TN 15 (08-10)

PR 01120.035 New York

A. PR 10-096 Jonathan D. C~ - Posthumous Kinship Order - Status of Child Applying for Survivor Benefits on the Account of Number Holder Jonathan C~ - NY Law

May 10, 2010

1. SYLLABUS

Under New York intestacy law, a Family Court issued Order of Filiation finding that the NH was the claimant's father only permits a non-marital child to inherit from the estate if the order was issued during the father’s lifetime. In this case, however, the Surrogate Court issued a posthumous Kinship Order directing that the claimant was entitled to inherit. The order meets all prerequisites and SSA is bound by that decision.

Under current New York law, a child legitimated after birth is considered to be legitimate from birth. Accordingly, the claimant is considered to have a parent-child relationship with the deceased number holder since September 7, 2009, the child’s date of birth.

2. OPINION

QUESTION PRESENTED

Whether Jonathan D. C~ (the claimant), who was born after the death of number holder Jonathan C~ (NH), is entitled to survivor's benefits as the child of the NH. If so, what is the effective date of paternity/legitimation?

OPINION

The claimant is entitled to survivor's benefits on the NH's account based on a posthumous Kinship Order which found that the child was entitled to inherit from the NH's estate under New York law. The order meets all four prerequisites of Social Security Ruling (SSR) 83-37c and thus, SSA is required to accept the state court's adjudication. The effective date of legitimation is September 7, 2009, the child's date of birth.

BACKGROUND1

The NH died August 24, 2009, in Buffalo, NY. At the time of his death, the NH was engaged to Ingrid P~. Ms. P~ resided in Burlington, Ontario, Canada. On September 7, 2009, Ms. P~ gave birth to the claimant in Hamilton, Ontario. The claimant's birth certificate listed the NH as his father.

At the time of his death, NH had another child, Joanna L. C~ C~. Her mother is Mercedes C~.

Ms. P~ filed a paternity petition in New York State Family Court, Erie County. On November 24, 2009, the Family Court issued an order directing that DNA testing, using a preserved sample from the NH, be done to determine the NH's paternity. DNA results showed a 99.99% probability that the NH was the claimant's father. On December 15, 2009, the Family Court issued an Order of Filiation finding that the NH was the claimant's father.

Because the Family Court issued its filiation order months after NH's death, and New York intestacy laws provide that a non-marital child can inherit from his father only if the filiation order was made during the father's lifetime, Ms. P~ appeared at an evidentiary hearing on February 1, 2010, before New York State Surrogate's Court (Surrogate's Court) to determine the NH's paternity and the claimant's inheritance rights from NH's estate. N.Y. Est. Powers & Trusts Law (EPTL) §§ 4-1.2(a)(2)(A); 4-1.2(a)(2)(C). The following made appearances in the matter: an attorney for the Erie County Public Administrator; an attorney for Ms. P~, an attorney for Ms. C~, the Guardian ad Litem for Joanna, and the Guardian ad Litem for the claimant. The Surrogate's Court found that the DNA test results clearly and convincingly established that the NH was the claimant's father. Based on testimony from a former colleague of the NH that the NH was "very excited" about his expected child, the Court further found that the NH had openly and notoriously acknowledged the claimant as his child well before the claimant was born. On February 2, 2010, the Surrogate's Court issued a Kinship Order declaring that NH was the claimant's father and that the claimant was entitled to inherit from NH's estate.

On December 22, 2009, Ingrid P~ filed an application for child benefits on behalf of the claimant. The NH's other child, Joanna, is currently being paid Social Security Survivor Benefits on the NH's record. In the claim for Joanna, her mother - Ms. C~ - mentioned that the NH had had a pregnant girlfriend at the time he died.

ANALYSIS

A. Kinship Order and Memorandum

SSA is bound by the Kinship Order and Memorandum holding that the NH is the father of the claimant and that the claimant is entitled as his son to inherit from the NH's estate pursuant to EPTL § 4-1.2(a)(2)(C). Pursuant to SSR 83-37c, although the Commissioner is not bound by the decision of a state trial court in a proceeding to which he was not a party, he is not free to ignore an adjudication of a state trial court where the following prerequisites have been found:

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. SSR 83-37c, adopting the holding of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973).

Here, the Kinship Order meets all four prerequisites. Regarding prerequisite one, the judgment was issued by the Erie County Surrogate's Court, a State court of competent jurisdiction. The judgment satisfies the second prerequisite because it was contested before the state court by parties with opposing interests. Specifically, the attorney for Ms. C~, and the Guardian ad Litem for Joanna appeared during the proceedings and had interests that diverged from the interests of Ms. P~ and the claimant. Regarding prerequisite three, the issue of paternity falls within the general category of domestic relations law.

Finally, regarding prerequisite four, non-marital children may inherit from their father when "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own. EPTL § 4-1.2 (a)(2)(C). With respect to this section of the law, New York courts have generally allowed posthumous DNA testing to serve as "clear and convincing evidence." 2 As one court explained:

There is no basis in law or logic to exclude the results of posthumously conducted DNA tests on a decedent's genetic material from the category of "clear and convincing" evidence under EPTL § 4-1.2 (a)(2)(C). This is particularly true where the material is available without the drastic remedy of exhumation, comes from a reliable source, and is amenable to accurate testing. To hold otherwise would ignore the precision that DNA testing contributes to the paternity issue.

In re Estate of Bonanno, 745 N.Y.S.2d 813, 815 (N.Y. Surr. Ct. 2002) (citations omitted); see also In re Poldrugovaz, 851 N.Y.S.2d 254, 260-61 (App. Div. 2d Dept. 2008) (discussing evolution of judicial interpretation of EPTL 4-1.2 (a)(2) and describing cases that allowed use of posthumous genetic marker testing as clear and convincing proof of paternity).

Open and notorious acknowledgment is established when the putative father openly acknowledged the child in his community. See In Re Poldrugovaz, 851 N.Y.S.2d at 264; see also Tumminia v. Savattere, 654 N.Y.S.2d 676_(N.Y. 2d Dept. 1997) (disclosure to friends and relatives); Matter of Anne R. v. Estate of Francis C., 651 N.Y.S.2d 539 (N.Y. 2d Dept. 1996) (case decided pursuant to open and notorious requirement for establishing paternity under Family Court Act; acknowledgment of paternity in the community in which the child lives); Matter of Wilkins, 691 N.Y.S.2d 878_(Sur. Ct., N.Y. County 1999) (disclosure to family); cf. Matter of Gentile, 2002 WL 377024 (Sur. Ct., N.Y. County 2002) (statement made in confidence to spouse and one friend did not constitute open and notorious acknowledgement).

The open and notorious prong of the intestacy statute is a factual one. Examples of open and notorious acknowledgements have included the putative father's acknowledgement that he was the father of his girlfriend's unborn child to his mother, sister, grandmother, and the girlfriend's aunt. In re Estate of Thayer, 769 N.Y.S.2d 863, 865 (N.Y.Sur. 2003).

Here, the Kinship Order, which noted that posthumous DNA testing provided clear and convincing evidence of the NH's paternity and that the testimony of a witness satisfactorily established that the NH openly and notoriously acknowledged the claimant as his unborn child, is consistent with New York statutory and case law. Accordingly, SSA may not ignore the Kinship Order declaring that NH was the claimant's father and that the claimant was entitled to inherit from NH's estate. SSR 83-37c.

B. Effective Date of Legitimation

Under current New York law, a child legitimated after birth is considered to be legitimate from birth. POMS GN 00306.050; GN 00306.085.3 Further, a non-marital child is the legitimate child of his father so that he and his issue inherit from his father if paternity has been established by clear and convincing evidence and the father has openly and notoriously acknowledged the child as his own. EPTL§ 4-1.2(a)(2)(C); but see POMS GN 00306.575 (noting that EPTL § 4-1.2 only confers inheritance rights, not legitimacy). Therefore, in this case, because paternity has been established by clear and convincing evidence and the father openly and notoriously acknowledged the child as his own, the claimant is the legitimate child of his father and the effective date of legitimation is September 7, 2009, the claimant's date of birth. EPTL 4-1.2(a)(2)(C); POMS GN 00306.050; GN 00306.085.

3 We believe that POMS GN 00306.575 is incorrect, in that New York law clearly states that legitimacy is conferred by meeting any of the requirements of EPTL §4-1.2. We will submit a proposed POMS revision to this effect. \

CONCLUSION

Based on the foregoing, an adjudicator could find that the claimant is entitled to survivor benefits on the NH's account because he can inherit personal property from him under New York intestacy law. The effective date on which the claimant could inherit from NH is September 7, 2009.

Stephen P. C~
Regional Chief Counsel
By: ______________
Joanne J~
Assistant Regional Counsel


Footnotes:

[1]

CPS provided us with the following: an Order of Filiation from New York State Family Court, Erie County, dated December 15, 2009 and a Kinship Order and Memorandum from Surrogate's Court of the State of New York, Erie County, signed February 2, 2010. Other facts are derived from e-mail correspondence between CPS and the Office of the General Counsel. This opinion is based on the facts as presented.

[2]

Effective to estates of decedents dying on or after April 28, 2010, New York amended EPTL § 4-1.2(a)(2)(C) to make clear that clear and convincing evidence includes evidence derived from a genetic marker test. 2010 N.Y. Sess. Laws Ch. 64 (A. 7899-A).

[3]

We believe that POMS GN 00306.575 is incorrect, in that New York law clearly states that legitimacy is conferred by meeting any of the requirements of EPTL §4-1.2. We will submit a proposed POMS revision to this effect.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501120035
PR 01120.035 - New York - 08/16/2010
Batch run: 08/16/2010
Rev:08/16/2010