wage earner is the child's father. Florida courts have long held that children born during a marriage are presumed to be the product of the marriage, though this presumption is rebuttable. Bostwick v. Bostwick, 346 So. 2d 150, 151 (Fla. 1977); Blitch v. Blitch, 341 So. 2d 251, 252 (Fla. 1976); Smith v. Wise, 234 So. 2d 145, 146-47 (Fla. 1970). As noted in Baker v. Sullivan, 880 F.2d 319, 312 (11th Cir. 1989), "Florida courts have permitted actions by children born in wedlock to establish paternity by someone not a part of the marriage, for inheritance purposes" (citing Estate of R~, 520 So. 2d at 100; Williams v. Estate of Long, 338 So. 2d 563 (Fla. Dist. Ct. App. 1976); In re Estate of J~, 339 So. 2d 237 (Fla. Dist. Ct. App. 1976), cert. denied, 346 So. 2d 1249 (Fla.1977)). Clear and satisfactory evidence would be required to rebut the presumption. Gammon v. Cobb, 335 So. 2d 261, 264 (Fla. 1976); Eldridge v. Eldridge, 16 So. 2d 163, 164 (Fla. 1944). To be considered "clear and satisfactory," such evidence must do more than cast a strong suspicion or grave doubt on the paternity of the child and must clearly remove the presumption, although the proof need not be beyond a reasonable doubt. E~, 16 So.2d at 164. A Florida court has held that the presumption was rebutted where the mother stated that she had not lived with nor had sexual relations with her husband for seven years and had sexual relations at the time of the child's conception with only the defendant, testimony which was uncontradicted except by inadmissible hearsay. Hill v. Parks, 373 So. 2d 376 (Fla. Dist. Ct. App. 1979). A court also held that the presumption was overcome when all parties agreed that the husband was not the father of the child. Albert v. Albert, 415 So. 2d 818, 820 (Fla. 1982). Finally, of particular relevance here, DNA testing evidence has been accepted as conclusively establishing paternity so as to overcome the presumption. Fernandez v. Fernandez, 857 So. 2d 997, 999 (Fla. Dist. Ct. App. 2003). Thus, we believe the DNA evidence presented here would constitute clear and satisfactory evidence to rebut the marital presumption under Florida law. See Id.

The appearance of the mother's husband's name on the child's birth certificate also presents evidence inconsistent with a finding of paternity with respect to the putative father in this case. However, such evidence does not irrebuttably establish paternity. See Fernandez v. McKenney, 776 So. 2d 1118, 1121 n.4 (Fla. Dist. Ct. App. 2001) ("a father's signature on the back of a birth certificate has been held not to establish paternity") (citing Dept. of Revenue v. M.L.S., 756 So. 2d 125 (Fla. Dist. Ct. App. 2000)); Fernandez v. Fernandez, 857 So. 2d at 999 (despite husband's name on birth certificate, DNA evidence overcame presumption of legitimacy); see also Department of Revenue v. Ducant, __ So. 2d __, 2007 WL 983090 at *2 (Fla. Dist. Ct. App. Apr. 4, 2007) (DNA test disestablished paternity which had previously been established by affidavit of paternity). This is especially true here since the birth certificate does not contain an actual signature of the husband, but only his printed name. Thus, the birth certificate does not appear to qualify as a written acknowledgment of paternity by the mother's husband. CF Wakefield v. Apfel, 85 F. Supp. 2d 1275, 1281 (M.D. Fla. 1999) (under Florida law, wage earner established paternity where he actually signed the applicant's birth certificate and identified the applicant as his son in other writings; subsequent blood tests showing wage earner was not the father could not overcome the establishment of paternity); Holmen v. Holmen, 697 So. 2d 866, 868 (Fla. Dist. Ct. App. 1997) (decedent established paternity where he executed an affidavit acknowledging paternity, filed the affidavit in court and obtained an amended birth certificate; court declined to allow scientific evidence to rebut the establishment of paternity for intestate succession purposes). Further, in addition to the DNA test result discussed above, the evidence shows that the child's mother and her husband have been separated since prior to the child's birth, and there is no evidence that the husband provided any support for the child or maintained any sort of relationship with him. Nor is there any evidence that the husband challenges the putative father's paternity. Under these circumstances, based on all the evidence provided, it is our opinion that you would be justified in concluding that the child's status as the natural child of the putative father has been established by clear and convincing evidence under Florida law.

Even where the mother's husband is proven not to be the biological father, the presumption of legitimacy may only be overcome where there is a clear and compelling reason to do so based on the child's best interests. Department of Health Rehabilitative Services v. Privette, 617 So. 2d 305, 309 (Fla. 1993). One Florida court has applied P~ in an intestate succession case. Contino v. Estate of Contino, 714 So. 2d 1210, 1214 (Fla. Dist. Ct. App. 1998). Therefore, assuming an analysis under P~ is necessary here, we believe that in conducting such an analysis, a Florida court would find that it would be in the child's best interest to overcome the presumption of legitimacy in this instance. There is no evidence that the mother's husband seeks to maintain parental rights or that the husband has any relationship with the child whatsoever. To the contrary, the evidence presented indicates that the mother and her husband were separated for almost the entire duration of their marriage. See P~, 617 So. 2d at 309 (overcoming the presumption of legitimacy might be in the child's best interest where the child has been abandoned by the mother's husband and is in need of support); Fernandez v. Fernandez, 857 So. 2d at 999 (finding it in the child's best interests to overcome the presumption of legitimacy where, although the children were born of the marriage, "this was hardly an intact family in a practical sense."); cf .Callahan v. Department of Revenue, 800 So. 2d 679, 683 (Fla. Dist. Ct. App. 2001) (declining to order a paternity test in an effort to overcome the presumption where the married family was intact). Further, pertaining to the support of the child, it would be in the child's best interest to be entitled to inherit from the wage earner's intestate estate. See Estate of R~, 520 So. 2d at 102 (permitting child to overcome the presumption in order to inherit from child's natural father); C~, 714 So. 2d at 1214 (where the child was a child of decedent based on the presumption of legitimacy, the child's best interests would not be served by court-ordered DNA tests aimed at overcoming the presumption).

If the wage earner is determined to be the father of the child, you asked the date by which eligibility for CIB could be met. Under 20 C.F.R. § 404.621(a)(2) (2006), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See Act § 202(d)(1); 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a) (2006). Child status is one of the entitlement factors. See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1). If the child is the legitimate child of an insured individual and entitled to benefits, the period of entitlement will include the full retroactive period of the application (six months prior to the application or the child's birth, whichever occurs later). See POMS GN 00306.050 and GN 00306.085. Although legitimacy establishes the child's status as of birth, an out-of-wedlock child generally is not be entitled to retroactive benefits because the out-of-wedlock child must prove child status under state law, and benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055A.3. However, if the state law granting inheritance rights to an out-of-wedlock child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. See POMS GN 00306.050.

The Florida statute establishing inheritance rights for children born out-of-wedlock does not confer legitimacy. See FLA. STAT. ANN. § 732.108. However, inheritance rights are retroactive in Florida. See In Re Estate of O~, 397 So. 2d 420 (Fla. App. 1981) (court can determine an heir of a deceased at any time after death and such heir is accorded the same status as any other heir under Florida law). If you conclude that the child is the out-of-wedlock child of the wage earner, the law of Florida would accord him inheritance rights equivalent to those of a legitimate child. Therefore, his rights to retroactive benefits would be the same as those of a legitimate child (six months before the application or the child's birth, whichever occurs later).

Conclusion

We believe that the Florida courts would find that the child could inherit from the deceased wage earner as his child under Florida's intestacy statute. Therefore, we believe that the child qualifies as the wage earner's child for purposes of entitlement to CIB. Entitlement would begin six months prior to March XX, 2007, the date the child applied for benefits.

The laboratory used for DNA testing in this case is not listed on Florida Department of Revenue's website as a contracted laboratory. However, Florida law indicates that a genetic-testing laboratory used by another state may qualify if the laboratory has comparable qualifications. Consequently, this laboratory meets the test for a "qualified technical laboratory" under Florida law though it is not listed on the Florida Department of Revenue's website.

In considering this child's claim for survivor's benefits, you asked whether a DNA testing laboratory that is not listed on the Florida Department of Revenue's website as a contract laboratory can be considered a "qualified technical laboratory" under Florida law and whether the probability of grandparentage shown by DNA testing meets the requirements of clear and convincing evidence of paternity under Florida intestacy law.

Having considered the evidence presented, and the applicable federal and state law, it is our opinion that (1) Genectica DNA Laboratories, Inc. satisfies Florida accreditation requirements for testing laboratories; and (2) for inheritance purposes under Florida law, we can find support for a Social Security adjudicator to conclude that clear and convincing evidence has not been shown based on the conflicting statements about Claimant's paternity that are in the record or to conclude that clear and convincing evidence of paternity has been shown in light of the DNA test samples from NH's parents, the claimant's mother and the claimant, along with other evidence in the file. Because the DNA evidence excludes the other potential fathers and points convincingly to NH, we would lean toward a conclusion that Claimant has produced sufficient evidence of paternity. However, this is a close call.

FACTS

NH, Jeffrey , died on February XX, 1999, while domiciled in Florida. Javonté (Claimant) was born on January. NH and Claimant's mother never married. However, at one time, NH lived with, and was married to, Claimant's maternal grandmother. NH was married to someone else when Claimant was born. Claimant's mother originally filed a claim for child support payments and, during that process, Claimant's mother indicated to child support authorities that NH was Claimant's step-father but later restated that NH was Claimant's biological father. She also named two other males as possible fathers. DNA test results on the other named individuals indicated that they were not Claimant's father. Those DNA test results were not included in the file. Claimant's mother stated that when NH was alive, she could not afford to purchase a DNA test to be done on NH. Claimant's child support case was closed due to NH's death and due to conflicting statements about Claimant's paternity. NH was not providing support to Claimant's mother at the time of his death.

On May XX, 2006, Claimant's mother applied for survivor's benefits on Claimant's behalf on NH's earnings record. To determine if Claimant was related to NH after NH's death, DNA samples were taken from Claimant, Claimant's mother and NH's parents. The results of the DNA test conducted by Genectica DNA Laboratories, Inc. and reported on April XX, 2006, indicate a 99.99% probability that Claimant is related to NH's parents. Claimant's birth certificate does not identify the father. NH's mother said NH told her that he was the father. According to NH's mother, Claimant's maternal aunts said there was "something going on" between Claimant's mother and NH. NH's mother indicated she believed that the father's name was left off the birth certificate because Claimant's mother was ashamed that NH was once her step-father and because he was married to someone else at the time Claimant was born. Claimant's mother indicated that NH did not sign the birth certificate because at the time of birth, they were not sure he was Claimant's father. In connection with the DNA testing, Claimant's mother and NH's parents provided photo identification of themselves and Claimant. We note that in the photographs, Claimant appears to resemble NH's father.

ANALYSIS

Accreditation

You indicated that the laboratory used here, Genectica DNA Laboratories, Inc., is not listed on Florida Department of Revenue's website as a contracted laboratory. However, POMS PR 01115.011C states the basic requirements of a qualified technical laboratory and indicates that a qualified technical laboratory can include a genetic-testing laboratory used by another state, if the laboratory has comparable qualifications. See POMS PR 01115.011C. While POMS PR 01115.011C addresses the question of whether a laboratory whose name was unrecognizable met the accreditation requirements of a qualified technical laboratory under Florida law, we do not believe that this distinction is significant. The United States Department of Health and Human Services lists Genetica DNA Laboratories, Inc. on its official website as a genetic-testing laboratory in Ohio that is also accredited by the American Association of Blood Banks, see, http://www.acf.dhhs.gov/programs/cse/pubs/directories/genetic-testing/sec3.html. Consequently, we are of the opinion that this laboratory meets the test for a "qualified technical laboratory" under Florida law though it is not listed on the Florida Department of Revenue's website. See POMS GN 00306.065.

Paternity

While in POMS PR 01115.011C the laboratory performed DNA test results using the wage earner's siblings, POMS PR 01115.011C more broadly addresses the general issue of the evidentiary value of DNA testing on the putative father's relatives. See POMS PR 01115.011C. We do not believe that the fact that DNA test results here were conducted on NH's parents would require a different analysis than that found in POMS PR 01115.011C. Therefore, we conclude that in this case, Florida courts would, at a minimum, consider the DNA test results along with other evidence to determine whether this evidence is clear and convincing. See POMS PR 01115.011C. As stated in POMS PR 01115.011C, clear and convincing is something "more than a simple preponderance" and less than the beyond-a-reasonable-doubt standard applied in criminal cases. See In re Interest of D.J.S., 563 So.2d 655, 661 (Fla. App. 1990). "Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S. v. Department of Children and Families, 831 So.2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re D~, 645 So.2d 398, 404 (Fla.1994)).

Here, Claimant's mother indicated to child support authorities that two other men were potentially Claimant's biological father; however, DNA test results ruled those individuals out as Claimant's father. Claimant's mother also indicated that NH was Claimant's step-father and later recanted, stating that NH was in fact Claimant's biological father. There is also evidence that NH refused to sign Claimant's birth certificate when Claimant was born since NH was not sure that he was Claimant's biological father. This evidence tends to demonstrate that paternity was initially unknown or initially concealed based on NH's prior marriage to Claimant's grandmother and his then-current marital status when Claimant was born. Considering the above definition of clear and convincing evidence, an SSA adjudicator would be justified in concluding that clear and convincing evidence has not been shown, because these conflicting statements causes some hesitancy about Claimant's paternity and because these statements demonstrate the memories of the witnesses are unclear and not without confusion. On the other hand, an SSA adjudicator would also be justified in determining that Claimant has shown clear and convincing evidence of paternity, notwithstanding the conflicting statements, in light of the DNA test results showing 99% probability that NH's parents are Claimant's grandparents, the statements from child support authorities and Claimant's mother that the other possible putative fathers were excluded as fathers, NH's later oral acknowledgement of paternity to his mother, and the fact that in photographs Claimant appears to resemble NH's father. Because the DNA evidence excludes the other potential fathers and points convincingly to NH, we would lean toward a conclusion that Claimant has produced sufficient evidence of paternity. However, this is a close call.

Mary A. Sloan

Regional Chief Counsel

By: Arthurice T. Brundidge

Assistant Regional Counsel

Under Florida law, there is no rebuttable presumption of paternity for intestate succession when the parent-child relationship has been established under the clear and convincing standard of the statute.

QUESTION

You asked whether statements from Victory (NH) and the mother of Jonathan (Clamant), along with the fact that NH knew when he signed the acknowledgment of paternity that he was not Claimant's father, are sufficient to rebut the presumption of paternity.

ANSWER

Based on the information that has been provided and for the reasons stated below, we conclude that, under the Florida intestacy laws, NH's marriage to Claimant's mother subsequent to Claimant's birth and written acknowledgment of paternity established paternity and the presumption is not rebuttable.

BACKGROUND

Claimant was born on July to Julie. Claimant's mother married NH on October XX, 1991. NH signed an acknowledgment of paternity for an amended birth certificate for Claimant on March XX, 1992. A divorce decree dated March XX, 1996, states that at the time NH signed the amended birth certificate, he knew he was not Claimant's biological father. While DNA testing had been requested, no DNA testing has been performed. Also, no evidence was provided regarding who the alleged biological father might be if NH was not the biological father. The Florida Court granting the divorce stated that it would not assist NH in extricating himself from the circumstances he created by executing the fraudulent Application for an Amended Birth Certificate. Therefore, the Court stated that NH was estopped from denying his status as Claimant's father and was ordered to pay child support.

DISCUSSION

To qualify for child's insurance benefits (CIB) on the record of an individual entitled to old-age or disability benefits, a claimant must be that individual's child. See § 202(d) of the Social Security Act (Act), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1)(2005). An individual's natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child can qualify as that individual's child. See § 216(e) of the Act, 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2005). A claimant is considered the insured person's natural child if the insured person has either acknowledged in writing that the claimant is his child, been decreed by a court to be the claimant's father, or has been ordered by a court to contribute to the claimant's child support because the claimant is the insured person's child. See § 216(h) of the Act, 42 U.S.C. § 416(h); 20 C.F.R § 404.355(a)(3) (2005); see also POMS GN 00306.055 (Legitimation)(2005). Here, NH married Claimant's mother subsequent to Claimant's birth. NH also provided a written acknowledgment of paternity for an amended birth certificate for Claimant. Furthermore, NH was ordered by a Florida court to contribute to the Claimant's child support because he was Claimant's "natural" father. Therefore, the evidence appears sufficient to show that Claimant would be considered NH's natural child and would be eligible to receive benefits.

In addition, a claimant qualifies as the insured person's natural child if, among other methods, the claimant could inherit the insured person's personal property as his or her child under the intestacy laws of the state where the insured person was domiciled when the child applied for benefits. See § 216(h) of the Act; 20 C.F.R. § 404.355(b); see also POMS GN 00306.001 (Determining Status as Child)(2005). Because the NH is a resident of Florida, the question is whether under Florida intestacy law the statements from the NH and the Claimant's mother along with the fact that the NH knew when he signed the acknowledgment of paternity that he was not Claimant's father, is sufficient evidence to rebut the presumption of paternity.

For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his father and is one of the natural kindred of all members of the father's family, 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 (C) the paternity is acknowledged in writing by the father. See Fla. Stat. Ann. § 732.108(2)(2006); see also POMS GN 00306.455 (Florida Intestacy Laws)(2005). It appears Claimant qualifies under subparagraphs (A) and (C). As previously noted, R~ and NH were married subsequent to Claimant's birth. Also, NH signed an acknowledgment of paternity for an amended birth certificate for Claimant.

To be adjudicated a lineal descendent under Florida intestacy law, a child born out of wedlock must prove paternity by clear and convincing evidence. See Thurston v. Thurston, 777 So.2d 1001 (Fla. App. 2000); see also Breedlove v. Estate of Breedlove, 586 So. 2d 466 (Fla. App. 1991). Clear and convincing is something "more than a simple preponderance" and less than the beyond-a-reasonable-doubt standard applied in criminal cases. See In re Interest of D.J.S., 563 So.2d 655, 661 (Fla. App. 1990). "Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S. v. Department of Children and Families, 831 So.2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re D~, 645 So.2d 398, 404 (Fla.1994)). The evidence offered to support Claimant's allegation that he is the natural child of the NH consists of a signed acknowledgment of paternity by NH for the amended birth certificate of Claimant.

As in this case, in Holmen v. Holmen by Rahn, the decedent executed an affidavit acknowledging his paternity of the child, filed the affidavit with the State of Florida, and obtained an amended birth certificate showing decedent as the child's father. 697 So. 2d 866, 867 (Fla. App. 1997). The Court found that "decendent's written acknowledgment established paternity for purposes of intestate succession." Id. at 868. The Court refused to allow the presentation of scientific and other evidence in a probate proceeding to establish that the decendent was not the biological father. Id. Thus, Florida courts would not allow the subsequent blood tests to contest paternity in intestacy proceedings.

Likewise, in Sanders ex. rel. Wakefield v. Apfel, the United States District Court for the Middle District of Florida considered a denial for social security child's insurance benefits on this same issue. 85 F.Supp. 2d 1275 (1999). The insured individual had signed the child's birth certificate as a parent, and identified child as his son on life and health insurance applications. See id. at 1277. The Court found that since the Social Security Act requires this Court to apply Florida intestacy law, there was no reason to allow the Commissioner to impeach the insured's acknowledged paternity with after-acquired blood test results. See id. at 1281. Therefore, the Court concluded that under Florida law the child would be considered a child of the insured for intestacy purposes. Id.

It appears NH's acknowledgment of paternity would be considered clear and convincing evidence. As the Florida courts would not accept the results of DNA testing that showed the claimant was not the claimant's father, we can assume that the Florida courts would not accept mere statements denying paternity.

Florida case law also reveals that there is no rebuttable presumption of paternity for purposes of intestate succession when paternity is established pursuant to Fla. Stat. Ann. § 732.108(2). See H~, 697 So. 2d 866. Accordingly, the evidence establishing NH's paternity of Claimant, in this case, would not be rebutted by NH's present statement denying paternity and his allegation that he was aware that he was not Claimant's father when he signed the acknowledgment.

CONCLUSION

For the reasons provided, we believe Claimant is the child of NH for purposes of entitlement to child insurance benefits.

Mary A. Sloan

Regional Chief Counsel

By: Simone D. Pereira

Assistant Regional Counsel

In Florida, DNA testing performed by an accredited laboratory on samples from the claimant and a child of the deceased number holder from another relationship and showing a 99.8% probability that the two children share half siblingship meets the clear and convincing standard to establish a parent-child relationship between the claimant and the deceased number holder. Although this does not legitimate the child, Florida law does provide illegitimate children the same retroactive inheritance rights as those born within a marital relationship. Entitlement to benefits can be retroactive.

In considering this child's claim for survivor's benefits, you asked several questions related to the evidentiary value of genetic testing performed by DNA Diagnostics Center on samples from relatives of a deceased number holder (NH) in Florida and the retroactive or prospective payment of child's benefits. Specifically, you asked (1) whether the laboratory meets the accreditation requirements for testing laboratories under Florida law per Program Operations Manual System (POMS) GN 00306.065; (2) whether DNA tests of the alleged father's other child can be used to establish relationship to the NH under Florida intestacy law and, if so, would the child's status be that of a legitimated child or illegitimate child with inheritance rights; and (3) if relationship is met as an illegitimate child with inheritance rights, can the child be paid retroactively or prospectively from the date of the DNA.

Having considered the evidence presented, and the applicable federal and state law, it is our opinion that (1) the DNA Diagnostics Center satisfies Florida accreditation requirements for testing laboratories; (2) the DNA tests based on samples from one of NH's other children and the child claimant, can satisfy the clear and convincing evidentiary standard for proving paternity for inheritance purposes under Florida law; and (3) the child claimant, to the extent she qualifies as the natural out-of-wedlock child of the NH, would be entitled to the same inheritance rights as a legitimate child under Florida law and qualify for benefits for the full retroactive reach of her application (that is, six months before her application in November 2005).

FACTS

NH died domiciled in Florida on December XX, 1989. The child claimant was born on June. There is no evidence that the NH and the child claimant's mother, Melanie, were ever married. There is no evidence that the NH was living with or providing support to the child claimant's mother at the time of the NH's death. On November XX, 2005, the child claimant's maternal grandmother applied for benefits on the child claimant's behalf on the earnings record of the deceased NH. The birth certificate of the child claimant indicates she was born in Texas; however, the birth certificate provides no indication as to the identity of her father. In an effort to determine if the child claimant was related to the NH, DNA samples were taken from the child claimant and one of NH's children. The results of the DNA test conducted by the DNA Diagnostics Center were reported on October XX, 2005. According to the DNA test report, the probability that the child claimant is related to the NH's other child is 99.8%. The likelihood that the child claimant and the NH's other child share the same biological mother or father is 737 to 1. The children do not share the same mother.

Statutory Authority

For purposes of child's survivor's benefits under the Social Security Act (Act), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e). If a putative father (here, the NH) dies before the child claimant's birth and the NH never married the child's mother, the child claimant's status as the surviving child of the NH is governed by either section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status under section 216(h)(3)(C) of the Act, the child claimant must show one of the following: (1) that the NH acknowledged in writing that the child claimant is his daughter, (2) that a court decreed NH to be the father of the child claimant, (3) that the NH had been ordered to contribute to the support of the child claimant or (4) that the NH is the father and was living with or contributing to the support of the child claimant at the time the NH died. We are aware of no evidence which satisfies any of the required conditions in section 216(h)(3)(C) of the Act.

To establish her status as the surviving child of the deceased NH under section 216(h)(2)(A) of the Act, the child claimant must show that she would be entitled to a child's share of the NH's intestate personal property under the law of the state in which the NH was domiciled at the time of his death. According to the record, the NH was a resident of Florida at the time of his death. There is no evidence suggesting that the NH's domicile was other than Florida. We conclude the NH was domiciled in Florida at the time of his death and that Florida's law of intestate succession is applicable in determining the child claimant's status as the lineal descendant of the NH for purposes of section 216(h)(2)(A) of the Act. For a person born out of wedlock to establish child status, Florida law provides as follows:

For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his or her father and is one of the natural kindred of all members of the father's family if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father.

(c) The paternity of the father is acknowledged in writing by the father.

FLA. STAT. ANN. § 732.108(2). The child claimant does not qualify under subparagraphs (a) or (c) because the evidence does not support a finding that the NH married or attempted to marry the child claimant's mother or that the NH acknowledged the child claimant in writing. To qualify under subparagraph (b), paternity must be established by an adjudication before or after the death of the father. Although there has been no actual paternity adjudication under FLA. STAT. ANN. § 732.108(2)(b), SSA adjudicators apply Florida intestacy law under these circumstances as follows:

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2)(2005); See Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

ANALYSIS

To be adjudicated a lineal descendant under Florida intestacy law, a child born out of wedlock must prove paternity by clear and convincing evidence. See Breedlove v. Estate of Breedlove, 586 So. 2d 466 (Fla. App. 1991). Clear and convincing is something "more than a simple preponderance" and less than the beyond-a-reasonable-doubt standard applied in criminal cases. See In re Interest of D.J.S., 563 So.2d 655, 661 (Fla. App. 1990). "Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S. v. Department of Children and Families, 831 So.2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re D~, 645 So.2d 398, 404 (Fla.1994)).

In the present matter, the evidence offered to support the child claimant's allegation that she is the natural child of the deceased NH consists of a DNA test.

Florida's paternity statutes distinguish between establishing paternity for child support purposes and for purposes of intestate succession. Under Florida's domestic relations law, Florida specifically permits scientific testing to determine paternity for purposes of support.

See FLA. STAT. ANN. § 742.12. Under this statute, a court may require the child, mother and the alleged father to submit to scientific tests that are generally acceptable within the scientific community to show the probability of paternity. These tests must be conducted by a qualified laboratory. See FLA. STAT. ANN. § 742.12(1). As stated in a prior memorandum, DNA Diagnostics Center meets Florida's requirements. See Memorandum from Regional Chief Counsel, Atlanta, to Ass't Reg. Comm.-MOS, Atlanta, Genetic Testing, Florida, at 4 (October 11, 2005), copy attached.

Unlike Florida's domestic relations paternity statute, Florida's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See FLA. STAT. ANN. § 732.108(2). We have found no Florida case law or statute specifically addressing the probative value of genetic testing of the putative father's relatives for purposes of establishing paternity for either support or intestacy purposes. Because Florida courts look to the law of other states for guidance in matters of first impression, we have looked to the court decisions of other states which have addressed the genetic testing of a putative father's relatives in intestacy proceedings. See Williams v. Estate of Pender, 738 So.2d 453, 456 (Fla. Dist. Ct. App. 1999) (adopts the clear and convincing evidence standard of proof in an action for "equitable" or "virtual" adoption by looking at law review articles that indicated a majority of states used that standard); White v. White, 710 So.2d 208, 209 (Fla. Dist. Ct. App. 1998) (in the absence of a dispositive Florida case, court found foreign court decisions persuasive).

Our review of the court decisions in other states shows that the genetic tests of the putative father's relatives (including a known child) is, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. See e.g., In the Matter of the Application of Ruth Santos, 768 N.Y.S.2d 272 (N.Y. 2003) (court stated DNA testing of a child's putative grandparents, could be used to satisfy the clear and convincing evidence standard for proving paternity); In the Matter of the Estate of Robert ~, 748 N.Y.S.2d 654 (N.Y. 2002) (DNA testing on the putative father's twin, coupled with other evidence constituted clear and convincing evidence of paternity); Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (district court concludes DNA testing of the putative father's mother coupled with other evidence supported finding of clear and convincing evidence of paternity); In the Matter of the Estate of S~, 612 N.Y.S.2d 756 (N.Y. 1994) (court found DNA testing of a child's putative grandparents could provide clear and convincing evidence of paternity); M.A. v. The Estate of A.C., 643 A.2d 1047 (N.J. Super. 1993) (court ordered the decedent's siblings and mother to submit to DNA testing for paternity purposes in an intestacy proceeding because denying the tests could deprive the child of evidence necessary to establish his right to equal treatment under the law); Tipps v. Metropolitan Life Insurance Company, 768 F. Supp. 577, 580 (S.D. Tex. 1991) (DNA testing of deceased putative father's parents, legitimate son, and putative daughter); In re Estate of R~, 583 A.2d 782, 784 (N.J.Super 1990) (court has "inherent power" to order collateral relatives of decedent to submit to blood tests to determine paternity of non-marital child)(cited in In re Estate of M~, 868 A.2d 680, 685 n.4 (Vt. 2004)).

Because the courts of Florida look to the decisions of other states on matters of first impression and because the legislative intent of the present FLA. STAT. ANN. § 732.108 was to be more liberal in allowing children born out-of wedlock to inherit from their natural fathers, it is our opinion that Florida courts would, at a minimum, consider genetic testing of the putative father's relatives along with other evidence on the issue of paternity. See In re R~, 520 So. 2d 99, 101-102 (Fla. Dist. Ct. App. 1988) (compares the predecessor statute to Section 732.108 and notes that the "later statute is much broader than the one it replaced, being more liberal in allowing for inheritance by an illegitimate child" and noting that "one of the underlying purposes of the statute is to permit children to inherit from their natural fathers").

To satisfy Florida's clear and convincing evidence standard, the evidence must be "sufficient to convince the trier of fact without hesitancy." R.S., 831 So. 2d at 1277. According to the evidence provided to us, the DNA test report based on samples from one of NH's other children and the child claimant shows that the probability the child claimant and NH's other child are half-siblings is 99.8% and the likelihood that they share a biological mother or father is 737 to 1. Since the children do not share the same mother, this statistic indicates a 737 to 1 chance that they share the same father. Under these circumstances, it is not necessary to exclude the possibility that a male relative of the NH may have fathered the child claimant, and we do not recommend engaging in further development to exclude that possibility. See POMS GN 00306.065 C. We are aware of no evidence showing the NH is not the father of the child applicant. Under these circumstances, it is our opinion that you would be justified in concluding that the child claimant's status as the natural child of the NH has been established by clear and convincing evidence under Florida law.

If NH is determined to be the father of the child claimant, you asked whether the child claimant is entitled to retroactive benefits. Under 20 C.F.R. § 404.621(a)(2) (2005), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See § 202(d)(1) of the Act; 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a). Child status is one of the entitlement factors. See § 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). If the child applicant is the legitimate child of an insured individual and entitled to benefits, the period of entitlement will include the full retroactive period of the application (six months prior to the application or the child's birth, whichever occurs later). See POMS GN 00306.050 and GN 00306.085. Although legitimacy establishes the child's status as of birth, an out-of-wedlock child generally is not be entitled to retroactive benefits because the out-of-wedlock child must prove child status under state law and benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055A.3. However, if the state law granting inheritance rights to an out-of-wedlock child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. See POMS GN 00306.050.

The Florida statute establishing inheritance rights for children born out-of-wedlock does not confer legitimacy. See FLA. STAT. ANN. § 732.108. However, inheritance rights are retroactive in Florida. See In Re Estate of O~, 397 So. 2d 420 (Fla. App. 1981) (court can determine an heir of a deceased at any time after death and such heir is accorded the same status as any other heir under Florida law). If you conclude that the child claimant is the out-of-wedlock child of the NH, the law of Florida would accord her inheritance rights equivalent to those of a legitimate child. Therefore, her rights to retroactive benefits would be the same as those of a legitimate child beginning six months prior to November 29, 2005, the date of her application.

Mary A. Sloan

Regional Chief Counsel

By: Jennifer Patel

Assistant Regional Counsel

Under Florida law, DNA testing showing a 99.95 % probability that the claimant is the sibling of a child already determined to be the child of the deceased number holder meets the clear and convincing standard to establish the parent-child relationship between the number holder and the claimant.

In considering this child's claim for survivor's benefits, you asked whether a second child (C2) could qualify for survivor's benefits based upon DNA testing showing him to be the full sibling of a child (C1) already receiving benefits on the Number Holder's (NH's) record. Having considered the evidence presented, and the applicable federal and state law, it is our opinion that C2 would qualify for benefits based upon the DNA testing.

FACTS

NH died domiciled in Florida on September XX, 1990. C2 was born on September. C2's mother had another child C1, born on March, who was receiving child's benefits on NH's record. We do not know the nature of the evidence was used to qualify C1 for benefits. The children's mother filed an application on C2's behalf in September 1990 but the application was denied because there was no proof of paternity. The children's mother filed another application for C2 in March 2004, this time presenting DNA test results showing a 99.95 percent probability that C1 and C2 had the same parents. The paperwork indicates that the results were certified by the laboratory director and that the laboratory used for DNA testing was accredited by the American Association of Blood Banks. However, the name of the laboratory is not clear.

Statutory and Regulatory Authority

For purposes of child's survivor's benefits under the Social Security Act (Act), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e). Where, as here, a claimant's mother and putative father never married, the child claimant's status as the surviving child of a number holder is governed by either section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status under section 216(h)(3)(C) of the Act, the child claimant must show that he is a natural child of the number holder and one of the following: (1) that the number holder acknowledged in writing that the child claimant is his child; (2) that a court decreed the number holder to be the father of the child claimant; (3) that the court ordered the number holder to contribute to the support of the child claimant; or (4) that the number holder is the father and was living with or contributing to the support of the child claimant at the time the number holder died. We are aware of no evidence that satisfies any of the required conditions in section 216(h)(3)(C) of the Act.

To establish his status as the surviving child of the deceased NH under section 216(h)(2)(A) of the Act, the state law definition of "child," the child claimant must show that he would be entitled to a child's share of the NH's intestate personal property under the law of the state in which the NH was domiciled at the time of his death.

According to the record, the NH was born in Florida and was a resident of Florida at the time of his death. There is no evidence suggesting that the NH's domicile was other than Florida. We conclude the NH was domiciled in Florida at the time of his death and that Florida's law of intestate succession is applicable in determining the child claimant's status as the lineal descendant of the NH for purposes of section 216(h)(2)(A) of the Act. For a person born out of wedlock to establish the status of lineal descendant, Florida law provides as follows:

For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his or her father and is one of the natural kindred of all members of the father's family if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father. (c) The paternity of the father is acknowledged in writing by the father.

FLA. STAT. ANN. § 732.108(2). C2 does not qualify under subparagraphs (a) or (c) because the evidence does not support a finding that the NH married or attempted to marry C2's mother or that the NH acknowledged C2 in writing. To qualify under subparagraph (b), paternity must be established by an adjudication before or after the death of the father. Although there has been no actual paternity adjudication under FLA. STAT. ANN. § 732.108(2)(b), SSA adjudicators must apply Florida intestacy law under these circumstances as follows:

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2)(2005); see Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

ANALYSIS

To be adjudicated a lineal descendant under Florida intestacy law, a child born out of wedlock must prove paternity by clear and convincing evidence. See Breedlove v. Estate of Breedlove, 586 So. 2d 466 (Fla. App. 1991). Clear and convincing is something "more than a simple preponderance" and less than the beyond-a-reasonable-doubt standard applied in criminal cases. See In re Interest of D.J.S., 563 So.2d 655, 661 (Fla. App. 1990). "Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S. v. Department of Children and Families, 831 So.2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re D~, 645 So.2d 398, 404 (Fla.1994)).

Here, the evidence offered to support C2's allegation that he is the natural child of the deceased NH consists of a DNA test and allegations of C2's mother. Florida's paternity statutes distinguish between establishing paternity for child support purposes and for purposes of intestate succession. Florida specifically permits scientific testing to determine paternity for purposes of support in its domestic relations law. See FLA. STAT. ANN. § 742.12. Under this statute, a court may require the child, mother and the alleged father to submit to scientific tests that are generally acceptable within the scientific community to show the probability of paternity. These tests must be conducted by a qualified laboratory. See FLA. STAT. ANN.§ 742.12(1). A "qualified technical laboratory" is defined as a genetic-testing laboratory that may be under contract with the state's Department of Revenue, uses tests and methods of a type generally acknowledged as reliable by accreditation organizations recognized by the United States Department of Health and Human Services (HHS), and is approved by such an accreditation organization. The term includes a genetic-testing laboratory used by another state, if the laboratory has comparable qualifications. See FLA. STAT. ANN. § 409.256(h). While the name of the laboratory conducting the tests at issue here is unclear, it apparently is located in Michigan and seems to be accredited by the American Association of Blood Banks. The lab appears to satisfy the definition of a “qualified technical laboratory” under Florida law. However, if the field office requires more certainty concerning the laboratory, it could develop further information, including the full name of the laboratory and whether it is used in Michigan and actually accredited (and by whom).

Unlike Florida's domestic relations paternity statute, Florida's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See FLA. STAT. ANN. § 732.108(2). We have found no Florida case law or statute specifically addressing the probative value of genetic testing of the putative father's relatives for purposes of establishing paternity for either support or intestacy purposes. Because Florida courts look to the law of other states for guidance in matters of first impression, we have looked to the court decisions of other states which have addressed the genetic testing of a putative father's relatives in intestacy proceedings. See Williams v. Estate of Pender, 738 So.2d 453, 456 (Fla. Dist. Ct. App. 1999) (adopts the clear and convincing evidence standard of proof in an action for “equitable” or “virtual” adoption by looking at law review articles that indicated a majority of states used that standard); White v. White, 710 So.2d 208, 209 (Fla. Dist. Ct. App. 1998) (in the absence of a dispositive Florida case, court found foreign court decisions persuasive).

Our review of the court decisions in other states shows that the genetic tests of the putative father's relatives (including a known child) is, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. See e.g., In the Matter of the Application of Ruth Santos, 768 N.Y.S.2d 272 (N.Y. 2003) (court stated DNA testing of a child's putative grandparents, could be used to satisfy the clear and convincing evidence standard for proving paternity); In the Matter of the Estate of Robert N~, 748 N.Y.S.2d 654 (N.Y. 2002) (DNA testing on the putative father's twin, coupled with other evidence constituted clear and convincing evidence of paternity); D~, 2001 WL 705784 (district court concludes DNA testing of the putative father's mother, coupled with other evidence, supported a finding of clear and convincing evidence of paternity); In the Matter of the Estate of S~, 612 N.Y.S.2d 756 (N.Y. 1994) (court found DNA testing of a child's putative grandparents could provide clear and convincing evidence of paternity); M.A. v. The Estate of A.C., 643 A.2d 1047 (N.J. Super. 1993) (court ordered the decedent's siblings and mother to submit to DNA testing for paternity purposes in an intestacy proceeding because denying the tests could deprive the child of evidence necessary to establish his right to equal treatment under the law); Tipps v. Metropolitan Life Insurance Company, 768 F. Supp. 577, 580 (S.D. Tex. 1991) (DNA testing of deceased putative father's parents, legitimate son, and putative daughter). In re Estate of R~, 583 A.2d 782, 784 (N.J.Super 1990) (court has “inherent power” to order collateral relatives of decedent to submit to blood tests to determine paternity of non-marital child) (cited in In re Estate of M~, 868 A.2d 680, 685 n.4 (Vt. 2004)).

FLA. STAT. ANN. § 732.108 was intended to be more liberal in allowing children born out-of wedlock to inherit from their natural fathers. It is our opinion that Florida courts would, at a minimum, consider genetic testing of the putative father's relatives (including a person SSA has determined to be the NH's child) along with other evidence on the issue of paternity. See In re R~, 520 So. 2d 99, 101-102 (Fla. Dist. Ct. App. 1988) (compares the predecessor statute to Section 732.108 and notes that the “later statute is much broader than the one it replaced, being more liberal in allowing for inheritance by an illegitimate child” and noting that “one of the underlying purposes of the statute is to permit children to inherit from their natural fathers”).

To satisfy Florida's clear and convincing evidence standard, the evidence must be “sufficient to convince the trier of fact without hesitancy.” R.S., 831 So. 2d at 1277. The DNA testing at issue here is especially compelling, establishing that there is a 99.95 percent probability that C1 and C2 share the same parents and SSA is satisfied that NH is C1's father. We are aware of no evidence showing the NH is not the father of the child applicant. Under these circumstances, if the field office is satisfied that the laboratory is qualified, it is our opinion that you would be justified in concluding that C2's status as the natural child of the NH has been established by clear and convincing evidence under Florida law.

Mary A. Sloan

Regional Chief Counsel

By: Laurie G. Remter

Assistant Regional Counsel

Under Florida law, DNA results from a properly accredited testing laboratory which show a 99.99 percent probability of the deceased number holder being the claimant's father are sufficient to meet the clear and convincing standard. In this situation, there is no need to develop to exclude the possibility of another male relative of the number holder being the father.

In considering this child's claim for survivor's benefits, you asked two questions related to the evidentiary value of genetic testing performed by Wuesthoff Reference Laboratories (Wuesthoff) on samples from the deceased number holder (NH) in Florida. Specifically, you asked:

What are the accreditation requirements of DNA testing laboratories under Florida state intestacy law?

Are the scientific test results submitted acceptable under Florida state law?

While there are no specific accreditation requirements for a DNA testing laboratory, the state of Florida clinical laboratory accreditation requirements can be found in the Florida Administrative Code Title 59A-7. See Fla. Admin. Code Ann. 59A-7 (2005). These requirements are technical, extensive, and beyond the scope of the type of development SSA staff would be conducting independently. However, because the purpose of your inquiry involves the use of the genetic testing in this case to determine this child claim, we understand you to be asking whether Wuesthoff meets any accreditation requirements Florida would impose on DNA testing laboratories and whether the DNA test results submitted can be used to establish relationship to the NH under Florida intestacy law.

Having considered the evidence presented and the applicable federal and state law, it is our opinion that Wuesthoff satisfies Florida accreditation requirements for testing laboratories and Florida courts would consider the DNA tests in determining whether the clear and convincing evidentiary establishes paternity for inheritance purposes.

FACTS

NH died domiciled in Florida on March XX, 2004. The child claimant was born on November. On December XX, 2004, the child claimant's mother applied for child's benefits for her daughter on NH's earnings record. According to the NH's death certificate, the NH died a resident of Florida. The child claimant was born in Florida according to her birth certificate. In an effort to determine if the child claimant was the daughter of the NH, DNA samples were taken from the child claimant and the deceased alleged father. The May XX, 2005 results of the DNA test conducted by the Wuesthoff showed a greater than 99.99% probability that the NH is the claimant's father

Statutory Authority

For purposes of child's survivor's benefits under the Social Security Act (Act), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e) (2005). If the insured dies prior to the child applicant's birth and never married the child's mother, the child claimant's status as the surviving child of the insured is governed by either section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status under section 216(h)(3)(C) of the Act, the child claimant must show one of the following: (1) that the insured acknowledged in writing that the claimant is his child, (2) that a court decreed the insured to be the father of the claimant, (3) that the insured had been ordered to contribute to the support of the claimant or (4) that the insured is the father and was living with or contributing to the support of the child claimant at the time the insured died. We are aware of no evidence that satisfies any of the required conditions in section 216(h)(3)(C) of the Act.

To establish her status as the surviving child of a deceased insured individual under section 216(h)(2)(A) of the Act, a child claimant must show that she would be entitled to a child's share of the insured's intestate personal property under the law of the state in which the insured was domiciled at the time of his death. According to the record, the NH was born in Florida and was a resident of Florida at the time of his death. Therefore, Florida's law of intestate succession applies in determining the claimant's status as the child of the NH for purposes of section 216(h)(2)(A) of the Act. For a person born out of wedlock to establish the status of lineal descendant, Florida law provides as follows:

For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his or her father and is one of the natural kindred of all members of the father's family if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father.

(c) The paternity of the father is acknowledged in writing by the father.

FLA. STAT. ANN. § 732.108(2). The child claimant does not qualify under subparagraphs (a) or (c) because the evidence does not support a finding that the NH married or attempted to marry the child claimant's mother or that the NH acknowledged the child claimant in writing. To qualify under subparagraph (b), paternity must be established by an adjudication before or after the death of the father. Although there has been no actual paternity adjudication under FLA. STAT. ANN. § 732.108(2)(b), SSA adjudicators must apply Florida intestacy law under these circumstances as follows:

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2)(2005); See Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

ANALYSIS

To be adjudicated a lineal descendant under Florida intestacy law, a child born out of wedlock must prove paternity by clear and convincing evidence. See Breedlove v. Estate of Breedlove, 586 So. 2d 466 (Fla. App. 1991). Clear and convincing is something “more than a simple preponderance” and less than the beyond-a-reasonable-doubt standard applied in criminal cases. See In re Interest of D.J.S., 563 So.2d 655, 661 (Fla. App. 1990). “Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” R.S. v. Department of Children and Families, 831 So.2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re D~, 645 So.2d 398, 404 (Fla.1994)).

In the present matter, the evidence offered to support the child claimant's allegation that she is the natural child of the deceased NH consists of a DNA test.

Florida's paternity statutes distinguish between establishing paternity for child support purposes and for purposes of intestate succession. Under Florida's domestic relations law, Florida specifically permits scientific testing to determine paternity for purposes of support. See FLA. STAT. ANN. § 742.12. Under this statute, a court may require the child, mother and the alleged father to submit to scientific tests that are generally acceptable within the scientific community to show the probability of paternity. These tests must be conducted by a qualified laboratory. See FLA. STAT. ANN. § 742.12(1). A “qualified technical laboratory” is defined as a genetic-testing laboratory that may be under contract with the state's Department of Revenue, uses tests and methods of a type generally acknowledged as reliable by accreditation organizations recognized by the United States Department of Health and Human Services (DHHS), and is approved by such an accreditation organization. See FLA. STAT. ANN. § 409.256(h). Wuesthoff lists on its website that it is licensed by the State of Florida Agency for Health Care Administration (FHCA). On November 16, 2005, we contacted FHCA by phone. On this date, the FHCA confirmed that Wuesthoff is currently a licensed clinical laboratory in the state of Florida and that Wuesthoff's clinical laboratory license is valid through December 2006. The FHCA also verified through their computer system that Wuesthoff is currently accredited by DHHS. Therefore, we are of the opinion that Wuesthoff meets the test for a “qualified technical laboratory” under Florida law.

Unlike Florida's domestic relations paternity statute, Florida's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See FLA. STAT. ANN. § 732.108(2). Because Florida courts look to the law of other states for guidance in matters of first impression, we have looked to the court decisions of other states which have addressed the genetic testing of a putative father's relatives in intestacy proceedings. See Williams v. Estate of Pender, 738 So.2d 453, 456 (Fla. Dist. Ct. App. 1999) (adopts the clear and convincing evidence standard of proof in an action for “equitable” or “virtual” adoption by looking at law review articles that indicated a majority of states used that standard); White v. White, 710 So.2d 208, 209 (Fla. Dist. Ct. App. 1998) (in the absence of a dispositive Florida case, court found foreign court decisions persuasive).

Because the courts of Florida look to the decisions of other states on matters of first impression and because the legislative intent of the present FLA. STAT. ANN. § 732.108 was to be more liberal in allowing children born out-of wedlock to inherit from their natural fathers, it is our opinion that Florida courts would accept genetic testing from the putative father on the issue of paternity. See In re R~, 520 So. 2d 99, 101-102 (Fla. Dist. Ct. App. 1988) (compares the predecessor statute to Section 732.108 and notes that the “later statute is much broader than the one it replaced, being more liberal in allowing for inheritance by an illegitimate child” and noting that “one of the underlying purposes of the statute is to permit children to inherit from their natural fathers”).

To satisfy Florida's clear and convincing evidence standard, the evidence must be “sufficient to convince the trier of fact without hesitancy.” R.S., 831 So. 2d at 1277. According to the evidence provided to us, the DNA test report based on samples from the NH and the child claimant shows that the probability the child claimant is related to the NH is 99.99%. Although the record contains no evidence that excludes other male relatives of NH from being the claimant's father, there is also no evidence of record suggesting that any other member of the NH's family may be the father of the child claimant. Under these circumstances, it is not necessary to exclude the possibility that a male relative of the NH may have fathered the child claimant, and we do not recommend engaging in further development to exclude that possibility. See POMS GN 00306.065 C. We conclude, therefore, that DNA test results submitted are probative and can be used in determining whether claimant's status as the natural child of the NH has been established by clear and convincing evidence under Florida law.

Mary A. Sloan

Regional Chief Counsel

By: J. Samuel Childs

Assistant Regional Counsel

Florida courts would consider genetic testing of the putative father's relatives (including his acknowledged child) along with other evidence on the issue of paternity. To satisfy Florida's clear and convincing evidence standard, the evidence must be “sufficient to convince the trier of fact without hesitancy.”

In considering this child's claim for survivor's benefits, you asked whether a second child (C2) could qualify for survivor's benefits based upon DNA testing showing him to be the full sibling of a child (C1) already receiving benefits on the Number Holder's (NH's) record. Having considered the evidence presented, and the applicable federal and state law, it is our opinion that C2 would qualify for benefits based upon the DNA testing.

FACTS

NH died domiciled in Florida on September XX, 1990. C2 was born on September. C2's mother had another child C1, born on March XX, 1986, who was receiving child's benefits on NH's record. We do not know evidence was used to qualify C1 for benefits. The children's mother filed an application on C2's behalf in September 1990 but the application was denied because there was no proof of paternity. The children's mother filed another application for C2 in March 2004, this time presenting DNA test results showing a 99.95 percent probability that C1 and C2 had the same parents. The paperwork indicates that the results were certified by the laboratory director and that the laboratory used for DNA testing was accredited by the American Association of Blood Banks. However, the name of the laboratory is not clear.

Statutory and Regulatory Authority

For purposes of child's survivor's benefits under the Social Security Act (Act), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e). Where, as here, a claimant's mother and putative father never married, the child claimant's status as the surviving child of a number holder is governed by either section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status under section 216(h)(3)(C) of the Act, the child claimant must show that he is a natural child of the number holder and one of the following: (1) that the number holder acknowledged in writing that the child claimant is his child; (2) that a court decreed the number holder to be the father of the child claimant; (3) that the court ordered the number holder to contribute to the support of the child claimant; or (4) that the number holder is the father and was living with or contributing to the support of the child claimant at the time the number holder died. We are aware of no evidence that satisfies any of the required conditions in section 216(h)(3)(C) of the Act.

To establish his status as the surviving child of the deceased NH under section 216(h)(2)(A) of the Act, the state law definition of “child,” the child claimant must show that he would be entitled to a child's share of the NH's intestate personal property under the law of the state in which the NH was domiciled at the time of his death. According to the record, the NH was born in Florida and was a resident of Florida at the time of his death. There is no evidence suggesting that the NH's domicile was other than Florida. We conclude the NH was domiciled in Florida at the time of his death and that Florida's law of intestate succession is applicable in determining the child claimant's status as the lineal descendant of the NH for purposes of section 216(h)(2)(A) of the Act. For a person born out of wedlock to establish the status of lineal descendant, Florida law provides as follows:

For purposes of intestate succession in Florida, a person born out of wedlock is the lineal descendant of his or her father and is one of the natural kindred of all members of the father's family if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father.

(c) The paternity of the father is acknowledged in writing by the father.

Fla. Stat. Ann. § 732.108(2). C2 does not qualify under subparagraphs (a) or (c) because the evidence does not support a finding that the NH married or attempted to marry C2's mother or that the NH acknowledged C2 in writing. To qualify under subparagraph (b), paternity must be established by an adjudication before or after the death of the father. Although there has been no actual paternity adjudication under Fla. Stat. Ann. § 732.108(2)(b), SSA adjudicators must apply Florida intestacy law under these circumstances as follows:

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2)(2005); see Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

ANALYSIS

To be adjudicated a lineal descendant under Florida intestacy law, a child born out of wedlock must prove paternity by clear and convincing evidence. See Breedlove v. Estate of Breedlove, 586 So. 2d 466 (Fla. App. 1991). Clear and convincing is something “more than a simple preponderance” and less than the beyond-a-reasonable-doubt standard applied in criminal cases. See In re Interest of D.J.S., 563 So.2d 655, 661 (Fla. App. 1990). “Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” R.S. v. Department of Children and Families, 831 So.2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (citing In re D~, 645 So.2d 398, 404 (Fla.1994)).

In the present matter, the evidence offered to support C2's allegation that he is the natural child of the deceased NH consists of a DNA test and allegations of C2's mother. Florida's paternity statutes distinguish between establishing paternity for child support purposes and for purposes of intestate succession. Under Florida's domestic relations law, Florida specifically permits scientific testing to determine paternity for purposes of support. See Fla. Stat. Ann. § 742.12. Under this statute, a court may require the child, mother and the alleged father to submit to scientific tests that are generally acceptable within the scientific community to show the probability of paternity. These tests must be conducted by a qualified laboratory. See Fla. Stat. Ann. § 742.12(1). A “qualified technical laboratory” is defined as a genetic-testing laboratory that may be under contract with the state's Department of Revenue, uses tests and methods of a type generally acknowledged as reliable by accreditation organizations recognized by the United States Department of Health and Human Services (HHS), and is approved by such an accreditation organization. The term includes a genetic-testing laboratory used by another state, if the laboratory has comparable qualifications. See Fla. Stat. Ann. § 409.256(h). The laboratory conducting the tests at issue here is apparently located in Michigan but is accredited by the American Association of Blood Banks. The lab may meet the test for a “qualified technical laboratory” under Florida law, but further investigation is needed to ascertain the full name of the laboratory and whether it is used in Michigan.

Unlike Florida's domestic relations paternity statute, Florida's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See Fla. Stat. Ann. § 732.108(2). We have found no Florida case law or statute specifically addressing the probative value of genetic testing of the putative father's relatives for purposes of establishing paternity for either support or intestacy purposes. Because Florida courts look to the law of other states for guidance in matters of first impression, we have looked to the court decisions of other states which have addressed the genetic testing of a putative father's relatives in intestacy proceedings. See Williams v. Estate of Pender, 738 So.2d 453, 456 (Fla. Dist. Ct. App. 1999) (adopts the clear and convincing evidence standard of proof in an action for “equitable” or “virtual” adoption by looking at law review articles that indicated a majority of states used that standard); White v. White, 710 So.2d 208, 209 (Fla. Dist. Ct. App. 1998) (in the absence of a dispositive Florida case, court found foreign court decisions persuasive).

Our review of the court decisions in other states shows that the genetic tests of the putative father's relatives (including a known child) is, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. See e.g., In the Matter of the Application of Ruth Santos, 768 N.Y.S.2d 272 (N.Y. 2003) (court stated DNA testing of a child's putative grandparents, could be used to satisfy the clear and convincing evidence standard for proving paternity); In the Matter of the Estate of Robert Nasert, 748 N.Y.S.2d 654 (N.Y. 2002) (DNA testing on the putative father's twin, coupled with other evidence constituted clear and convincing evidence of paternity); Drake, 2001 WL 705784 (district court concludes DNA testing of the putative father's mother coupled with other evidence supported finding of clear and convincing evidence of paternity); In the Matter of the Estate of S~, 612 N.Y.S.2d 756 (N.Y. 1994) (court found DNA testing of a child's putative grandparents could provide clear and convincing evidence of paternity); M.A. v. The Estate of A.C., 643 A.2d 1047 (N.J. Super. 1993) (court ordered the decedent's siblings and mother to submit to DNA testing for paternity purposes in an intestacy proceeding because denying the tests could deprive the child of evidence necessary to establish his right to equal treatment under the law); Tipps v. Metropolitan Life Insurance Company, 768 F. Supp. 577, 580 (S.D. Tex. 1991) (DNA testing of deceased putative father's parents, legitimate son, and putative daughter). In re Estate of R~, 583 A.2d 782, 784 (N.J.Super 1990) (court has “inherent power” to order collateral relatives of decedent to submit to blood tests to determine paternity of non-marital child) (cited in In re Estate of M~, 868 A.2d 680, 685 n.4 (Vt. 2004)).

Fla. Stat. Ann. § 732.108 was to be more liberal in allowing children born out-of wedlock to inherit from their natural fathers, so it is our opinion that Florida courts would, at a minimum, consider genetic testing of the putative father's relatives (including his acknowledged child) along with other evidence on the issue of paternity. See In re R~, 520 So. 2d 99, 101-102 (Fla. Dist. Ct. App. 1988) (compares the predecessor statute to Section 732.108 and notes that the “later statute is much broader than the one it replaced, being more liberal in allowing for inheritance by an illegitimate child” and noting that “one of the underlying purposes of the statute is to permit children to inherit from their natural fathers”).

To satisfy Florida's clear and convincing evidence standard, the evidence must be “sufficient to convince the trier of fact without hesitancy.” R.S., 831 So. 2d at 1277. The DNA testing at issue here is especially compelling, establishing that there is a 99.95 percent probability that C1 and C2 share the same parents in a case where SSA is satisfied that NH is C1's father. We are aware of no evidence showing the NH is not the father of the child applicant. Under these circumstances, it is our opinion that you would be justified in concluding that C2's status as the natural child of the NH has been established by clear and convincing evidence under Florida law.

Mary A. Sloan

Regional Chief Counsel

By: Laurie G. Remter

Assistant Regional Counsel

Under Florida law, DNA testing results for the alleged grandparents of a claimant alone do not establish clear and convincing evidence of the wage earner's paternity.

QUESTION

Whether DNA testing done on grand parents is sufficient to establish that Kortnie is the child of Gregory under Florida law?

BACKGROUND

Rosario (Claimant's mother) filed for surviving child's benefits on behalf of Kortnie (Claimant) on the wage record of Gregory (wage earner). The wage earner died on February XX, 2003 in the state of Florida. The Claimant was born on February. This application was filed on October XX, 2003. Evidence submitted with the application included a birth certificate with no father identified and DNA test results. The DNA testing was performed on the Claimant, Claimant's mother and the alleged paternal grandparents. The testing facility found a 99.97% probability that a son of the alleged grand parents was the claimant's father.

DISCUSSION

We have concluded that the Claimant would not be recognized as the child of the wage earner pursuant to Florida law. Florida statutes provide that where there is a court hearing a paternity matter, the court may require the child, mother and the alleged father to submit to genetic testing. Fla. Stat. Ann. § 742.12 (2005). The test results are admitted into evidence and are weighed along with other evidence of paternity unless the statistical probability of paternity equals or exceeds 95 percent. A statistical probability of paternity of 95 percent or more creates a rebuttable presumption. There are no statutory provisions for genetic testing of other relatives to establish paternity under Florida law. The test results here indicate a probability that a son of the alleged grandparents is claimant's father, not a probability that the wage earner is the claimant's father. Therefore, no rebuttable presumption of paternity is established based on testing done on the alleged grandparents of the wage earner.

The Claimant is also not entitled to inherit the intestate estate of the wage earner as his child under Florida law. The evidence submitted does establish entitlement under the provisions of Fla. Stat. Ann. § 732.108. With respect to intestate inheritance, § 732.108(2)(b) provides that a person born out of wedlock is a lineal descendant of the father if the paternity of the father is established by an adjudication before or after the death of the father. The standard of proof under § 732.108(2) should be clear, strong, and unequivocal, that is, to be adjudicated a lineal descendant, a child born out of wedlock needs to prove paternity by clear and convincing evidence. Breedlove v. Estate of Breedlove, 586 So. 2d 466 (Fla. App. 1991). No clear and convincing evidence has been presented to show that the Claimant met any of these statutory requirements.

As noted earlier, the application was submitted with a birth certificate with no father identified and the results of genetic testing. A letter from the Oklahoma testing facility contained the followed statement: “The results of our testing are attached and indicate that a son of Ray and Barbara A~ can not be excluded as the father, and is likely to be the father of Kortnie D. H~. This conclusion assumes however, that Ray and Barbara A~ are the parents of the alleged father in this case.”

The genetic testing did not provide conclusive evidence that the wage earner was the father of the Claimant. No evidence was submitted with the application to show that the grand parents did not have any other sons. Furthermore, there was no evidence was presented verifying that the individuals tested were the natural parents of the wage earner. In reviewing evidence presented, and applicable Florida statutes, we have concluded that the Claimant has not presented clear and convincing evidence to show that she is the child of the wage earner under the laws of the state of Florida.

Sharon F. Young

Regional Chief Counsel

By: Mary A. Sloan

Assistant Regional Counsel

Under Florida law, DNA test results which establish a 95% or greater probability of paternity create a rebuttable presumption that the alleged father is the biological father of the child.

INTRODUCTION

This memorandum is in response to your request for our legal opinion about DNA test results you provided us. You specifically asked whether the DNA test results, which show a 99.99% probability of paternity, would be sufficient, standing alone, to establish a parent-child relationship between M., the deceased number holder, and Omarion, where no other evidence of paternity was submitted, and where the child's Virginia birth certificate does not list the deceased number holder as the father.

SUMMARY

The number holder was domiciled in Florida at the time of his death. Based upon our research of the Florida intestacy statute and examination of the DNA test results you provided, we conclude that although a parent-child relationship could be established based upon the DNA test results standing alone, this claim should be further developed by obtaining supporting information from the mother. We note that the DNA test in question was billed to, and is stamped as having been filed with, the Norfolk Juvenile and Domestic Relations District Court. Tarsha states on Form SSA-795, that she and the number holder were “going to court” about the child's paternity when the number holder was murdered. Presumably, the DNA testing was done pursuant to court order in connection with the paternity action, and that proceeding will likely result in a state court judgment that the number holder is the biological father of the child.

Pending the state court's judgment, however, you should continue to develop the claim, because Florida law allows you to rely upon DNA test results showing a 95% or greater probability of paternity to find that a parent-child relationship exists, so long as there is no contrary evidence on the issue of the child's paternity.

BACKGROUND

The DNA report you provided shows that the number holder, M., died on June XX, 2003. His DNA was drawn on June XX, 2003. DNA testing of Tarsha and Omarion was done on August XX, 2003. Omarion was born to Tarsha on April in Virginia. Tarsha and the number holder were never married. Omarion states on Form SSA-795 that she and the number holder were “together at the time of conception.”

The DNA report concludes that the number holder cannot be excluded as the biological father of Omarion, because they share genetic markers. The report finds that there is a 99.99% probability of paternity compared to the untested, unrelated Black male population. The Combined Paternity Index yielded a probability of paternity of 329,648 to 1.

The claim file does not include a copy of the number holder's death certificate. However, a published news report describing the circumstances of the number holder's death (attached) shows that, on or about June 6, 2003, he moved from Virginia to Florida, established a residence in Florida and began a new job. On the date of his death, the number holder had worked for one week in Florida and received his first paycheck. He was shot and killed while cashing his first paycheck in Florida. As you noted, the birth certificate issued by the Commonwealth of Virginia on July XX, 2002 contains no information concerning the father of Omarion.

On April 14, 2004, Tarsha applied for Surviving Child Benefits on behalf of Omarion, on the account of the deceased number holder.

DISCUSSION

The Social Security Act (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(h)(2)(A) (emphasis added). In the present case, the number holder was domiciled in Virginia in April 2002, when the child was born, but he changed his domicile to the state of Florida in June 2003, and he was domiciled there at the time of his death.

Under the regulations, legal domicile is the permanent, true and fixed home of a person. It is the place to which a person intends to return whenever he or she is absent. 20 C.F.R. § 404.303. Domicile is mainly a matter of intention as indicated by actions. To change domicile, a person must intend to make a home in the new place permanently or for an indefinite period; and be physically present in the new place while having that intent. POMS GN 00305.001 In June 2003, the number holder moved to Florida and maintained a Florida residence, I~ D~, Lauderhill, Florida. He had worked for one week in Florida before his death (see attachment). His Florida residence and employment in Florida demonstrates his intention to make a new home there permanently. Therefore, the number holder was domiciled in Florida and the Florida intestacy statute applies.

The Florida intestacy statute, § 732.108(2), Florida Statutes, provides that a child born out of wedlock can establish that he or she is a putative heir for purposes of intestate succession if the paternity of the father is established by an adjudication before or after the death of the father. Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. 1st DCA 1991). The Florida Statutes also provide that, as an evidentiary matter, for cases decided after May 31, 1994, Human Leukocyte Antigen tests ^[10] or other scientific tests that are generally acceptable within the scientific community which establish a 95% or greater probability of paternity create a rebuttable presumption that the alleged father is the biological father of the child. If a party fails to rebut the presumption of paternity which arises from statistical probability of paternity of 95% or more, the court may enter a summary judgment of paternity. Florida Statutes, § 742.12. See also POMS GN 00306.455 (discussing Florida law).

Under Florida Statutes § 742, paternity must be established by clear and convincing evidence. See § 742.031, Fla. Stat.; Gingola v. Fla. Dep't of Health & Rehabilitative Servs., 634 So.2d 1110, 1111 (Fla. 2d DCA 1994). DNA test results showing a 95% or greater probability of paternity, and the mother's supporting testimony, have been found sufficient to meet the clear and convincing evidence standard in Florida. See e.g., Hill v. Jackson, App. 1 Dist., 497 So.2d 688 (1986) (HLA test results showing a 99.99% probability that putative father was the father, and mother's testimony that she engaged in sexual relations with putative father and no other during period of conception, was clear and convincing evidence of paternity). Omarion states on Form SSA-795 that she and the number holder were “together at the time of conception.” Therefore, her statement, together with a valid DNA test showing a 99.99% probability of paternity, may be relied upon in determining the effective date for a parent-child relationship. We find the DNA test you provided to be valid and sufficient to meet the clear and convincing evidence standard under Florida law

CONCLUSION

Based upon our research, we conclude that the number holder was domiciled in Florida at the time of his death. Our review of the evidence, the Florida intestacy statutes and examination of the DNA test results you provided persuades us that a parent-child relationship could be established based upon the DNA test results provided.

The test results show that S~ cannot be Theodore's biological father. After additional proceedings, a General Master filed a Report on April XX, 1990, enjoining S~ from using the blood tests “in any manner whatsoever.”

Donna Calvert

Regional Chief Counsel

By: Robert Drum

Assistant Regional Counsel

The NH, a DIB beneficiary, was domiciled in Tennessee when the child's claim was filed in 1998. The child was born in 1983 during the NH's marriage to the child's mother. In 1984, the mother filed a petition for divorce in Florida, and the NH filed a counter-petition contesting the child's paternity. Following a trial, a final judgment of divorce was entered on 9/11/85. The court found that the child was the NH's child and the NH was ordered to pay child support. The NH subsequent requested for a blood test was denied and subsequent appeals dismissed. In 1990, the NH had blood tests performed on himself and the child. The results show that the NH cannot be the child's biological father.

After additional proceedings, a General Master's Report on 4-13-90 enjoined the NH from using the blood tests in any manner whatsoever. The Florida court has not changed its ruling that the child is the NH's legitimate child. If the child is recognized as the NH's legitimate child under Florida law, he would be the NH's child under Tennessee law.

Based on Florida case law, the child is the NH's legitimate child as a result of the divorce judgment. Therefore, the child is his child for purposes of intestate inheritance rights and is entitled to child's benefits pursuant to section 216(h)(2)(A) of the Act.

You have asked our opinion as to whether Theodore (Theodore) is the child of the NH, Stanford (S~) for purposes of the Social Security Act (Act), given a Florida court's determination that Theodore is S~'s legitimate child and a blood test that shows Theodore is someone else's child. For the reasons set out below, we believe Theodore is S~'s child for purposes of the Act.

The facts presented are that on September XX, 1998, Dorie filed a claim on behalf of Theodore for child's benefits as S~'s legitimate child. S~ is receiving DIB benefits and was domiciled in Tennessee when Theodore's claim was filed. Theodore was born on September, during S~'s marriage to B~. On October, B~ filed a petition for divorce with the Circuit Court for Broward County, Florida. On October 20, 1984, S~ filed a counter-petition contesting Theodore's paternity. Following a trial, a final judgment of divorce was entered on September 11, 1985. The Florida court found that Theodore was S~'s child, and S~ was ordered to pay child support.

After the final judgment of divorce, S~ again raised the issue of paternity and requested a blood test; a hearing was held on October XX, 1985. S~'s motion was denied, and subsequent appeals were dismissed. S~'s November XX, 1987, Motion to Permit Blood Testing to Determine Paternity was dismissed with prejudice. In March 1990, S~ had blood tests performed on himself and Theodore.

The test results show that S~ cannot be Theodore's biological father. After additional proceedings, a General Master filed a Report on April 13, 1990, enjoining S~ from using the blood tests “in any manner whatsoever.”

The Florida court has not changed its ruling that Theodore is S~'s legitimate child. In August 1996, the court held S~ in contempt for failure to pay back child support. You have noted that if the child is recognized as S~'s legitimate child under Florida law then, under Tennessee law, he would be S~'s child and entitled to child's benefits.

The legal problems that arise when a child is born to a woman who is married, but whose husband is not the biological father have been referred to as “perplexing and fraught with difficult social issues.” Lefler v. Lefler, 722 So. 2d 941, 942 (Fla. App. 1998).

The same view is advanced in a recent article entitled “Quasi-Marital Children: The Common Law's Failure in P~ and D~ Calls for Statutory Reform”, 26 Fla. St. U.L. Rev. 219 (1999). Under the principles set forth by the Florida Supreme Court in Department of Health Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla. 1993), a trial court can deny a court ordered blood test if it finds that the child's best interests would not be served “by being declared illegitimate and having parental rights transferred to the biological father.” Id. at 309. P~- was significantly narrowed in Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997). In D~, the Florida Supreme Court held that “a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted (citations omitted).” Id. at 1254. The D~ court limited P~ to instances “where a child faces the threat of being declared illegitimate and the 'legal father' also faces the threat of losing parental rights which he seeks to maintain.” Id. at 1255. The court concluded that paternity and legitimacy are related but separate and distinct concepts. Even though D~ had no duty to pay child support upon the dissolution of the marriage, the child remained legitimate because she was born during the parties' valid marriage. See Gantt v. Gantt, 716 So. 2d 846 (Fla. App. 1998) (former husband's request for blood tests of 6 children granted [3 born during marriage] even though, if blood test results excluded paternity, there was no evidence of other means of support for the children).

In our opinion, Theodore is not entitled to child's benefits pursuant to 42 U.S.C. § 416(h)(3)(B), because he is not S~'s “son or daughter.” The Florida Supreme Court's decision in D~ is controlling, and, as previously noted, the D~ court distinguished between paternity and legitimacy. SSR 83-37c. While Theodore may be considered legitimate as a result of the divorce judgment, he clearly is not S~'s son as required for entitlement under § 416(h)(3)(B). Nevertheless, because Theodore is S~'s legitimate child as a result of the divorce judgment, Theodore is deemed to be S~'s child for purposes of intestate inheritance rights, and is entitled to child's benefits pursuant to the provisions of 42 U.S.C. § 416(h)(2)(A).

The NH was domiciled in Tennessee when the child's claim was filed on his record. The child was born in 1983, during his mother's marriage to the NH. In 1984, the mother filed for divorce with a Florida circuit court, and the NH filed a counter-petition contesting paternity. Following a trial, a final judgment of divorce was entered; the court found that the child was the NH's child. After the judgment of divorce, the NH's motions to permit a blood test to determine paternity were dismissed by the court. In 1990, the NH had blood tests performed on himself and the child, which showed that he cannot be the child's biological father. The NH was enjoined by a General Master from using the blood tests in any manner whatsoever. The Florida court has not changed his ruling that the child is the NH's legitimate child.

While the child may be considered legitimate under Florida law (and therefore under Tennessee law) as a result of the divorce judgment, he is not the NH's biological son as required for entitlement under section 216(h)(3)(B) of the Act. However, because he is the NH's legitimate child as a result of the divorce judgment, he is entitled to child's benefits under section 216(h)(2)(A) of the Act.

You have asked our opinion as to whether Theodore (Theodore) is the child of the NH, Stanford(S~) for purposes of the Social Security Act (Act), given a Florida court's determination that Theodore is S~'s legitimate child and a blood test that shows Theodore is someone else's child. For the reasons set out below, we believe Theodore is S~'s child for purposes of the Act.

The facts presented are that on September XX, 1998, Dorie B~ (B~) filed a claim on behalf of Theodore for child's benefits as S~'s legitimate child. S~ is receiving DIB benefits and was domiciled in Tennessee when Theodore's claim was filed. Theodore was born on September, during S~'s marriage to B~. On October 9, 1984, B~ filed a petition for divorce with the Circuit Court for Broward County, Florida. On October XX, 1984, S~ filed a counter-petition contesting Theodore's paternity. Following a trial, a final judgment of divorce was entered on September 11, 1985. The Florida court found that Theodore was S~'s child, and S~ was ordered to pay child support.

After the final judgment of divorce, S~ again raised the issue of paternity and requested a blood test; a hearing was held on October XX, 1985. S~'s motion was denied, and subsequent appeals were dismissed. S~'s November XX, 1987, Motion to Permit Blood Testing to Determine Paternity was dismissed with prejudice. In March 1990, S~ had blood tests performed on himself and Theodore. The test results show that S~ cannot be Theodore's biological father. After additional proceedings, a General Master filed a Report on April XX, 1990, enjoining S~ from using the blood tests “in any manner whatsoever.”

The Florida court has not changed its ruling that Theodore is S~'s legitimate child. In August 1996, the court held

S~ in contempt for failure to pay back child support. You have noted that if the child is recognized as S~'s

legitimate child under Florida law then, under Tennessee law, he would be S~'s child and entitled to child's benefits.

The legal problems that arise when a child is born to a woman who is married, but whose husband is not the biological father have been referred to as “perplexing and fraught with difficult social issues.” Lefler v. Lefler, 722 So. 2d 941, 942 (Fla. App. 1998). The same view is advanced in a recent article entitled “Quasi-Marital Children: The Common Law's Failure in P~ and D~ Calls for Statutory Reform”, 26 Fla. St. U.L. Rev. 219 (1999). Under the principles set forth by the Florida Supreme Court in Department of Health Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla. 1993), a trial court can deny a court ordered blood test if it finds that the child's best interests would not be served “by being declared illegitimate and having parental rights transferred to the biological father.” Id. at 309. P~ was significantly narrowed in Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997). In D~, the Florida Supreme Court held that “a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted (citations omitted).” Id. at 1254. The D~ court limited P~ to instances “where a child faces the threat of being declared illegitimate and the 'legal father' also faces the threat of losing parental rights which he seeks to maintain.” Id. at 1255. The court concluded that paternity and legitimacy are related but separate and distinct concepts. Even though D~ had no duty to pay child support upon the dissolution of the marriage, the child remained legitimate because she was born during the parties' valid marriage. See Gantt v. Gantt, 716 So. 2d 846 (Fla. App. 1998) (former husband's request for blood tests of 6 children granted [3 born during marriage] even though, if blood test results excluded paternity, there was no evidence of other means of support for the children).

In our opinion, Theodore is not entitled to child's benefits pursuant to 42 U.S.C. § 416(h)(3)(B), because he is not S~'s “son or daughter.” The Florida Supreme Court's decision in D~ is controlling, and, as previously noted, the D~ court distinguished between paternity and legitimacy. SSR 83-37c. While Theodore may be considered legitimate as a result of the divorce judgment, he clearly is not S~'s son as required for entitlement under § 416(h)(3)(B). Nevertheless, because Theodore is S~'s legitimate child as a result of the divorce judgment, Theodore is deemed to be S~'s child for purposes of intestate inheritance rights, and is entitled to child's benefits pursuant to the provisions of 42 U.S.C. § 416(h)(2)(A).

PARENT AND CHILD — COURT DECREE OF PATERNITY — FLORIDA

Under Florida law where a court of competent jurisdiction, such as a probate court, decrees in an order involving heir's rights that an illegitimate child is the natural daughter and heir of the deceased wage earner, although the order may be irregular on its face it is not void on collateral attack if the irregularity does not render the order unintelligible or uncertain, and the order's ultimate conclusion is clear. See State ex rel. McQuire v. Mayo, 175 So. 732 (1937)

(S~, Reginald L. ~ RAIV (A~) to ARC/Prog., Atlanta, April 2, 1987.)

PARENT AND CHILD — COURT DECREE OF PATERNITY — FLORIDA

The decree of paternity and heirship, although not subject to collateral attack in a state court proceeding, held not binding upon the Secretary in that it does not comply with the standards delineated in Social Security Ruling SSR 83-37c, Gray v. Richardson, 474 F.2d 1370 (6th Circuit 1973). Paternity is not shown to have been genuinely contested before the state probate court by parties of opposing interest.

( Reginald . ~ RAIV (A~) to ARC/Prog., Atlanta, April 2, 1987.)

ILLEGITIMACY AS AFECTINGING INHERITANCE RIGHTS-FLORIDA

Where the Florida State court order is not accepted by the Secretary because it failed to meet Gray requirements, the inheritance rights of the illegitimate claimant child must be determined by the Secretary. In such instances, the determination of the Secretary regarding the devolution of intestate personal property shall be based on the intestate succession laws of the state where the deceased wage earner died domiciled. (See Taylor v. Richardson, 354 F.Supp 13, M.D. La., 1973; also see opinion Re James T. Haley, Deceased Wage Earner (GC) [S~] to OHA, 6/12/79, involving application of Delaware intestacy law under Section 216(h)(2)(A) of the Act. The Secretary is also required to use the same quantum of proof as would be used by the state court. (See opinion James T. H~, supra.)

(Reginald ~ RAIV (A~) to ARC/Prog., Atlanta, April 2, 1987.)

In your memorandum you asked if the Florida State Probate Court Order, which declared Katherine the daughter and heir of the deceased wage earner, should be accepted as sufficient to base a finding of child status within the meaning of Section 216(h)(2)(A) of the Social Security Act.

The pertinent facts are appropriately recited in your memorandum as follows:

“Reginald , a fully-insured worker, died January XX, 1979, domiciled in Sanford, Florida. On September, Katherine was born [posthumously] to Sandra who states that Katherine was fathered by the worker out of wedlock. On January XX, 1980, Sandra applied for survivor's insurance benefits on behalf of Katherine as a child of the worker. Her claim was denied because the evidence did not sufficiently establish both a biological and a dependency relationship between the worker and the child. Katherine was notified of the denial on March XX, 1980, and on May XX, she requested reconsideration. A reconsideration determination was made on June XX, 1980, affirming the prior denial. [There was a new initial determination under “Boatman” on February XX, 1982. She was again notified of the denial.] Sandra again filed an application for benefits on behalf of Katherine on October XX, 1985.

On January XX, 1980, Sandra completed a child relationship statement in which she advised that she had no writing by the worker that constituted acknowledgement that he fathered her child. There were no judicial records made of the relationship at that time and she was not living with the worker or receiving contributions from him when he died. Subsequently, she told a Social Security representative that the worker was contributing to her support, but she had no evidence.

Sandra furnished numerous statements from her relatives, the worker's relatives, and others who believed that the worker fathered her child. Only two of the people making statements said that the worker told them that Sandra was pregnant with his child. The remaining statements were based on hearsay, and/or on the child's resemblance to the worker.

Reginald mother, Annie stated on January 16, 1980, that the worker did not know that Sandra was pregnant when he died. She stated that on the Tuesday before the worker died, that he and Sandra had gone to the doctor for the pregnancy tests and that the results would be back at the end of the week. The worker died on Friday of the same week, before he learned of the results of the tests. Ms. M~ further stated that Sandra told her the following week that she was pregnant.

Sandra submitted a Seminole County Florida Probate Court order of paternity with the application filed on October XX, 1985. The court order states that Reginald is the father of Katherine Under POMS GN00306.135 (Florida), an adjudication of paternity after the death of the father can confer the status of child based on inheritance rights.

We quote the following passages from an April 21, 1983, Florida precedent memorandum (James, Deceased - Social Security Number ~ ).

Generally, the Probate Court of Florida decides the applicant's status and determines the inheritance rights of the illegitimate child pursuant to Section 732.108(2) et seq. The Secretary generally accepts the finding of the State court regarding the child's status and the inheritance rights although the State's determination is not binding on the Secretary.

The M~ opinion also clearly indicates that the Florida courts have held that for the establishment of paternity after the father's death, pursuant to Florida Statutes Annotated, Chapter 732, Section 732.108(2)(b), the standard of proof should at least meet the standard required under Florida law for that of a lost writing. Such proof is based on an evidentiary standard of clear, strong and unequivocal evidence which would remove every reasonable doubt.

In the subject case, the statement by Annie mother of the deceased worker, declared that her son did not know when he died that Sandra was expecting a child. This fact casts strong doubt on a determination of paternity based on oral acknowledgement of his having fathered a child, Katherine.

We are aware of an earlier memorandum opinion of April 11, 1983, in the case of Samuel , in which the Regional Attorney accepted a similar Florida Probate Court order as being sufficient to establish the heir-ship of the child of a deceased worker. A copy of this opinion is enclosed in the file as further reference. We also have attempted to apply the rationale contained in the reported case of Gray vs. Richardson, 474 F.2d 1370 (6th Cir. 1973) which has been included in Social Security Rulings at page 17 of the Cumulative Edition 1983. It is because of the prerequisites set out in this case for our acceptance of a state court's order that we seek your specific advices. [sic] It does not appear from our analysis that the prerequisites of there being a genuine contest before the state court by parties of opposing interests and a resolution by the state court which is consistent with Florida law have been met.”

The question before us is whether under Florida law a probate court order determining the heirs of a deceased wage earner is sufficient to establish the inheritance rights of an illegitimate child after the death of the wage earner so as to qualify the child for benefits under Social Security Act Section 216 (h)(2)(A). In order to resolve this question, both Federal and State laws must be considered.

The Federal law applicable to the present case is found at Section 216(h)(2)(A) of the Social Security Act. Section 216(h)(2)(A) provides in pertinent part as follows:

In determining whether an applicant is a child or parent of a fully or currently insured individual for the purpose of this Title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death .... Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

Since the wage earner was domiciled in Florida at the time of his death, the laws of that State are applicable. Although the court did not indicate which State statute it used in the issuance of the decree, we presume that the order was issued pursuant to Florida Statutes Annotated (FSA), Chapter 732. (Florida Probate Code - Intestate Succession and Wills.) We specifically believe that the court issued the order pursuant to Section 732.108(2)(b) which defines the rights of persons born out of wedlock. (See W~ S., Deceased - SSN ~ RAIV (J~), to Dir., Ins. Prog. Br., Atl., 4/5/83.) Section 732.108(2), et seq., reads as follows:

(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his mother and is one of the natural kindred of all members of the mother's family. The person is also a lineal descendant of his father and is one of the natural kindred of all members of the father's family if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father.

(c) The paternity of the father is acknowledged in writing by the father.

The Florida State Court of Appeals has construed Section 732.108(2)(b) to provide for adjudication of paternity after the father's death. See In Re Estate of O~, 397 So.2d 420, Fla. Dist Ct. App. (1981). The probate court in the instant case had before it a petition for the determination of the beneficiaries of Reginald , and the decree issued was not explicitly called an Order of Paternity. Nevertheless, it is our opinion that the Order is the same as an Order of Paternity considering the scope of Section 732.108(2)(b). (See supra.)

In your memorandum, you attack the submitted state court order in two ways. First, you imply that the probate court order did not utilize the proper standard of proof in making its determination of the inheritance rights of the child under Florida law in light of a statement by the deceased wage earner's mother that at the time of his death, her son did not know Sandra was expecting a child. The evidentiary standard to be applied by the courts in such instances is one of clear, strong and unequivocal evidence which would remove every reasonable doubt. Your challenge is one of the integrity of the probate court judgment which constitutes a collateral attack on said judgment. [See Edward Thomas Company v. Thomas, 49 F.2d 500 (1931).]

We will look at the outset at the nature of the order. It is well settled law in Florida that a judgment regular on its face cannot be collaterally attacked [See State ex rel. Frederich vs. Howell, 156 Fla. 163, 23 So.2d 153 (1945)]. However, the instant order is irregular on its face. The order is entitled In Re: Estate of Reginald L. S~, Deceased but in the premises states, “THIS CAUSE came on the Petition for Determination of Beneficiaries of KATHERINE .... “ In the. actual order it is stated: “1. That, “REGINALD is hereby declared to be the father of KATHERINE .... “ The irregularity is the inconsistency of the title and premises of the order. The Florida Supreme Court has held that on collateral attack on a judgment of a court having jurisdiction of the subject matter and of the parties, a presumption favors the validity of the judgment. It will not be declared void for mere error or irregularity in entry or record of judgment, if defects do not make it absolutely unintelligible and, therefore, void for uncertainty. See State ex tel. McQuire v. Mayo, 128 Fla. 699; 175 So. 732 (1937). The case file contains nothing about the nature of the court proceedings, therefore, we must presume the court had jurisdiction of the subject matter and the parties and that all parties in interest were properly served. The irregularity on the face of the judgment does not create an uncertainty; the order is clear. The ultimate conclusion of the court that Reginald is the father of Katherine is certain and clear. Thus, the judgment of the Seminole County Probate Court would not be subject to collateral attack and the judgment is binding on the courts in Florida.

Second, you avert that the state court order does not satisfy the second and fourth prerequisites in Gray vs. Richardson, 474 F.2d 1370, 1373 (6th Circuit 1973). The Secretary is required to follow a court determination only when the following prerequisites are met:

(1) An issue in a claim for Social Security benefits previously has been determined by a state trial court of competent jurisdiction;

(2) such issue was genuinely contested before the state court by parties with opposing interests;

(3) the issue falls within the general category of domestic relations; and

(4) the resolution by the state trial court was consistent with the law enunciated by the highest court in the state.

With respect to the second prerequisite, it is the opinion of this office that there could have been parties to the Seminole County Probate Court judgment who could have had "opposing interests." See Barbara M~ v. Harris, CCH U.I.R. par. 17,530, (S.D. Ohio 12/5/80). The case file is void, however, of any information about the proceedings other than the court order itself. The record of statements by interested persons, including statements of the deceased wage earner's mother, tend to support the proposition that Reginald was the father of Katherine Since the court order recites that Katherine is the sole heir and beneficiary of the deceased wage earner and there is no evidence in the case file to show that the issue of Katherine heirship was genuinely contested before the probate court by parties with opposing interest, we believe you could find that prerequisite two is not satisfied.

Prerequisite four requires that the Seminal County Probate Court's determination be consistent with the law enunciated by the highest court of Florida. Assuming as we do that the probate court issued its order pursuant to Florida Statutes Annotated, Chapter 732., specifically, Section 732.108(2)(b), supra, it is our opinion that the Supreme Court of Florida would hold that the rights of Katherine under the Florida law at Section 732.108(2)(b) would be controlled by the judgment of the county probate court in the estate proceeding. There is no indication that correct legal principals were not applied.

Accordingly, we find that the Seminole County Court Order met prerequisites one, three, and four but that the file is insufficient to show that the order satisfies prerequisite two. Normally, the Secretary should not accept the determination made by the state trial court where all four prerequisites are not met. See G~, supra.

Nevertheless, based on the evidence in the file, the claimant child may qualify under Section 216(h)(2)(A) of the Act. The child will be entitled to benefits if she can demonstrate that the intestate law of Florida would permit her to inherit the decedent's personal property. The specific relevant provision is found at Section 732.108(2), Florida Statutes Annotated. As stated in our opinion in M~, supra "the probate court of Florida generally decides the applicant's status and determines the inheritance rights of the illegitimate child pursuant to Section 732.108(2), et. seq. Generally, the Secretary accepts the findings of the state court regarding the child's status and the inheritance rights of the child although the state's determination is not binding on the Secretary." However, the Secretary should accept determinations made by state trial courts where the four prerequisites established in G~, supra. are found.

Consequently, since the state adjudication of paternity in this case may not be acceptable to the Secretary for the purpose of establishing inheritance rights because it may not have been a genuinely contested proceeding involving an issue in the claim for Social Security benefits by parties with opposing interests, the Secretary must decide whether to accept the decree (and further development may be required if all four G~ elements are not satisfied on the face of the decree) or must make an independent determination on the issue of paternity and inheritance rights of the illegitimate child. The Secretary is required by Section 216(h)(2)(A) to apply such law as would be applied by the Florida courts in determining the devolution of the intestate personal property of the insured under the inheritance laws of Florida [see Taylor vs. Richardson, 354 F.Supp. 13, 16 M.D. of La. (1973), aff'd sub. nom.; Taylor vs. Weinberger, 489 F.2d 1311, 5th Cir. (1974); opinion Re: James Deceased Wage Earner, GC [S~] to OHA 6/12/79]. The Secretary has the duty to determine what the courts of the state would do if an action was properly brought in the appropriate state court. The Secretary is also required to use the same quantum of proof to establish paternity as would be used by the state court (see Taylor vs. Richardson, supra. and James supra.). James, the Secretary must, in the absence of an appropriate state court adjudication, make such finding of facts and determination of law as would be made by the appropriate court of the state in determining the child's rights of inheritance in an intestacy proceeding.

As referred to above, the Florida courts have held that to establish paternity after the father's death under Section 732.108(2)(b), Florida Statutes Annotated, the standard of proof should at least meet the standard that is required for proof of a secondary evidence of a lost writing. That is, the evidence of paternity should be so clear, strong and unequivocal as to remove every reasonable doubt. (See O~, supra).

Based on the evidence in the file, it is our opinion that the evidence submitted 'by the claimant is sufficient to conclude that the child is eligible for surviving child's benefits under Section 216(h)(2)(A).

Additionally, we have certain concerns regarding the judicial proceeding required under G~ and how to weigh evidence for the purpose of reaching a logical and legally supportable conclusion. We note the following. The standard established in G~ indicates that in order to satisfy prerequisite two, the decree in question must be rendered in a contested proceeding. The G~ court found that the case at bar was, "distinguishable from the cases relied upon by the Secretary . . . also involves ex parte trial court decisions .... We re-emphasize that the divorce decree . . . . was rendered in a contested proceeding". In addition, another United States District Court agreed with an administrative law judge's finding that the proceeding in question in the case then at hand was "an uncontested adversarial finding of heirship," and the court held that because the proceeding was uncontested prerequisite two of G~, supra was not satisfied. See Barbara M~ v. Harris, v. Harris, supra.

We submit that in determining if a decree was issued in a contested proceeding or not, the pleadings from the case should be reviewed. In the White opinion, supra, we stated that the paternity decree in that case was issued in an ex parte proceeding. We can not know, without the case file, if the records reflected an ex parte proceeding or a normal estate proceeding in the probate court. However, the W~ opinion was issued approximately three months prior to the promulgation of G~ as part of the Social Security Rulings. Thus, G~ was not controlling at the time of our W~ opinion. In any event, we would at least consider G~ to modify our earlier opinion with respect to ex parte proceedings.

However, we note here the apparent difficulty with which you will be faced in cases of this nature. If you decide the court order is not binding upon you, you must determine the same issue that was before the court upon the same or similar evidence. We have proceeded to the second step because we feel the same conclusion should be reached in any case. However, in cases in which you feel the state of the evidence is such that the same conclusion cannot be reached, you must examine all the evidence, including all court pleadings, to determine if the issue before the court was not contested. It would not ordinarily be adequate to find the evidence insufficient to show that the issue was contested because court judgments are entitled to be presumed regular and issued in the proper exercise of its jurisdiction. Such a presumption must prevail in the absence of actual evidence to the contrary. We would suggest that unless you have reasons to seriously question the result reached by the state court, it would be administratively more expedient to accept it.

Finally, in your memorandum to this office you felt a statement of the wage earner's mother tended to show that the Florida Court did not apply the proper standard of proof in the estate proceeding. ". . . Reginald mother, Annie, stated on January 16, 1980, that the worker did not know that Sandra was pregnant when he died. She stated that on the Tuesday before the worker died, that he and Sandra had gone to the doctor for the pregnancy tests and that the results would be back at the end of the week ....

" We suggest that even if the aforementioned statements did tend to indicate that the deceased wage earner did not positively know whether Sandra was pregnant, the statement was not relevant to the resolution of the question of whether he was in fact the father of the child. All the other evidence tends to support the conclusion that he was the father of the child. You should properly focus your attention on resolving the issues in cases of this nature by considering the evidence that bares on whether or not he was the father, and not on peripheral evidence or other unrelated issues such as his knowledge of whether Sandra was pregnant at the time of his death. Therefore, we strongly recommend that when considering and evaluating evidence, regardless of when the evidence is received during the time the case file is open, your consideration and evaluation should specifically be centered on the relevant evidence that will resolve the pertinent issue, and the said evidence should be reviewed in its entirety for consistency. If all of the evidence taken together leads to one conclusion without any significant deviation, then the evidence, as in this case, meets the standard set forth in O~ , supra.

A revised Florida entry for POMS GN 00306.135 is provided.

In your memorandum you asked our office to review the proposed language for the Florida entry for Program Operations Manual System (POMS) GN 00306.135, i.e., Legitimation and Intestacy Rights, to determine whether the proposed language accurately reflects the current Florida law.

In response to your request we have reviewed the entry and made the necessary revisions. The entry should read as follows:

The child acquires status of child if (1) the natural parents intermarry, or (2)(I) effective January 1, 1976, (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 of the child is established by an adjudication before or after the death of the father or (c) paternity is established by clear and convincing evidence,^[11] or (3)(I) effective October 1, 1977, the child is acknowledged in writing by the father. Prior to January 1, 1976, a child also acquired the status of child for purposes of inheritance if paternity was acknowledged by the father in writing signed in presence of competent witnesses.

Father acquires the status of parent if parents intermarry.

By: CARL H. H~

Regional Attorney

JOHN J~

Assistant Regional Attorney

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS — FLORIDA

The inheritance rights of an illegitimate child born in Kentucky, whose putative father died domiciled in the State of Florida is determined by the State of Florida. See opinion Re , James SSN ~ , RAIV

[J~], to Dir., Ins. Prog. Br., Atl., 4/21/83

( , Steve - SSN ~ -RAIV [J~], to Dir., Ins. Prog. Br., Atl., 5/26/83)

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS - FLORIDA

Under Florida law pursuant to Section 732.108(2)(b), oral acknowledgment by the putative father is sufficient to establish paternity. The Florida courts have held that oral acknowledgment can be used to establish paternity but the evidence must be "clear and convincing" evidence. In Re Estate of O~, 397 So.2d 428, Fla. Dist. Ct. App. (1981); In Re Estate of B~, 361 So.2d 152 (1978); and, See opinion M~, supra.

( Steve - SSN ~ - RAIV [J~], to Dir., Ins. Prog. Br., Atl., 5/26/83)

In your memorandum of December 3, 1982, you asked whether Florida would apply its laws and standards of proof or those of Kentucky, the child's birthplace, in determining the rights of the child-claimant. If Florida law is applied, you wanted to know whether an oral acknowledgment by the father would be sufficient to establish paternity.

According to the information contained in the case file, the facts are as follows:

The decedent, Steve, died domiciled in Florida on July XX, 1982. Sandra filed an application on September XX, 1982, for surviving child's benefits on behalf of her daughter, Sarah, on the record of the decedent.

The child-claimant was born in Kentucky on April. The birth certificate shows Sandra as the mother, but it does not show the identity of the father. The mother neither ceremonially married nor established a common-law marriage with the decedent. The decedent was never ordered by a court to contribute to the child's support nor was he determined by a court to be the father of the child. There is no evidence that the decedent acknowledged the child by a writing. However, there are statements in the file by Frances relationship to (number holder) unknown, and by the decedent's mother and father, Patricia and Charles , which state that the decedent orally acknowledged the child to be his.

In response to your first question of whether Florida would apply its laws and standard of proof or those of Kentucky, the child's birthplace, we addressed these issues in an earlier opinion. In the recent opinion of , James - SSN ~ , RAIV [J~], to Dir., Ins. Prog. Br., Atl., April 21, 1983, our office stated the following:

Although Florida may recognize the status created by the foreign jurisdiction, Florida would not necessarily apply the foreign law regarding the rights and incidents flowing from such status. Florida follows the principle of law which states that the rights and incidents to a status fixed in one State do not necessarily follow into another State. Gadd v. Pearson, 351 F.Supp. 895 (1972). Moreover, Florida has an interest in the orderly descent and distribution of the property of its citizens within its limits. In Re, Estate of B~, 361 So.2d 152 (1978).

Thus, Florida would apply its own law in determining the inheritance rights of the child since the father died domiciled in Florida.

You additionally wanted to know whether Florida would apply its own standards of proof or those of Kentucky. In the present case it does not matter which State's standard of proof is used since paternity can be established by oral acknowledgment in either State. See opinion Re oral acknowledgment of paternity under Kentucky law, RAIV [A~], to Dir., IPB, 9/9/82. In Florida, the legislature and the Supreme Court have both determined that paternity can be established by an oral acknowledgment. Prior to January 1, 1976, Florida law required a written acknowledgment signed by the father in the presence of a competent witness. See, Section 731.29(1), Fla. Stat. Ann. (1973). However, the Florida legislature repealed Section 731.29(1) and replaced it with Section 732.108(2). This Section provides in pertinent part:

For the purposes of intestate succession in cases not covered by subsection (1), a person born out of wedlock ... is also the lineal descendant of his father and is one of the natural kindred of all members of his father's family, if ...

(b) The paternity of the father is established by an adjudication before or after the death of the father (emphasis added).

Section 732.108(2)(b) was construed in the case of In Re, State of O~, 397 So.2d 420 Fla. Dist. Ct. App. (198'1) by the Florida Court of Appeals. This court held that paternity could be established before or after the death of the father by written acknowledgment or "by any other admissible evidence." The court did not give a definition of what constituted "other evidence" but the court did state that the standard of proof for other evidence for adjudication after death should at least meet the standard for proving of a lost writing. That is, the evidence must be "clear and convincing."

The Florida Supreme Court has also determined that written acknowledgment is not necessary to establish paternity. In Re Estate of B~, 361 So.2d 152 (1978)1^[12] , a case decided before Section 731.29(1) was repealed, the court held that Section 731.29(1) was unconstitutional because it required paternity to be established by a written acknowledgment. The court found that the children were the natural children of the decedent and declared that they could inherit from the father in absence of a written acknowledgment.

Thus it is seen that a child can establish paternity by oral or any other evidence so long as the evidence presented is "clear and convincing."

If we can be of further service, please advise. claims file is returned herewith.

The

Sincerely,

CARL H. H~

Regional Attorney

By: JOHN ~

Assistant Regional Attorney

LEGITIMACY AS AFFECTING INHERITANCE RIGHTS — FLORIDA

Where the State of Florida has not adjudicated the paternity issue to determine the child-applicant's inheritance rights, the inheritance rights of the illegitimate child-applicant must be determined by the Secretary. See, Section 216(h)(2)(A) of the Act. The Secretary in his determination shall apply Florida intestate succession law as the court of Florida would apply in determining the devolution of the intestate personal property. The Secretary is also required to use the same quantum of proof to establish paternity as would be used by the Florida State court. ( James — RA IV (J~), to Dir., Ins. Prog. Br., Atl., April 21, 1983).

In your memorandum of June 17, 1982, you asked whether Florida would apply its own laws or those of Guyana, the child's birthplace, in determining the status of the child-claimant who may have been legitimated by the intermarriage of the natural parents in Guyana.

According to the information contained in the case file, the facts are as follows:

Jeanette filed an application for surviving child's benefits on October 19, 1979, on behalf of her illegitimate son, Glen , on the record of the deceased wage earner, James . The child-claimant was born in Guyana on October. The birth certificate shows Jeanette as the mother. However, it does not show the identity of the father.

The deceased wage earner was domiciled in Guyana from 1959 to 1972. Jeanette provided evidence which indicates that she and the deceased wage earner were ceremonially married on September 20, 1969, in Guyana. The deceased wage earner and Jeanette were separated in 1972. The child and the mother remained in Guyana. The wage earner died domiciled in Florida on December 9, 1976.

Under Florida law, the law of the father's domicile determines the legitimacy of his children. Young v. Garcia, 172 So.2d 243 (Fla. Appo 1965). See, also, 4 Fla. Jur., B~B~, §5; 6 Fla. Jut., Conflict of Law, §§8 and 31; and, 10 CJS, B~, §8. Generally, Florida would look to Guyana's law in determining the status of the child since the father was domiciled in Guyana at the time of the child's birth. Florida would recognize the status created in the foreign jurisdiction under rules of comity unless such status or the rights flowing therefrom are not contemplated by or are repugnant to the laws or policy of the State of Florida. Tsilidis v. Pedakis, 132 So.2d 9 (1961).

Although Florida may recognize the status created by the foreign jurisdiction, Florida would not necessarily apply the foreign law regarding the rights and incidents flowing from such status. Florida follows the principle of law which states that the rights and incidents to a status fixed in one State do not necessarily follow into another State. Tsilidis, supra; Gadd v. Pearson, 351 F.Supp. 895 (1972). Moreover, Florida has an interest in the orderly descent and distribution of the property of its citizens within its limits. In Re, Estate of B~, 361 So.2d 152 (1978). Consequently, Florida would generally apply its own law in determining the inheritance rights of a child if the father died domiciled in Florida.

However, in the instant case, it will probably not be necessary to determine the status of the child created by the law of Guyana or the rights flowing therefrom, since Florida does not require an illegitimate child to be legitimated to inherit.

Under the Social Security Act before an illegitimate child can be entitled to surviving child's benefits, he must be deemed to be the child of the decedent and must have the right to share in the decedent's intestate personal property under the inheritance law of the State in which the decedent was domiciled at the time of his death. The illegitimate child can establish his rights to surviving child's benefits by any one of several methods.

The applicant can establish entitlement by demonstrating that the decedent was his natural father and that he is entitled to share in the decedent's intestate personal property in the State in which the decedent was domiciled at the time of death. See Section 216(h)(2)(A) of the Social Security Act. Another way the applicant can qualify for entitlement is to show that the decedent acknowledged paternity in writing, or was ordered by a court to contribute to the applicant's support or show that a court issued a paternity decree. See Section 216(h)(3)(C)(i). Finally, the applicant can establish entitlement if he presents evidence satisfactory to the Secretary showing that the decedent was the father of the applicant and was living with or contributing to the support of the applicant at the time of the decedent's death. See Section 216(h)(3)(C)(ii). In the instant case, the applicant cannot qualify for entitlement under Sections 216(h)(3)(C)(i) or 216(h)(3)(C)(ii), but may qualify for benefits under Section 216(h)(2)(A) of the Act.

The applicant cannot qualify for benefits pursuant to Section 216(h)(3)(C)(i) because the State of Florida has not issued an Order of Paternity, nor has any court required the decedent to contribute to the support of the applicant. However, there is a question of whether there was a written acknowledgment. There is an undated letter in the file, allegedly written by the decedent to the applicant's mother, in which it was stated that the decedent was sending $50 in behalf of a boy. The writing never identified the child in question by name or otherwise nor did the decedent acknowledge or identify the child as his son. It is our opinion that the writing is insufficient to qualify as a written acknowledgment because it never specifically acknowledged paternity.

The applicant cannot qualify for benefits under Section 216(h)(3)(C)(ii). Even if the child can demonstrate that he was the natural son of the decedent, the applicant cannot demonstrate that at the time of the decedent's death the decedent was living with or contributing to the support of the applicant. The file indicates that the decedent was domiciled in Guyana from 1959 to 1972 and died domiciled in Florida in 1976. The mother made an application for surviving child's benefits in 1979, approximately three years after the decedent's death. The records do not indicate that the decedent ever returned to Guyana or lived with the applicant and his mother after 1972. Furthermore, there is no evidence in the file to indicate that the decedent was contributing to the support of the applicant. The only reference to child support appeared in the undated letter which stated that the decedent was sending the applicant's mother $50 in behalf of the applicant. It is our opinion that this $50 contribution is insufficient to satisfy the support requirement.

The only provision under which the applicant can possibly be entitled to surviving child's benefits is under Section 216(h)(2)(A) of the Act. The applicant will be entitled to surviving child's benefits if he can attain the status of child and if he can demonstrate that the intestate law of the State in which the decedent was domiciled at the time of death would permit him to inherit the decedent's personal property.

The record indicates that the decedent was domiciled in Florida at the time of his death. Therefore, to satisfy Section 216(h)(2)(A), Florida intestate law must be applied. The specific provision relevant to this case is found at §732.108(2) et seq., Florida Statute Annotated (FSA), which reads as follows:

(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his mother and is one of the natural kindred of all members of the mother's family. The person is also a lineal descendant of his father and is one of the natural kindred of all members of the father's family, if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father.

(c) The paternity of the father is acknowledged in writing by the father.

Generally, the Probate Court of Florida decides the applicant's status and determines the inheritance rights of the illegitimate child pursuant to §732.108(2) et seq. The Secretary generally accepts the finding of the State court regarding the child's status and the inheritance rights although the State's determination is not binding on the Secretary.

However, in the present case, there has not been a State adjudication on paternity for the purpose of establishing inheritance rights. In such a case the Secretary must make an independent determination on the issue of paternity and inheritance rights of the illegitimate child. Section 216(h)(2)(A) in pertinent part provides as follows:

"The Secretary shall apply such law as would be applied in determining the devolution of intestate personal property ... by the court of the State in which the insured individual was domiciled at the time of his death .... Applicants who according to such law would have the same status relative to taking intestate personal property as a child ... shall be deemed such."

Thus, it is seen that Section 216(h)(2)(A) requires the Secretary to determine and apply such law as would be applied by the court of the appropriate State in determining the devolution of the intestate property of the insured under the inheritance law of the State in which the decedent was domiciled at the time of his death. Taylor v. Richardson, 354 F.Supp. 13, 16 (M.D. La. 1973), aff'd. sub nom; Taylor v. Weinberger, 489 F.2d 1311 (5th Cir. 1974); and also, see, opinion Re James H~, deceased wage earner, GC [Siegal] to OHA, 6/12/79, (application of Delaware intestacy law under Section 216(h)(2)(A)) of the Act. This Section does not require a previous determination by a State court. The Secretary has the duty to determine what the courts of the State would do if an action was properly brought in the appropriate State court. The Secretary is also required to use the same quantum of proof to establish paternity as would be used by the State court. T~, supra, and Re Jame H~, supra.

Thus, the Secretary must, in absence of an appropriate State court adjudication, make such finding of fact and determination of law as would be made by the appropriate court of the State in determining the child's right of inheritance in an intestacy proceeding.

In order for this applicant to be entitled to benefits he must satisfy at least one element as set forth in §732.108(2) et seq.

§732.108(2)(a) requires the applicant to offer evidence which shows that his natural parent participated in a ceremonial marriage .... In the present case, there is evidence in the file which indicates that the decedent and the mother of the illegitimate child entered into a ceremonial marriage on September XX, 1969, in Guyana. It is our opinion that the marriage will satisfy §732.108(2)(a) although it was performed in another

country. Therefore, the child applicant has met the State statutory requirement for establishing paternity and he should be entitled to benefits pursuant to Section 216(h)(2)(A) of the Social Security Act.

If the Secretary determines that the applicant has not satisfied §732.108(2)(a) then the applicant must be given the opportunity to establish paternity pursuant to §732.108(2)(b). Florida courts have held that to establish paternity after the father's death under §732.108(2)(b) et seq. that the standard of proof should at least meet the standard that is required for proof of a secondary evidence of a lost writing. That is, the evidence of paternity should be so clear, strong and unequivocal as to remove every reasonable doubt. See In Re Estate of O~, 397 So.2d 420 Fla. Dist. Ct. App. (1981).

However, if the Secretary finds that the child applicant has failed to establish paternity pursuant to the above stated provisions, then the applicant must be given the opportunity to satisfy §732.108(2)(c). This provision allows the applicant to establish paternity by a written acknowledgment by the father. The writing should identify the child in question by name or otherwise, and should acknowledge and identify the child as the decedent's offspring. In Re Estate of O~, supra and Re James T. Haley, supra.

Based on the foregoing discussion and evidence, it is our opinion that you would be warranted in concluding that the child is eligible for surviving child's benefits under Section 216(h)(2)(A). The ceremonial marriage between the decedent and the illegitimate child's mother appears to satisfy §732.108(2)(a) of the Florida intestacy statute. However, if you determine that the applicant has not satisfied §732.108(2)(a) then the applicant should be given a hearing pursuant to §732.108(2)(b). If you determine that the applicant has failed to satisfy this State provision as well, then you must give the applicant the opportunity to establish paternity by a written acknowledgment.

If we can be of further service, please advise. The claims file is returned herewith.

Sincerely,

CARL H. H~

Regional Attorney

JOHN J~

Assistant Regional Attorney

PARENT AND CHILD — COURT DECREE OF PATERNITY — FLORIDA

Under Florida law, where a court of competent jurisdiction (Probate Court), in an order determining heir's rights, decreed an illegitimate child to be the natural son and heir of the deceased wage earner, thereby enabling the child to share in the deceased wage earner's personal property, we found that such an order created inheritance intestate rights within the meaning of Section 216(h)(2)(A) of the Social Security Act.

(Samuel - SSN ~ - RAIV [J~], to Dir., Ins. Prog. Br., Atl., 4/5/83.)

In your memorandum of July 7, 1982, you asked whether the State Probate Court order which declared Rickey to be the natural son and heir of the deceased wage earner (Samuel) would be sufficient to constitute a finding of paternity so as to qualify the child for benefits under the Social Security Act.

In addition, you asked whether the Social Security Administration would be bound by the State court decree or could the Social Security Administration make an independent decision on paternity.

According to the information contained in the case file, the facts are as follows:

Mary filed an application for surviving child's benefits on December XX, 1981, on behalf of her illegitimate son, Rickey, on the record of the deceased wage earner (Samuel). The mother neither ceremonially married nor established a common-law marriage with the wage earner. There is no evidence that the deceased wage earner acknowledged the child in writing. The wage earner died on March XX, 1967, domiciled in Florida.

Rickey was born on October. His birth certificate shows Mary as the mother and Tom, as the father. However, Tom has since declared that he is not the natural father of Rickey. According to both Tom and Mary, she was six months pregnant with Rickey when they met. Tom and Mary were ceremonially married on February XX, 1969.

In an ex parte proceeding, the Florida Circuit Court of the Eighth Judicial Circuit, Probate Division, dated November XX, 1981, decreed the following: (1) that Rickey was the natural son and heir of Samuel , the deceased wage earner; (2) that the court specifically has not ruled on the question of other heirs of Samuel and no other matter was presented before the court; and, (3) no common-law marriage existed between Samuel and Mary.

The question before us is whether under Florida law an order determining the heirs of a deceased wage earner is sufficient to establish the inheritance rights of an illegitimate child after the death of the wage earner, so as to qualify the child for benefits under the Social Security Act.

In order to resolve the question of the inheritance rights of an illegitimate child, both Federal and State law must be considered. The effect given the Federal law is dependent upon the interpretation of the State law.

The Federal law applicable to the present case is found at Section 216(h)(2)(A) of the Social Security Act. Section 216(h)(2)(A) provides in pertinent part as follows:

In determining whether an applicant is a child or parent of a fully or currently insured individual for the purpose of this Title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death .... Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

Since the wage earner was domiciled in Florida at the time of his death, the laws of that State are applicable. Although the court did not indicate which State statute it used in the issuance of the decree, we presume that the order was issued pursuant to Florida Statute Annotated (FSA), Chapter 732. (Florida Probate Code - intestate succession and wills.) We specifically believe that the court issued the order pursuant to Section 732.108(2)(b) which defines the rights of persons born out of wedlock. Section 732.108(2)(b) provides in pertinent part as follows:

(2) For the purpose of intestate succession in a case not covered by subsection (1) a person born out of wedlock is a lineal descendant of his mother and is one of the natural kindred members of the mother's family. The person is also a lineal descendant of his father and is one of the natural kindred of all members of the father's family if:

(b) the paternity of the father is established by an adjudication before or after the death of the father.

The application of Section 732.108(2)(b) was construed in the case of In Re Estate of O~, 397 So.2d 420 (1981). Reversing the Circuit Court, the Florida Court of Appeals held that Section 732.108(2)(b) provided for an adjudication of paternity after the father's death.

Although the court in the present case did not explicitly call the decree an Order of Paternity, given the breadth of Section 732.108(2)(b), it is our opinion that the order is equivalent to an Order of Paternity. Rickey was adjudicated by the Florida Probate Court to be the natural son and heir of Samuel , the deceased wage earner. We deem such determination to be sufficient to satisfy Section 216(h)(2)(A) of the Social Security Act which requires the applicant to be deemed to be the child of the wage earner, thereby enabling the child-applicant to share in the wage earner's personal property under the inheritance laws of the State in which the wage earner was domiciled at the time of the wage earner's death.

In addition, you wanted to know if the administration is bound by the State Probate Court order or if the administration has the authority to make an independent determination with regard to paternity. The foregoing discussion is dispositive of the paternity issue, consequently, it is not necessary to address this second issue.

It is our opinion that you would be warranted in concluding that the decree issued by the Probate Court established the inheritance rights of the illegitimate child claimant, thereby qualifying the child for all benefits under Section 216(h)(2)(A) of the Social Security Act.

INHERITANCE RIGHTS—In General—FLORIDA

In Florida, a child may be judicially determined to be an heir of a deceased irrespective of whether the estate of the deceased is administered or if administered whether the administration of the estate has been closed or the personal representative discharged. In Re: Estate of O~, 397 So.2d 420 (Fla. App. 1981).

( Thomas, for Derrick , RA IV (W~) to Dir. IPB, 7/20/82)

In your memorandum dated May 5, 1981, you asked whether the subject child's inheritance rights under Florida law became effective on the date of the court's paternity order (December XX, 1980) or if such rights were retroactive to the date of the child's birth (July XX, 1979). Subsequently, you have advised that this claim has been erroneously denied and the child has been awarded benefits with an entitlement date of April 1980. You have also advised that the specific purpose for this opinion referral is to determine in light of POMS 00306.100 if this child is entitled to benefits for the six months prior to the date of filing his application in April 1980.

The child applicant, Derrick , was born to Hazel on July. At the time of the applicant's birth, his mother was married to Man and had been so married since June XX, 1977. The applicant's mother and Man separated about one year before the applicant was born but were apparently still married as of May 5, 1981. The applicant's birth certificate reflects Man as the applicant's father.

The applicant filed his first application for child's benefits on April XX, 1980 claiming to be the son of Thomas. Thomas was receiving old age benefits at that time and had been entitled thereto since July 1977. Thomas was domiciled in Florida at the time he filed his application for old age benefits. Although the applicant's mother admits dating Thomas during her separation from her husband, the applicant's mother and Thomas did not marry one another. However, Thomas acknowledged in a written statement to the Social Security Administration dated April 28, 1980 that he was the natural father of the applicant. The applicant's claim was subsequently denied on June 6, 1980 because the applicant had not established that he was the child of Thomas.

Following this denial, Thomas was adjudged to be the natural father of Derrick in a paternity and support action brought by the child's mother and the Florida Department of Health and Rehabilitative Services. The Court order directed Thomas to pay $80. per month as support for the child and further directed the child's birth certificate to be changed to reflect Thomas as the child's natural father. According to this final judgment of paternity dated December 18, 1980, Thomas acknowledged to the court that he was the child's natural father. On March 2, 1981, a second application for child's benefits was filed on behalf of the child, Derrick, seeking benefits on the earnings record of Thomas. This application was filed on the child's behalf by Thomas .

As mentioned earlier herein, the child has been awarded child's benefits based upon his application and the insured's written acknowledgment both dated April 1980. The child's entitlement date has been determined to be April 1980. The retroactive life of applications filed on or after March 1, 1981 is limited to six months. CM A2047. Benefits for the six month period prior to the April 1980 filing date were not awarded due to the language of POMS 00306.100 according to your memorandum. However, entitlement was based upon the child's first application dated April 1980 rather than his second application dated March 2, 1981. Retroactive entitlement would not be governed by CM A2047 which provides for a six month retroactive life of applications filed after March 1, 1981. Therefore, if the child is entitled to retroactive payments at all, he is entitled to 12 months rather than six months of such retroactive payments. CM 2047.

POMS GN 00306.100 provides as follows:

A WE's illegitimate child, even if not legitimated, may have the status of a "child" under the Acts if recognized or acknowledged under applicable State law for the purpose of inheriting intestate personal property. Provisions concerning inheritance rights but not legitimating the child are preceded by an "I" in the State law entries in GN 00306.135 .... In these cases, an act of recognition or acknowledgment generally will be given effect only from the date of such act ....

According to Office of General Counsel, Baltimore, the language "In these cases, an act of recognition or acknowledgment generally will be given effect only from the date of such act" was intended to limit a child's benefits to an acknowledged illegitimate child who had acquired the status of an heir under the applicable state law as a result of the written acknowledgment to a period of time from the date of the acknowledgment forward. The purpose of this POMS provision is to limit a child's entitlement to the period in which the child is considered an heir under the applicable state law. According to OGC, Baltimore, most states recognize such a child's status as an heir only from the date of the acknowledgment forward. The language of POMS 00306.100 was designed to reflect the majority position but would not be applicable where a child's status as an heir following acknowledgment is recognized for any period of time prior to the date of the acknowledgment.

For purposes of intestate succession in Florida, a child born out of wedlock is a lineal descendant of his mother and is one of the natural kindred of all members of her family. Further, a child is also a lineal descendant of his father and is one of the natural kindred of all members of the father's family provided the paternity of the father is established by an adjudication before or after the death of the father or provided paternity is acknowledged in writing by the father. Fla. Stat. Ann. § 732.108(2). A Florida court has the authority to determine an heir of a deceased irrespective of whether the estate of the deceased is administered or if administered, whether the administration of the estate has been closed or the personal representative discharged. Fla. Stat. Ann. § 733.105 (3). In Re: Estate of O~, 397 So.2d 420 (Fla. App. 1981). Therefore, it is the opinion of this office that a child acknowledged in writing in Florida has the status of an heir prior to as well as following the acknowledgment. Where the acknowledgment of a child has such consequences under state law, a child's benefit would not be limited to that period subsequent to the acknowledgment.

In the present case, both the first application and the written acknowledgment upon which the award was ultimately based were made in April 1980. The acknowledgment under Florida law, however, gave the child the status as an heir of the insured for that period of time prior to the acknowledgment. In Re: Estate of O~, supra. Therefore, it is the opinion of this office based upon the construction of POMS 00306.100 provided by the Office of General Counsel, the effect of an acknowledgment under Florida's inheritance law, and the retro- active life of an application filed in April 1980, the child in the present case is entitled to child's benefits for twelve months prior to April 1980 date of his application.