Date: October 26, 2018

SYLLABUS

The Virgin Islands inheritance statute does not provide for posthumous determinations of paternity. Therefore, we must apply the standard of proof that Virgin Islands courts would use for a determination of paternity under the Territory’s paternity statute.

In this case, the Superior Court of the Virgin Islands considered evidence including: (1) a certificate of death from St. Thomas, U.S. Virgin Islands for the NH; (2) certifications of birth of the claimant and her sister, both from the U.S. Virgin Islands Department of Health; and (3) DNA results of siblingship administered in St. Thomas, U.S. Virgin Islands. The Court found that the DNA test results established siblingship and paternity by 99.9%, and that proof of paternity was established pursuant to the Virgin Islands Code. The Court concluded that the claimant shall be entitled to all rights and privileges as the child of the NH and ordered that a new birth certificate be issued listing the NH as the claimant’s father. Therefore, the claimant is the NH’s child under the Social Security Act because paternity can be established under Virgin Islands law.

QUESTION PRESENTED

Whether T~ (the claimant), the biological child of L~ (L~), is entitled to Social Security benefits as the child of T2~, the number holder (NH).

OPINION

The claimant is the NH’s child under the Social Security Act (Act) because paternity can be established under Virgin Islands law.

BACKGROUND

The NH died on November XX, 1997, in St. Thomas, Virgin Islands. At the time of his death, he was in a relationship with L~, the claimant’s mother. The claimant was born two days later on November XX, 1997.

On December XX, 1997, L~ filed an application for Survivor Child’s benefits on behalf of the claimant on NH’s record. The claim was denied at the initial and reconsideration level in 1998 and the claim was also denied at the hearing level on February XX, 2002, due to insufficient evidence to establish the relationship between the child and the NH.

On January XX, 2015, L~ filed a new application on behalf of the claimant on the NH’s record. She submitted as new evidence DNA tests comparing the claimant’s DNA with that of her sister, T3~, born December XX, 1994, which shows that there is 99.9% probability that they are full siblings.

T3~ collected Surviving Child’s benefits on the record of the NH until she turned age 18 in December 2011. Surviving Child’s benefits were awarded to T3~ in November 1997, based on the fact that the NH signed a hospital form acknowledging himself as the biological father.

ANALYSIS

A. Federal Law

To qualify for child’s benefits under the Act, an applicant must be the “child” of the insured individual (i.e., NH). A “child” is defined as the natural child, legally adopted child, stepchild, or in limited circumstances, grandchild or step grandchild of an insured individual.^[1] Act §§ 202(d), 216(e); 42 U.S.C. §§ 402(d), 416(e). Here, because the claimant does not meet the definition of a “child,” pursuant to the Act, an analysis must be conducted whether the claimant can still be deemed the surviving child of the NH.

First, the Act provides that in determining whether a claimant will be deemed the surviving child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property under the laws of the State in which the insured wage earner was domiciled at the time of his death. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), 404.355(b), POMS GN 00306.001. Because NH was domiciled in the Virgin Islands at the time of his death, Virgin Islands’ law regarding the devolution of intestate personal property applies.

Second, the Act permits a claimant to be deemed the child of an insured person if the insured person and the mother or father of the child, as the case may be, participated in a marriage ceremony resulting in a purported marriage which, but for a legal impediment, would have been a valid marriage.^[2] Act § 216(h)(2)(B); 42 U.S.C. § 416(h)(2)(B).

Lastly, the Act provides that a claimant will be deemed the child of a fully insured individual, if, in the case of a deceased individual, such insured individual had: (1) acknowledged in writing that the applicant is his son or daughter; (2) been decreed by a court to be the father of the applicant; or (3) been ordered by a court to contribute to support of the applicant because the applicant was his daughter. Act § 216(h)(3)(C)(i); 42 U.S.C. § 416(h)(3)(C)(i). This section further states that the acknowledgment, court decree, or court order must have been made before the death of the wage earner. Id. Under subsection (3)(C), the claimant may also be deemed the child of an insured person if “such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.” Act § 216(h)(3)(C)(ii); 42 U.S.C. § 416(h)(3)(C)(ii).

B. State Law

1. Intestacy Law

The intestacy law of the Virgin Islands provides that:

[a]n illegitimate child shall be considered to have the same status, for purposes of descent and distribution of the property of his or her ancestor…provided that the [father] admitted of record paternity of such child by signing the birth certificate; or he was adjudged the father of such child by a court of competent jurisdiction; or by written acknowledgement recognized such child as his.

15 V.I. § 84(13). The intestacy statute thus does not provide for posthumous findings of paternity absent a finding that at least one of the stated actions occurred during his lifetime See Isaac v. Crichlow, 63 V.I. 38, 2015 V.I. LEXIS 15 (V.I. Super. Ct. 2015) (Based on her birth certificate and a letter in which the decedent acknowledged plaintiff as his daughter, plaintiff had established that she was the decedent’s illegitimate daughter and entitled to an equitable interest in his estate).

The Program Operations Manual System (POMS) acknowledges this fact.^[3] Pursuant to subsection 4 of POMS GN 00306.655, Virgin Islands Intestacy Laws, where the father dies after August 3, 1957, adjudication of paternity for the purpose of inheritance must have occurred in his lifetime. However, the Commissioner’s regulations provide as follows:

We will not apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the worker’s death or the child’s birth, or that an action to establish paternity must have been started or completed before the worker’s death.

20 C.F.R. § 404.355(b)(2). The regulations go on to state that, in cases where state inheritance laws require that paternity be established within a specified period of time, the Commissioner will decide paternity by using the standard of proof that the state courts would use as the basis for a determination of paternity. Id. As such, for claims filed on or after November 27, 1998, or pending on that date, the Virgin Islands Intestacy Laws POMS provision states that SSA will determine the relationship between the alleged father and the child during the alleged father's lifetime and after his death by applying a preponderance of the evidence standard. POMS GN 00306.655.^[4] Thus, because the Virgin Islands inheritance statute does not provide for posthumous determinations of paternity, we must apply the standard of proof that Virgin Islands courts would use for a determination of paternity under the Territory’s paternity statute. See Isaac v. Crichlow, 63 V.I. at 52 (court looks to the Virgin Islands statute governing acknowledgement of paternity to determine if evidence used to establish claim of paternity is sufficient, citing, Section 295 of Title 16 of the Virgin Islands Codes).

2. Paternity Law

The Virgin Islands Code provides that paternity may be established (1) voluntarily by signed Acknowledgment of Paternity; (2) by Court or administrative paternity establishment; or (3) through marriage of the child’s parents. See 16 V.I. §§ 291-296.

As relevant here, according to the Virgin Islands paternity statute, paternity can be established by a court order where the parties consent, per 16 V.I. § 293(e), or where the issue is contested, and the court orders a blood, genetic, or DNA test, per 16 V.I. § 293(f). A test result showing a statistical probability of paternity of 99% or higher shall constitute a conclusive presumption of paternity. 16 V.I. § 293(g).^[5]

As noted above, to establish paternity, Virgin Islands courts generally apply the preponderance of the evidence standard. See, e.g., Hyman v. Prince, 9 V.I. 47 (1971) (holding that the unsupported testimony of the mother, if believed, satisfies the applicable proof of paternity by a preponderance of the evidence); Government of Virgin Islands, ex rel C.C. v. A.P., 1995 WL 914523 *3, vacated on other grounds by, 961 F. Supp. 122 (1997) (“…all that is required to establish paternity is sufficient evidence to convince the fact finder that the person accused is indeed the father”). Courts in the Virgin Islands consider a number of factors in determining whether paternity may be established after the death of the putative father. Some of the things that the Virgin Islands courts consider are the testimony of the mother, the fact that the couple was together at the time of conception, the number of people the father told about his unborn child, and blood test results. See, Application of Baby Girl Lake, 1995 WL 789028 *3 (V.I. 1995) (stating in dicta that, even if posthumous adjudications of paternity could be made, paternity could not be established where the putative father merely told one person that his girlfriend was pregnant); see also, Government of Virgin Islands, ex rel C.C. v. A.P., 1995 WL 914523 *3 (V.I. 1995) (noting that Human Leukocyte Antigen blood testing was not conclusive evidence of paternity, but could be considered by the fact-finder).

3. A Virgin Islands Court Found Proof of Paternity

In this case, Judge D~ at the Superior Court of the Virgin Islands considered evidence including: (1) a certificate of death from St. Thomas, U.S. Virgin Islands for T2~ Jr., the putative father of T~; (2) certifications of birth of T~, D.O.B. November XX, 1997 and her sister, T3~ D.O.B. December XX, 1993, both from the U.S. Virgin Islands Department of Health; and (3) DNA results of siblingship administered in St. Thomas, U.S. Virgin Islands. The Court found that the DNA test results established siblingship and paternity by 99.9%, and that proof of paternity was established pursuant to Title 16 § 293(g) and § 295(a) of the Virgin Islands Code. The Court concluded that T~ shall be entitled to all rights and privileges as the child of T2~ and ordered that a new birth certificate be issued listing T~’s father as T2~.

In sum, the evidence in its entirety demonstrates that the claimant is NH’s child.

CONCLUSION

Based upon our review of Virgin Islands law, the facts you provided to us, and J~’s decision that T2~ is T~’s father, we accordingly conclude that, if all other requirements are satisfied, we believe the agency can find the claimant is entitled to child’s insurance benefits on the NH’s account.