PR: Title II Regional Chief Counsel Precedents

Effective Dates: 04/08/2013 - Present

TN 15 (04-13)

A. PR 13-051 Presumption of Legitimacy and Use of Sibling DNA Testing to Rebut the Presumption and Establish Paternity – Georgia Claimant – Phalisa Number Holder – Jacob

DATE: March 1, 2013

1. SYLLABUS

Under Georgia intestacy law, a decedent’s children are entitled to a share of the decedent’s estate. However, a child born out of wedlock must produce evidence that both rebuts the presumption of legitimacy and satisfy additional evidentiary requirements to inherit from his or her father. In this case, we conclude that in an intestacy matter, a Georgia court would find the DNA test results and the court order the Claimant produced constitute the clear and convincing evidence necessary to rebut the presumption of legitimacy. The claimant is NH’s child for determining Claimant’s eligibility for DAC benefits on NH’s earning record and the effective date of a finding that Claimant is NH’s child would be August 9, 2012, the date of the DNA test results.

2. OPINION

QUESTION

In a case governed by Georgia law, you asked whether the claimant, who likely was born during a marriage between her mother and her mother’s husband, is the child of the deceased number holder for determining the claimant’s eligibility for disabled adult child (DAC) benefits on the number holder’s earnings record based on Deoxyribonucleic Acid (DNA) testing of the claimant, the claimant’s mother, and a child of the number holder. You also asked whether the DNA test results rebut the presumption of legitimacy and what the effective date of the claimant’s entitlement would be if the DNA test results establish the claimant is the number holder’s child.

OPINION

The DNA test results and other evidence in this matter rebut any presumption that the claimant is the child of her mother’s husband and establish the claimant is the number holder’s child under Georgia intestacy law. Consequently, a Social Security Administration (SSA) adjudicator could find the claimant is the number holder’s child for determining the claimant’s eligibility for DAC benefits on the number holder’s earnings record effective August 9, 2012, the date of the DNA test. .

BACKGROUND

According to the information provided, Phalisa (Claimant) initially applied for DAC benefits on the earnings record of Jacob , the number holder (NH), in July 2008. SSA denied Claimant’s July 2008 application because Claimant did not provide proof that she was NH’s child. Claimant filed a second application for DAC benefits on NH’s earning record in August 2012. With the second application, Claimant submitted the results of DNA testing notarized and signed by an officer of a genetic testing facility. The facility’s laboratory director stated the facility performed a siblingship interpretation using DNA samples from Claimant, Claimant’s mother, and NH’s son, Marc (C1). The DNA test results indicated a 99.999998% probability Claimant and C1 are full siblings, meaning they share the same biological mother and father. SSA currently recognizes C1 as NH’s child, and C1 receives Social Security benefits on NH’s earnings record.

Claimant also submitted copies of her birth certificate, C1’s birth certificate, a Georgia Superior Court consent agreement and order (court order), and NH’s death certificate. The birth certificates indicate Claimant and C1 share the same mother. However, Claimant’s birth certificate indicates that her father is Albert , to whom Claimant’s mother was likely married when Claimant was born. C1’s birth certificate does not identify his father. The court order demonstrates NH acknowledged and recognized C1 as his son and that the court ordered NH to pay child support for C1. NH’s death certificate indicates he died on June 3, 2008, while domiciled in Georgia. The facts as presented do not indicate NH married Claimant’s mother.

DISCUSSION

Under section 202(d) of the Social Security Act (Act), a claimant over age eighteen may be eligible for DAC benefits on the earnings record of an individual who dies fully or currently insured if the claimant is the “child” of the deceased individual. See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1), (a)(5) (2012). All subsequent references to 20 C.F.R. are to the 2012 edition unless otherwise noted.

“Child” includes “the child” of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may qualify as “the child” of an insured individual under section 216(e)(1) of the Act if he or she could inherit the insured individual’s 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 such insured individual . . . was domiciled at the time of his death . . . .” Act § 216(h)(2)(A); see 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); C~, 132 S. Ct at 2028-34; Program Operations Manual System (POMS) GN 00306.001(C)(1)(a), (C)(2)(a). NH’s death certificate indicates he was domiciled in Georgia when he died. Therefore, we look to Georgia intestacy law to determine if Claimant is NH’s child. If a claimant is the son or daughter of an insured individual but cannot show he or she is “the child” under section 216(h)(2)(A) of the Act, he or she may be deemed “the child” of the insured individual if the insured and the other parent went through a marriage ceremony that would have been valid but for certain legal impediments. See Act § 216(h)(2)(B); 20 C.F.R. § 404.355(a)(2); C~, 132 S. Ct at 2028; POMS GN 00306.090(A)(1). The evidence in this case does not indicate NH and Claimant’s mother went through a marriage ceremony. Therefore, Claimant cannot be deemed NH’s child under section 216(h)(2)(B) of the Act. A claimant who is the son or daughter of a deceased insured individual but is not “the child” of the individual under section 216(h)(2) of the Act may establish he or she is “the child” of the individual through section 216(h)(3) of the Act. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); C~, 132 S. Ct. at 2028; POMS GN 00306.001(C)(1)(b). Under section 216(h)(3) of the Act, a claimant is deemed “the child” of a deceased individual if he or she can produce one of four alternative types of evidence (such as certain, specified court orders or written acknowledgements). See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100(A)(1), (B). Claimant did not produce any of the four alternative types of evidence and, therefore, she must rely on Georgia intestacy law to establish that she is NH’s child.

See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); POMS GN 00306.001(C)(1)(a), (C)(2)(a).

Under Georgia intestacy law, a decedent’s children are entitled to a share of the decedent’s estate. See Ga. Code Ann. § 53-2-1(c) (West 2012); All subsequent references to the Code of Georgia Annotated are to the West 2012 edition unless otherwise noted.

POMS PR 01115.012 (PR 09-122). However, a child born out of wedlock must satisfy additional evidentiary requirements to inherit from his or her father. See Ga. Code Ann. § 53-2-3(2); POMS PR 01115.012 (PR 09-122). Further, Georgia presumes a child born in wedlock to be legitimate; that is, Georgia presumes the husband of the child’s mother at the time of the child’s birth to be the child’s father. See Ga. Code Ann. § 19-7-20(a); In re Estate of S~, 540 S.E.2d 269, 271 (Ga. Ct. App. 2000); POMS PR 01010.012 (PR 06-136). Thus, a child born in wedlock cannot inherit through intestacy as the child of a man who was not married to the child’s mother when the child was born, unless the child produces evidence that both rebuts the presumption of legitimacy and meets the additional evidentiary requirements for an out of wedlock child to inherit from his or her father. See S~, 540 S.E.2d at 271.

Here, the evidence provided suggests Claimant’s mother was married to Albert when Claimant was born. Assuming for purposes of our analysis that Claimant’s mother and Albert were, in fact, married when Claimant was born, The presence of Albert’s name on Claimant’s birth certificate raises a strong probability that Albert and Claimant’s mother were married at Claimant’s birth. However, SSA’s records do not indicate whether Claimant’s mother was married to Albert at the time of Claimant’s birth. Notably, under Georgia law, if a woman is married when she gives birth to a child, her husband’s name is entered on the child’s birth certificate as the father “unless paternity has been determined otherwise by a court having jurisdiction.” Ga. Code Ann. § 31-10-9(e)(1). That is, if Albert and Claimant’s mother were married, Claimant must overcome the presumption of legitimacy. If Albert was not married to Claimant’s mother, Claimant has no presumption of legitimacy to overcome. Because Claimant produced sufficient evidence to rebut the presumption of legitimacy, definitive proof that Albert and Claimant’s mother were actually married at the time of Claimant’s birth is not necessary for our conclusion.

We begin with the presumption that Albert is Claimant’s father under Georgia law. See Ga. Code Ann. § 19-7-20(a); S~, 540 S.E.2d at 271; POMS PR 01010.012 (PR 06-136). Although the presumption of legitimacy is one of the strongest precepts known in law, clear and convincing evidence can rebut the presumption. See Ga. Code Ann. § 19-7-20(b); Baker v. Baker, 582 S.E.2d 102, 103 (Ga. 2003); POMS PR 01010.012 (PR 08-188). Thus, the first issue presented is whether Claimant has produced clear and convincing evidence to rebut the presumption that Albert is her father.

“Clear and convincing evidence” requires a higher level of proof than the preponderance of the evidence standard, but less than that required for proof beyond a reasonable doubt. See POMS PR 01010.012 (PR 08-188). Proof beyond a reasonable doubt is not proof establishing absolute certainty, but rather proof that firmly convinces. See Boone v. State, 549 S.E.2d 713, 723 (Ga. Ct. App. 2001). Because clear and convincing evidence is less than proof beyond a reasonable doubt, Claimant is not required to establish to an absolute certainty that Albert is not her father to rebut the presumption of legitimacy. Indeed, even evidence that does less than firmly convince a reasonable mind could suffice to meet the clear and convincing evidence standard necessary to rebut the presumption of legitimacy. See Clarke v. Cotton, 440 S.E.2d 165, 167 n.1 (Ga. 1994) (stating less evidence is needed to overcome the burden of clear and convincing evidence than what is needed to overcome the burden of proof beyond a reasonable doubt). Claimant must merely produce evidence that establishes a high probability that Albert is not her father. See Sharp v. Varner, 486 S.E.2d 701, 703 (Ga. Ct. App. 1997) (“The clear and convincing standard is not defined as a standard eliminating all possible conclusions except one.”).

Here, Claimant produced evidence that establishes a greater than 99% probability that Albert is not her father. Specifically, Claimant produced DNA test results indicating a 99.999998% probability that she is a full sibling of C1, meaning that they share the same biological mother and father. The facility that performed the test confirmed their accreditation with the American Association of Blood Banks, which the Department of Health and Human Services recognizes as a reliable accreditation body. See Accreditation of Genetic Testing Labs, U.S. Department of Health and Human Services, http://www.acf.hhs.gov/programs/cse/pol/IM/1997/im-9703.htm (last visited Feb. 8, 2013).

Further, Claimant produced a court order in which NH acknowledged that C1 was his child and the court ordered NH to contribute to C1’s support because C1 was his child. This court order establishes that Albert is not C1’s father, and thus, the DNA test results establish with greater than 99% certainty, Albert is not Claimant’s father either. In B~, the Supreme Court of Georgia implied that sufficiently persuasive DNA evidence identifying a child’s parentage would constitute clear and convincing evidence to rebut the presumption of legitimacy. In B~, a domestic relations matter, the Supreme Court of Georgia found that even if sufficient evidence exists to rebut the presumption of legitimacy, a court should consider whether it is in the best interests of the child to rebut the presumption before doing so. See B~, 582 S.E.2d at 105 (Ga. 2003). However, the public policy concerns that motivated the B~ decision are not present in intestacy matters. Therefore, we conclude that a Georgia court would not apply a “best interests of the child” standard in the intestacy context. See New ex rel. D.J.M. & K.N.M. v. Astrue, 374 F. App’x 416, 420 (4th Cir. 2010) (interpreting Georgia law and refusing to apply the “best interests of the child” standard when considering a presumption of legitimacy in an intestacy matter). See B~, 582 S.E.2d at 103-04. In light of B~ and the definition of clear and convincing evidence, we conclude that in an intestacy matter, a Georgia court would find the DNA test results and the court order Claimant produced constitute the clear and convincing evidence necessary to rebut the presumption of legitimacy.

Having found that Claimant rebutted the presumption of legitimacy, we must now address whether Claimant’s evidence can meet the evidentiary requirements for a child born out of wedlock to inherit from his or her father. Regardless of whether Claimant’s mother was married to Albert when Claimant was born, to establish that she could inherit from NH under Georgia intestacy law, Claimant must meet the evidentiary requirements for a child born out of wedlock to inherit from her father because Claimant produced no evidence that NH and her mother were married when she was born and Georgia law defines “child born out of wedlock” as both “a child whose parents are not married when the child is born or who do not subsequently intermarry” and “a child who is the issue of adulterous intercourse of the wife during wedlock.” Ga. Code Ann. § 19-7-23.

Pursuant to Georgia intestacy law, a child born out of wedlock may inherit from his or her father if “parentage-determination genetic testing establishes at least a 97 percent probability of paternity” and clear and convincing evidence does not rebut the testing results. Ga. Code Ann. § 53-2-3(2)(B); see POMS GN 00306.460(A)(11). The Court of Appeals of Georgia has found DNA testing of an alleged sibling that establishes shared parentage can be used in conjunction with undisputed facts to show the required 97% probability of paternity. See In re Estate of W~, 685 S.E.2d 411, 413 (Ga. Ct. App. 2009). Because SSA already recognized C1 as a child of NH, NH is C1’s father for the purposes of our analysis of whether Claimant could inherit from NH under Georgia intestacy law. SSA’s records do not indicate the section of the Act under which C1 qualified as NH’s child. However, regardless of which section of the Act SSA used to find C1 was NH’s child, C1 would be NH’s child for purposes of evaluating the DNA test results under Georgia intestacy law. If C1 qualified as NH’s child under section 216(h)(2)(A) of the Act, then SSA has already established that C1 could inherit from NH under Georgia intestacy law. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); POMS GN 00306.001(C)(1)(a), (C)(2)(a). If C1 qualified as a child of NH under sections 216(h)(2)(B) or 216(h)(3) of the Act, then treating C1 as NH’s child under Georgia law is still proper under Social Security Ruling (SSR) 06-02p. SSR 06-02p applies when SSA evaluates DNA tests showing a claimant and a known child of an insured individual are siblings and the known child did not qualify as the insured individual’s child under the state law analysis section 216(h)(2)(A) of the Act requires. In those cases, SSR 06-02p directs SSA adjudicators to assume the known child is a child of the insured individual under the applicable state intestacy law when determining whether the claimant qualifies as a child of the insured individual under section 216(h)(2)(A) of the Act. Accordingly, we conclude a Georgia court would find that the DNA test results in this case are sufficient to establish the probability of paternity required for an out of wedlock child to inherit from his or her father under Georgia intestacy law. Because no evidence provided rebuts the DNA test results produced by Claimant, we conclude Claimant is NH’s child for the purposes of Georgia intestacy law.

Thus, an SSA adjudicator could find Claimant is NH’s child for determining Claimant’s eligibility for DAC benefits on NH’s earning record. The effective date of such a finding would be the date of the piece of evidence that establishes Claimant could inherit from NH under Georgia intestacy law. See POMS GN 00306.055(A)(3). That piece of evidence would be the DNA test results. Therefore, the effective date of a finding that Claimant is NH’s child would be August 9, 2012, the date of the DNA test results.

CONCLUSION

Because Claimant could inherit from NH as NH’s child under Georgia intestacy law, an SSA adjudicator determining Claimant’s eligibility for DAC benefits on NH’s earnings record may conclude Claimant is NH’s child under section 216(h)(2)(A) of the Act effective August 9, 2012, the date of the DNA test.

Sincerely,

Mary Ann Sloan
Regional Chief Counsel

By:___________
Peter S. Massaro, III
Assistant Regional Counsel

B. PR 09-122 Sufficiency of Genetic Testing on Number Holder's Mother to Determine Paternity Number Holder - Terrell Claimant - Terrell

DATE: June 23, 2009

1. SYLLABUS

While a Georgia court would consider the genetic testing performed on Claimant and NH's mother to determine whether Claimant is the child of NH for purposes of intestate succession, genetic testing results revealing a 96.69% probability that NH's mother is the Claimant's grandmother would not be sufficient to establish a rebuttable presumption of paternity under that State's laws.

2. OPINION

QUESTION

You asked whether genetic testing showing a 96.69% probability the mother of the number holder was the grandmother of the claimant is sufficient to establish that the claimant would be considered the child of the number holder under Georgia intestacy law.

OPINION

We believe the genetic testing, standing alone, is insufficient to establish that the claimant is the child of the number holder for the purposes of intestate succession in Georgia.

BACKGROUND

Terrell, the number holder (NH), was a resident of Georgia when he died on October 17, 1998. Terrell , the claimant (Claimant), was born out of wedlock on April. Claimant's birth certificate does not list the name of his father. NH and Scherrie (Claimant's mother) were never married. In a letter submitted with Claimant's claim, Vanessa (NH's mother) stated Claimant is her grandson and NH is Claimant's father. NH's mother also stated she and other relatives of NH are active in Claimant's life. Genetic testing performed on Claimant, Claimant's mother, and NH's mother revealed a 96.69% probability that NH's mother is Claimant's grandmother.

DISCUSSION

Entitlement to Child's Insurance Benefits - In General

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) (2009). "Child" includes the natural child of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2009). In this case, Claimant's status as the surviving child of NH is governed by section 216(h)(2)(A) of the Act.

To establish his status as the surviving child of NH under section 216(h)(2)(A) of the Act, Claimant must show he could inherit NH's personal property as his child under the intestacy laws of the state where NH had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2009). Because NH was domiciled in Georgia when he died, the question is whether Claimant would be considered NH's child for purposes of intestate succession under Georgia law.

Georgia Law

Under Georgia law, a child of an individual who dies without a will is entitled to a share of the decedent's estate. See GA. CODE ANN. § 53-2-1(c)(1) (West 2009); see also GA. CODE ANN. § 53-1-2(9) (West 2009) (defining "heir" as an individual who survives the decedent and is eligible to inherit the property of the decedent not transferred by will). A child born after the decedent's death is considered a child in being at the time of the decedent's death if the child was conceived before decedent's death and born within ten months after his death. See GA. CODE ANN. § 53-2-1(b)(1) (West 2009). Claimant would fall within the parameters of this statute if he is otherwise considered NH's child because only six months separated the date of NH's death and Claimant's birth.

A child born out of wedlock may inherit from his father if (1) a court of competent jurisdiction has entered an order declaring the child to be legitimate, (2) a court of competent jurisdiction has otherwise entered an order establishing paternity, (3) the father executed a sworn statement attesting to the parent-child relationship, (4) the father signed the child's birth certificate, or (5) other clear and convincing evidence establishes the child is the child of the father. See GA. CODE ANN. § 53-2-3(2)(A) (West 2009). Claimant was born after NH's death and the information provided does not include a court order establishing Claimant's legitimacy or NH's paternity. We also have no evidence that NH signed either a sworn statement acknowledging paternity or NH's birth certificate. Therefore, the relevant question is whether other clear and convincing evidence establishes Claimant is NH's child. Under Georgia law, clear and convincing evidence is an intermediate standard of proof greater than a "preponderance of the evidence" but less than "beyond a reasonable doubt" and does not require the elimination of all possible conclusions except one. See Program Operations Manual System (POMS) PR 01115.012(A).

Analysis

The evidence provided in this case consists of genetic testing, a letter from NH's mother, and a copy of Claimant's birth certificate. We believe a Georgia court would consider the genetic testing performed on Claimant and NH's mother to determine whether Claimant is the child of NH for purposes of intestate succession. See POMS PR 01115.012(A). Georgia intestacy law states: "There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity." GA. CODE ANN. § 53-2-3(2)(B)(ii). This presumption can only be overcome by clear and convincing evidence. See GA. CODE ANN. § 53-2-3(2)(B)(i). Claimant submitted the results of genetic testing revealing a 96.69% probability that NH's mother is the Claimant's grandmother. Rather than showing a probability of paternity, as would be required to establish a presumption under § 53-2-3(2)(B)(ii), the genetic testing only shows a probability of grandpaternity. Moreover, these results are less than what is required to establish a rebuttable presumption of paternity in Georgia. We have been unable to find any authority to suggest a Georgia court would presume an individual to be a putative father's child based solely on genetic test results showing less than a 97% probability of grandpaternity. Therefore, the genetic testing in this case does not establish a presumption that Claimant is NH's child under Georgia intestacy law.

However, the genetic testing, when considered with other evidence, can, in some cases, establish "clear and convincing evidence" of paternity. See GA. CODE ANN. § 53-2-3(2)(A)(v) (West 2009). NH's mother stated she believes Claimant is her grandson. She also stated she and other family members are active in Claimant's life. Although this evidence supports a finding that Claimant is NH's child, we do not believe her statements, even when considered with the genetic testing results, are clear and convincing evidence that Claimant is NH's child. NH's mother does not clearly set forth the basis of her belief that Claimant is the child of NH. She did not state that NH acknowledged Claimant as his child. Nor does the record include evidence from Claimant's mother indicating no other man might have fathered NH. In addition, the absence of NH's name on Claimant's birth certificate also suggests Claimant is not NH's child. Therefore, we do not believe the evidence presented provides clear and convincing evidence that Claimant is NH's child for the purposes of Georgia intestacy law.

CONCLUSION

The information provided does not constitute clear and convincing evidence that Claimant is the child of NH for the purposes of intestate succession in Georgia. Therefore, given the current evidence, Claimant is not NH's child for the purposes of child's insurance benefits on the account of NH.

Feel free to contact us if Claimant supplements the current evidence.

Mary Ann Sloan
Regional Chief Counsel

By:___________
Christopher G. Harris
Assistant Regional Counsel

C. PR 09-024 Sufficiency of Genetic Testing to Meet State Intestacy Requirements When Test Results Show the Child is the Grandchild of the Number Holder's Parents - Georgia

DATE: November 17, 2008

1. SYLLABUS

In Georgia, a child born out of wedlock may inherit from or through her father if there is clear and convincing evidence that the child is the child of the father. Clear and convincing evidence is an intermediate standard, greater than "a preponderance of the evidence," but less than "beyond a reasonable doubt."

While the Georgia statute addresses only "parentage" testing, and not testing of grandparents, we believe a Georgia court would consider the results of DNA testing on Claimant and NH's grandparents probative evidence of paternity.

Additionally, since the mother attempted to file on behalf of the child in 2000 but was told by an SSA employee that grandparent DNA would not be admissible, if all other factors of entitlement are met That 2000 date may be used as the filing date.

2. OPINION

QUESTION

You asked whether genetic testing showing a high probability that the child claimant is the grandchild of the number holder's parents and a statement from the number holder's mother are sufficient to establish paternity for the purposes of child's insurance benefits. Also, you asked whether the Social Security Administration (SSA) could establish a protective filing date based on the prior attempt by claimant's mother to file an application for child's insurance benefits on behalf of the claimant.

ANSWER

For the reasons stated below, we believe an SSA adjudicator could find the genetic testing and other evidence sufficient to establish the claimant is the child of the number holder under Georgia intestacy law and for the purposes of child's insurance benefits. Also, based on the facts you provided, we believe an SSA adjudicator could establish a protective filing date of March 10, 2000.

BACKGROUND

Reginald, the number holder (NH), died May 31, 1997, while domiciled in Georgia. On July 15, 2008, Laquinda filed an application for child benefits on behalf of her daughter, Laurren (Claimant), as the surviving child of NH. Claimant was born on December, in Atlanta, Georgia. No father is listed on the birth certificate. Claimant's mother submitted DNA test results dated March 10, 2000, showing a 99.97% probability that Claimant was the grandchild of Dorothy and Henry , NH's parents. Claimant's mother also stated that she did not have sexual relations with any other relative or brother of NH. In a statement dated July 30, 2008, Dorothy, NH's mother, reported NH told her that he was expecting a child with Claimant's mother and that he was planning to marry her.

The record also contains a statement from Carol , an SSA Technical Expert, who spoke with Claimant's mother on September 12, 2008, regarding an inquiry she allegedly made in March 2000. Claimant's mother alleged she went to an SSA field office in March 2000, after obtaining DNA test results showing a 99.97% probability that NH's parents were Claimant's grandparents. Claimant's mother stated she spoke with a field office employee during her visit to the field office and that the employee did not accept her claim for benefits on behalf of the Claimant. According to Claimant's mother, after the field office employee spoke with "someone in the back of the office," she informed her that "the DNA test results could not be used as proof of paternity." Carol subsequently spoke with the field office employee, who essentially confirmed the account of Claimant's mother. Specifically, the field office employee reported she was a trainee at the time she spoke with Claimant's mother and sought assistance from another technical expert. The field office employee stated the technical expert told her SSA could not accept the DNA tests as proof of paternity because the tests were conducted with the NH's grandparents. The field office employee did not take the claim based on the information given to her by the technical expert and no additional development was undertaken to prove paternity.

DISCUSSION

Under the Social Security Act (Act), a "child" may qualify for child's insurance benefits on the work record of a deceased parent. See Act § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2008). A claimant may prove she is a "child" of a deceased number holder by showing she could inherit the number holder's property as the number holder's child under the intestacy laws of the state in which the insured number holder was domiciled at the time of his death. See Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1 ) (2008).

To determine whether Claimant could inherit NH's property as his child under section 216(h)(2)(A) of the Act, we must look to the intestacy laws of the state in which NH was domiciled at the time of his death. NH was domiciled in Georgia when he died; so, Georgia intestacy law applies in this case. Under Georgia law, children of the decedent who are born after the decedent's death are considered children in being at the time of decedent's death if they survived 120 hours after birth, were conceived prior to the death, and were born within ten months of the death. GA. CODE ANN § 53-2-1(a)(1) (2008). Georgia law provides intestate inheritance rights to a child born out of wedlock in certain circumstances. Pertinent here is GA. CODE ANN. § 53-2-3(2)(A)(v) (2008), which provides a child born out of wedlock may inherit from or through her father if there is clear and convincing evidence that the child is the child of the father. See Program Operations Manual System (POMS) GN 00306.460(A)(7). In Georgia, "[t]he clear and convincing standard is not defined as a standard eliminating all possible conclusions except one." Sharp v. Varner, 486 S.E.2d 701, 703 (Ga. 1997). Clear and convincing evidence is an intermediate standard, greater than "a preponderance of the evidence," but less than "beyond a reasonable doubt." Id.

The Georgia statute does not address the weight of scientific evidence from grandparents or other relatives in establishing the paternity of a parent. However, GA. CODE ANN. § 53-2-3(2)(B)(ii) provides: "[t]here shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity." The statute further provides that if the presumption of paternity set forth in subparagraph (B)(ii) is established and is not rebutted by clear and convincing evidence, a child born out of wedlock may inherit from and through the father in the same manner as though legitimate. GA. CODE ANN § 53-2-3(2)(C). While this statute addresses only "parentage" testing, and not testing of grandparents, we believe the statue supports the proposition that DNA evidence in general is probative of paternity and entitled to significant weight. Additionally, the statute does not specifically limit genetic testing to particular individuals, e.g., the putative father. The statute simply provides a rebuttable presumption of paternity if scientifically credible parentage-determination genetic testing establishes at least a 97% probability of paternity.

While Georgia courts have not addressed this issue, a review of the court decisions in other states reveals that the genetic tests of the putative father's relatives are, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. See, e.g., In the Matter of the Application of Ruth, 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 R~, 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); 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. Metro. Life Ins. Co., 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). Thus, we believe a Georgia court would consider the results of DNA testing on Claimant and NH's grandparents probative evidence of paternity.

In this case, genetic testing from an accredited laboratory shows a 99.97% probability that Claimant is the grandchild of the NH. Thus, there is a strong likelihood Claimant is the child of NH or one of his brothers. Nothing in the evidence suggests that Claimant's mother had intimate relations with any of NH's brothers. She specifically stated she never had relations with any brother of NH. Moreover, NH's mother said NH told her that he was expecting a child with Claimant's mother and that he planned to marry her. We also note that POMS GN 00306.065 states that, when evaluating genetic testing of a number holder's relatives, the Agency does not routinely develop a claim to determine if a male relative of the number holder may have fathered the child unless the facts of the case raise the issue or the Regional Chief Counsel directs such development in a precedent opinion. We see no justification for further development in this case. Thus, we believe an SSA adjudicator could find the DNA evidence establishing a grandparent relationship of 99.97% and the statements of Claimant's mother and NH's mother are sufficient evidence to establish inheritance rights under Georgia law.

You also asked whether a protective filing date could be established in this case. SSA can provide relief to claimants who lost benefits because they failed to file an application timely due to misinformation given by an SSA employee. See Act § 202(j)(5); POMS GN 00204.008. The POMS provide that the issue of misinformation can be raised at any time. In such cases, SSA will establish a "deemed" filing date when the claimant "satisfactorily demonstrates that information provided by SSA deterred him/her from filing a timely application and resulted in a loss of monthly title II or title XVI benefits." Id. Based on the evidence provided, we believe a "deemed" protective filing date of March 10, 2000, can be established if it is determined that the claimant satisfied all other eligibility requirements.

As discussed above, Claimant's mother attempted to apply for child's benefits in March 2000, but was told by an SSA employee that DNA from grandparents was unacceptable evidence and could not be used to prove paternity. Georgia statutes do not specifically limit genetic testing to particular individuals to establish paternity, but rather, require clear and convincing evidence of paternity, as discussed above. See also POMS GN 00306.460(A)(7) (discussing that effective January 1, 1998, if the parent is deceased paternity is established through clear and convincing evidence). Hence, Claimant's mother was misinformed in March 2000, when she was not allowed to submit DNA evidence from testing involving Claimant's grandparents. If you determine that all other eligibility requirements were satisfied, we believe SSA can establish a protective filing date of March 10, 2000.

CONCLUSION

For the foregoing reasons, we believe a Georgia court would find Claimant could inherit from NH under Georgia intestacy law and thus an SSA adjudicator could find Claimant is the child of NH for the purposes of child's insurance benefits. An SSA adjudicator also could find Claimant entitled to a protective filing date of March 10, 2000.

Mary Ann Sloan
Regional Chief Counsel

By:____________
Mona M. Pace
Assistant Regional Counsel

D. PR 08-086 Sufficiency of Genetic Testing to Meet State Intestacy Requirements When Test Results Show a Relationship with Brother of the Deceased - Georgia]

DATE: March 20, 2008

1. SYLLABUS

DNA testing which only establishes that a brother of the NH is a relative of the claimant does not establish a parent-child relationship under Georgia law. In order to establish such a relationship, we would need evidence that the brother, as well as any other brother of the number holder, could not be the father of the claimant.

2. OPINION

QUESTION

Given DNA results showing a likely avuncular relationship between the child claimant and the brother of a deceased wage earner, you asked whether the evidence presented is sufficient to establish that the claimant is the child of the deceased wage earner for purposes of child's insurance benefits.

No. DNA testing showing a high likelihood of relationship between the claimant and an individual does not necessarily establish a high likelihood that the individual's brother is the claimant's father. While state law permits a rebuttable presumption of paternity when "parentage-determination genetic testing" establishes a certain likelihood of paternity, such testing is not present in this case. Furthermore, it is possible Claimant was conceived after the number holder's death; the probable timing of conception would have to be clarified prior to an award of benefits.

BACKGROUND

William, the number holder (NH), died on July 8, 1996, domiciled in Georgia. Jakira (Claimant) was born on March. The birth certificate does not list a father. An application was filed for Claimant for child's insurance benefits on NH's wage record. Genetic testing of Claimant and NH's brother resulted in an "avuncular report" indicating that NH's brother was 99.99 percent more likely to be related as an uncle to Claimant than to be unrelated.

DISCUSSION

The Georgia Code provides that children of the decedent who are born after the decedent's death are considered children in being at the time of the decedent's death if they survived 120 hours after birth, were conceived prior to the decedent's death, and were born within ten month's of the decedent's death. See GA. CODE ANN. § 53-2-1(a)(1) (2008). The statute also states that the half-blood are considered equally with the whole blood, and children of any common parent are treated as brothers and sisters to each other. See GA. CODE ANN. § 53-2-1(a)(2). Claimant was born more than eight and a half months after NH's death. This is within the ten-month required period. However, proof of "conceived prior to the death" is a separate requirement. If Claimant were more than one-half month premature, she could not have been conceived prior to NH's death.

Regardless of the timing of conception, the DNA evidence alone is inadequate to establish Claimant as the child of NH under Georgia intestacy law. GA. CODE ANN. § 53-2-3(2)(B)(ii) (2008) provides: "There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity." The statute further provides that if the presumption of paternity set forth in subparagraph (B)(ii) is established and is not rebutted by clear and convincing evidence, a child born out of wedlock may inherit from and through the father in the same manner as though legitimate. See GA. CODE ANN. § 53-2-3(2)(C).

The evidence submitted does not satisfy GA. CODE ANN. § 53-2-3 because the DNA testing is not "parentage-determination genetic testing." Rather, the testing resulted in an "avuncular report" that addressed only two possibilities: (1) whether NH's brother was Claimant's uncle or (2) NH's brother and Claimant had no relationship at all. The report simply concluded: "Desmond is 8096 times more likely to be related as an Uncle to Jakira than to be unrelated. The probability of relatedness is 99.99%." Because the report contrasts avuncular relationship only to unrelatedness, and not to non-avuncular relationship, it does not exclude the possibility that NH's brother is Claimant's father. Furthermore, even if NH's brother is Claimant's uncle, Claimant's father may be a brother other than NH.

Georgia intestacy law does provide that other evidence together with this genetic testing could establish Claimant is NH's child. A child born out of wedlock may inherit in Georgia if there is "other clear and convincing evidence that the child is the child of the father." GA. CODE Ann § 53-2-3(2)(A)(v). For example, if NH's brother had no access to Claimant's mother during the period when conception could have occurred, and NH has no other brothers, then such clear and convincing evidence might be present. However, such evidence is not presently available to us.

The reasoning in this opinion conflicts with the reasoning in the precedent opinion at Program Operations Manual System (POMS) PR 01115.012(G) (July 12, 2000). The precedent opinion, applying Georgia law, states that genetic testing showing a 99.99% possibility that the number holder's parent is the claimant's grandparent creates a rebuttable presumption that the number holder is the claimant's father. We believe that the precedent is not properly reasoned, because it does not address other possibilities, such as parentage by possible brothers of the number holder, or even parentage by the purported grandparent. We therefore ask that PR 01115.012(G) be removed from the POMS.

The reasoning in this opinion is consistent with the reasoning in the precedent opinion at POMS PR 01115.012(A) (September 29, 2006). In POMS PR 01115.012(A), genetic test results established a 99.85% probability that the claimant was the half sibling of an individual already established as the number holder's child. The opinion analyzed and excluded other possibilities by showing that the claimant and the half sibling had different mothers; thus, they could only have the father as a common parent. However, we note that we submitted a modified version of this opinion dated January 17, 2007. The modified opinion reached the same result, but analyzed the laboratory certification requirements differently. The issue of laboratory certification is not relevant here, because the DNA evidence is inadequate for other reasons.

The only evidence submitted along with the DNA test results here to support the claim of child status is the assertion of parentage in the application itself. This evidence, considered as a whole, cannot satisfy the clear and convincing standard for establishing child status under Georgia law because the evidence leaves significant alternative possibilities of paternity.

CONCLUSION

We do not believe the evidence in this case, including DNA test results, shows Claimant could inherit from NH under Georgia intestacy law. The DNA evidence thus does not establish Claimant as the child of NH for the purposes of eligibility for child's insurance benefits on NH's record. Furthermore, the timing of the birth raises the possibility that Claimant was conceived after NH's death.

Mary A. Sloan
Regional Chief Counsel

By:
Rollin Mathis
Assistant Regional Counsel

E. PR 06-358 Sufficiency of Genetic Testing to Meet State Intestacy Requirements When the Test Results Show a Half-Sibling Relationship with an Entitled Child - Georgia]

DATE: September 29, 2006

1. SYLLABUS

In Georgia, DNA test results showing a 99.85% probability that the claimant and an already entitled child of the deceased number holder are half siblings are sufficient to create a rebuttable presumption of paternity provided that other evidence confirms that the test comply with statutory requirements.

2. OPINION

QUESTION

Does genetic testing that shows a high probability that a child is the half-sibling of an entitled child satisfy Georgia state intestacy requirements?

ANSWER

For the reasons stated below, we believe an SSA adjudicator could find the cited evidence is sufficient to satisfy state intestacy requirements under Georgia law, provided further development confirms the tests performed comply with statutory requirements.

BACKGROUND

John , the number holder (NH), died December 27, 2005, while domiciled in Georgia. On March 21, 2006, Kimberly filed for benefits for her son, Garrett (Claimant), as the surviving child of NH. She produced a birth certificate, which shows a date of birth of January 23, 2006, but does not identify a father. Claimant's mother was questioned regarding additional information that would support her assertion that NH was Claimant's biological father and she indicated she had no verbal or written documentation other than her own assertion. She stated NH had two other children, Taylen (C2) and Hanna (C3), who lived in separate households. The claim was denied on April 16, 2006.

On June 4, 2006, Claimant's mother submitted a genetic test report from Orchid Cellmark, a laboratory accredited by the American Association of Blood Banks. Genetic testing was performed on Claimant, his mother, and C3, and the results show a 99.85% probability that Claimant and C3 are half-siblings. The birth certificate for C3 shows NH as the father, but Shannon as the mother; C3 is currently receiving benefits on the NH's record as his illegitimate child with inheritance rights.

DISCUSSION

Under the Social Security Act, a "child" under age eighteen may qualify for child's insurance benefits on the work record of a deceased parent. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d)); 20 C.F.R. § 404.350 (2006). A claimant may prove he is a "child" of a deceased number holder by showing he could inherit the number holder's property as the number holder's child under the intestacy laws of the state in which the insured number holder was domiciled at the time of his death. See § 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355 (2006). NH was domiciled in Georgia when he died, and the Georgia law providing for intestate inheritance rights is found at O.C.G.A. § 53-2-1(2006). This section clarifies that children of the decedent who are born after the decedent's death are considered children in being at the time of decedent's death if they survived 120 hours after birth, were conceived prior to the death, and were born within ten month's of the death. O.C.G.A. § 53-2-1(a)(1). This provision also states that the half-blood are considered equally with the whole blood, and children of any common parent are treated as brothers and sisters to each other. O.C.G.A. § 53-2-1(a)(2). Neither of these provisions creates any obstacle for claimant.

We assume from the negative responses by Claimant's mother to questions about documentation of paternity that she and NH were not married. However, Georgia law provides intestate inheritance rights to a child born out of wedlock in certain circumstances. Pertinent here is O.C.G.A. § 53-2-3(2)(B)(ii), which provides: "There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity." The statute further provides that if the presumption of paternity set forth in subparagraph (B)(ii) is established and is not rebutted by clear and convincing evidence, a child born out of wedlock may inherit from and through the father in the same manner as though legitimate. O.C.G.A. § 53-2-3(2)(C).

We note as an initial issue that this Georgia statute requires certain types of parentage-determination genetic testing. The testing must include, but is not limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes. O.C.G.A. § 53-2-3(2)(B)(ii), O.C.G.A. § 19-7-46(b). We could not tell from the Orchid Cellmark report whether the tests performed complied with this requirement. If the tests performed do not satisfy the statutory requirement, the results will not be sufficient to raise a rebuttable presumption of paternity and, considering the lack of any other evidence, the tests would not seem to provide sufficient evidence to establish inheritance rights through NH under Georgia law. On the other hand, if the tests do comply with the statutory requirements, we offer the following analysis.

Neither the inheritance statutes nor the paternity statutes limit genetic testing to particular individuals, i.e., the putative father. The statutes simply provide a rebuttable presumption of paternity if scientifically credible parentage-determination genetic testing establishes at least a 97 percent probability of paternity. In this case, genetic testing shows a 99.85% probability that Claimant and C3 are half-siblings. In other words, the testing shows they share one biological parent. According to the birth certificates for claimant and C3, they do not share the same mother. Claimant's mother is Kimberly, and C3's mother is Shannon. Therefore, the children's father must be their common biological parent. Because C3 is currently receiving benefits on the NH's record as an illegitimate child with inheritance rights, the conclusion that NH is the shared parent of Claimant and C3 is implicit in the language of the test results. We conclude that the genetic testing showing a half-sibling relationship raises a rebuttable presumption under Georgia law that NH is Claimant's father. We have seen no evidence to rebut this presumption, much less clear and convincing evidence. Therefore, we believe an adjudicator could find Claimant would have inheritance rights through NH under Georgia law.

CONCLUSION

For the foregoing reasons, we believe the evidence presented is sufficient to establish that Claimant would have inheritance rights through NH under Georgia law.

Mary A. Sloan
Regional Chief Counsel

By:
Nancy R. Bartlett
Assistant Regional Counsel

F. PR 06-088 Termination Based Upon Genetic Testing, Georgia Number Holder - Jimmy (NH) Claimant - Deanna ]

DATE: March 6, 2006

1. SYLLABUS

A child awarded benefits under Section 216(h)(3) of the Social Security Act based on the number holder's name appearing on the birth certificate may have his award reopened for new and material evidence within four years of the award if DNA testing disproves the number holder's paternity under Georgia's standards.

2. OPINION

In considering these child's claims for benefits, you asked whether a child who met Georgia law requirements to be a legitimated child and was entitled to benefits under 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) could lose her status as a legitimated child under Georgia law when DNA testing revealed that the NH was not the father of the child. Having considered the evidence presented, and the applicable federal and state law, it is our opinion that Deanna's (Claimant) claim can be reopened and that she would lose her status as the child of Jimmy (NH).

FACTS

Claimant was determined eligible for benefits on the record of NH because NH was listed as the father on Claimant's birth certificate. NH and Claimant's mother never married. NH believed that Claimant was his child and listed her as his child on his application for disability benefits. Subsequently, DNA testing done by the DNA Diagnostics Center, a laboratory accredited by the American Association of Blood Banks, revealed that there was a zero percent probability that NH was Claimant's father. Claimant became entitled to benefits in June 2003. The DNA testing was performed in September 2004 and presented to the Agency in October 2004.

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, 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, a claimant must show that he or she 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. Here, the NH acknowledged Claimant as his child when he allowed his name to be listed on the birth certificate. The child qualified under section 216(h)(3)(C).

A child can also qualify under section 216(h)(2)(A) of the Act. To qualify for benefits under section 216(h)(2)(A), a claimant must show that he or she would be entitled to a child's share of the number holder's intestate personal property under the law of the state in which the number holder was domiciled at the time of his death. According to the record, the NH is in Georgia now and there is no evidence suggesting that the NH's domicile is other than Georgia. We conclude that the NH is domiciled in Georgia and that Georgia'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, Georgia law provides as follows:

For purposes of intestate succession in Georgia, a child born out of wedlock may not inherit from or through the child's father or any paternal kin unless: 1) a court of competent jurisdiction entered an order declaring the child to be legitimate; 2) a court of competent jurisdiction has otherwise entered a court order establishing paternity; 3) the father has executed a sworn statement signed by him attesting to the parent-child relationship; 4) the father has signed the birth certificate of the child; or 5) there is clear and convincing evidence that the child is the child of the father.

O.C.G.A. Sec. 53-2-3 (2005).

Under Georgia inheritance law, paternity for the purposes of inheritance can be established by DNA evidence of 97 percent or greater probability of paternity, which is considered "clear and convincing" evidence. O.C.G.A. Sec. 53-2-3(2)(B)(ii) (2005). DNA tests also are used in other contexts in Georgia. A child support determination can be set aside in some instances based upon DNA evidence showing that the male determined to be the father could not be the father. O.C.G.A. Sec. 19-7-54 (2005). The requisite DNA evidence must be obtained from genetic testing as authorized under O.C.G.A. 19-7-46 (an accredited laboratory) and must show a zero percent probability that the male once considered the father was actually the father. O.C.G.A. Sec. 19-7-54(a)(2) (2005). Because DNA testing is used in other contexts in Georgia to rule out a man as a father, we believe that Georgia courts would apply those rules in the inheritance context as well, regarding DNA tests ruling out paternity as "clear and convincing" evidence.

ANALYSIS

The first issue raised is whether the results of the DNA testing justify reopening the Social Security Administration (SSA) determination that Claimant is entitled to child's benefits. If a child has been entitled to benefits under the record of an insured individual determined to be the child's father, 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) (2005). As a result, SSA may only stop Claimant's benefits based on NH's earnings record if SSA reopens the original child-status determination. See 20 C.F.R. § 404.988 (2005).

SSA may reopen a determination within four years of the date of the initial determination if SSA finds good cause. See 20 C.F.R. § 404.988(b). Good cause for reopening includes receipt of "new and material evidence." 20 C.F.R. § 404.989(a)(1). 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." Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998); Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1068 (11th Cir. 1994). This court standard, applicable to sentence 6 remands, is similar to the regulatory standard at 20 C.F.R. Sec. 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 testing results are "new" given that they did not exist at the time of the initial determination. The testing results would also meet the "materiality" test because they show that NH could not be Claimant's father. As a result, the DNA testing results would provide good cause for reopening the initial determination. SSA apparently received DNA tests in October 2004. Claimant's entitlement was determined in December 2002. Thus, it appears that SSA began its investigation within the four-year period of the date of the notice of initial determination. The initial determination can be reopened.

Claimant cannot show that he continues to qualify under section 216(h)(2)(A) of the Act. Under Georgia law, DNA tests have been widely used to exclude a man as the father of a child. A purported father can file a motion to set aside a determination of paternity based on the basis of newly discovered evidence, including DNA evidence that shows a zero percent probability that the purported father is actually the father. O.C.G.A. Sec. 19-7-54 (2005). The presumption of validity of even a child born in wedlock can be overcome by clear evidence to the contrary. Families First v. Gooden, 439 S.E.2d 34 (Ga. App. 1993). In this case, the court found that blood tests excluding the husband as the father of the child was clear and convincing evidence sufficient to rebut the presumption of legitimacy. Further, with respect to the weight accorded to blood test results establishing non-paternity, O.C.G.A. Sec. 19-7-49(b) provides that, "On a finding that the alleged father is not the father of the child, the court shall issue an order declaring this finding." DNA testing excluding a man as a child's father has not been used in the inheritance context in Georgia, but DNA testing can be used to establish paternity for inheritance purposes. O.C.G.A. Sec. 53-2-3(2)(B)(ii) (2005). Accordingly, we believe that Georgia courts would find DNA evidence excluding a man as a father to be "clear and convincing" evidence in the inheritance context.

Claimant also would not be entitled to continued benefits under section 216(h)(3) of the Act or under state law provisions. To be entitled to benefits under section 216(h)(3), the applicant must first establish that he or she is the "son or daughter of a fully or currently insured individual." 42 U.S.C. § 416(h)(3). Given that DNA testing results clearly establish that Claimant is not the biological child of the NH, he cannot show that he is the son of NH. As a result, Claimant cannot be deemed the child of the NH under section 216(h)(3) of the Act.

As previously discussed, DNA testing results cannot provide a basis for terminating Claimant's benefits within the meaning of 20 C.F.R. § 404.352(b). Because the results can only provide a basis for reopening and reversing the initial award of benefits, they can only support a finding that Claimant was never entitled to benefits on NH's record. Consequently, the benefits Claimant has received to date would constitute an overpayment; however, the circumstances might justify waiver of that overpayment.

The regulations set forth a two-prong test to determine if waiver is appropriate: (1) the overpaid individual was without fault in connection with an overpayment; and (2) adjustment of the recovery of such overpayment would either defeat the purpose of Title II or be against equity and good conscience. See 20 C.F.R. §§ 404.506-404.509. What constitutes fault on the part of an overpaid individual or on the part of any other individual from whom SSA seeks to recover the overpayment depends on whether the incorrect payment resulted from:

An incorrect statement made by the individual which he knew or should have known to be incorrect; or

Failure to furnish information which he knew or should have known to be material; or

With respect to the overpaid individual only, acceptance of a payment which he either knew or could have been expected to know was incorrect.

20 C.F.R. § 404.507. Given that the Claimant is a young child, he is clearly without fault in receiving the overpayment under 20 C.F.R. § 404.507. Nevertheless, Claimant would still need to present evidence that collecting the overpayment would defeat the purpose of Title II of the Act or be against equity and good conscience. See 20 C.F.R. §§ 404.508, 404.509.

Even if SSA determines that Claimant is entitled to a waiver, SSA must then determine whether his representative payee was at fault in causing the overpayment. See 20 C.F.R. § 404.507. We do not offer an opinion on this issue, as there is no evidence in the current record that the mother or father knew the NH was not Claimant's father.

In conclusion, the DNA testing results showing that Claimant is not the child of the NH is new and material evidence that provides good cause for reopening the application for benefits under NH's account pursuant 20 C.F.R. § 404.988(b). Because SSA received the DNA testing results and began its investigation within four years of the initial determination, SSA may issue an unfavorable decision pursuant to 20 C.F.R. § 404.991a. The reopening of Claimant's application would result in a finding that Claimant is not entitled to benefits. As a result, SSA would need to assess an overpayment for the full amount of benefits and consider whether a waiver is appropriate.

Mary A. Sloan
Regional Chief Counsel

By:
Laurie G. Remter
Assistant Regional Counsel

G. PR 06-087 Termination Based Upon Genetic Testing, Georgia Number Holders - Harry (NH) Claimant - Jordan ]

DATE: March 6, 2006

1. SYLLABUS

2. OPINION

In considering this claim for child's benefits, you asked whether a child who met Georgia law requirements to be a legitimated child and was entitled to benefits under 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) could lose his status as a legitimated child under Georgia law when DNA testing revealed that the NH was not the father of the child. Having considered the evidence presented, and the applicable federal and state law, it is our opinion that Jordan ' (Claimant) claim can be reopened and that he would lose his status as the child of Harry (NH).

FACTS

Claimant was determined eligible for benefits on the record of NH because number holder's name was on Claimant's birth certificate. NH and Claimant's mother were never married. NH believed that Claimant was his child when his name was listed on the birth certificate. Subsequently, DNA testing done by the DNA Diagnostics Center, a laboratory accredited by the American Association of Blood Banks, revealed that there was a zero percent probability that NH was Claimant's father. Claimant became entitled to benefits in December 2002. The DNA testing was performed in April 2004 and presented to the Agency in October 2004. NH is seeking to modify Claimant's birth certificate.

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 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 or she 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. Here, the NH acknowledged Claimant as his child when he allowed his name to be listed on the birth certificate. Claimant qualified under section 216(h)(3)(C).

O.C.G.A. Sec. 53-2-3 (2005).

ANALYSIS

An incorrect statement made by the individual which he knew or should have known to be incorrect; or

Failure to furnish information which he knew or should have known to be material; or

With respect to the overpaid individual only, acceptance of a payment which he either knew or could have been expected to know was incorrect.

Mary A. Sloan
Regional Chief Counsel

By:
Laurie G. Remter
Assistant Regional Counsel

H. PR 05-238 Whether an Oral Acknowledgment Can Constitute Clear and Convincing Evidence of Paternity under Georgia Intestacy Law]

DATE: August 26, 2005

1. SYLLABUS

Oral acknowledgement(s) may be the basis for establishing paternity of a child born out of wedlock under the clear and convincing standard required by Georgia intestacy law. The NH's mother and sister as well as another acquaintance all submitted statements indicating that the NH stated that the claimant was his child. Since Georgia law also provides that a child born out of wedlock establishing inheritance rights may inherit in the same manner as though legitimate, a child determined by clear and convincing evidence to be the NH's child will have rights to retroactive benefits equivalent to those of a legitimate child.

2. OPINION

QUESTION

On September 28, 2004, number holder Matthew (NH) died domiciled in Georgia. Zicara (Claimant) was born on November. Claimant's mother, Cara, filed for child's insurance benefits on Claimant's behalf on May 10, 2005. Claimant was found entitled effective May 2005 because, under 42 U.S.C. § 416(h)(3), NH was shown by evidence satisfactory to the Commissioner to have been Claimant's father and to have been living with or contributing to Claimant's support at the time of his death. You have asked whether, under Georgia intestacy law, oral acknowledgment can be used to establish clear and convincing evidence of paternity, allowing Claimant to meet the requirements of Georgia intestacy law and 42 U.S.C. § 416(h)(2)(A), and, if so, whether Claimant can be paid retroactive benefits.

ANSWER

Oral acknowledgment(s) may provide a basis for establishing clear and convincing evidence of paternity in Georgia. Under Georgia law, Claimant, a child born out of wedlock, may inherit from her father if there is clear and convincing evidence of paternity. If a determination is made that the evidence of record constitutes clear and convincing evidence of Claimant's paternity, such a determination would allow Claimant to inherit from her father in the same manner as though legitimate and would entitle Claimant to retroactive benefits.

BACKGROUND

According to the information provided to us, SSA received a letter dated May 10, 2005, from OB/GYN Women Specialists of Georgia, P.C., stating that Claimant's mother was a patient, that she was under their care for the prenatal care and delivery of a child born November, and that NH accompanied Claimant's mother to their office during the period of her prenatal care. In a letter dated May 24, 2005, and written on Georgia-Pacific Corporation stationery, Chastity, human resources manager, states that NH said Claimant's mother was pregnant with his child. To Chastity's knowledge, this is the child born to Claimant's mother on November 5, 2004. Amanda, NH's sister, submitted a statement dated May 25, 2005, indicating that when Claimant's mother's pregnancy was verified in the spring of 2004, NH told her, his mother, his siblings, and his coworkers that Claimant's mother was pregnant with his child. She stated NH "and the family completely acknowledged her paternity from day one." Eleanor, NH's mother, submitted a statement dated May 19, 2005, indicating that in the spring of 2004, NH told her and his coworkers, siblings, and friends that Claimant's mother was pregnant with his child. The NH's mother also stated that at the time of his death, NH was living with Claimant's mother at her mother's address. The NH's death certificate shows he resided at the address of Claimant's maternal grandmother, and NH's mother was the informant. Although Claimant's mother stated on the application for child's insurance benefits that NH listed Claimant as his daughter in the family Bible, NH's mother responded to an SSA inquiry stating that there was no family Bible. Claimant's mother also indicated that NH claimed Claimant on his 2003 tax return. No verification was provided. Claimant's mother also stated on the application that NH gave her cash for Claimant's support.

DISCUSSION

Title 42 U.S.C. § 416(h)(2)(A) provides that in determining whether an applicant is the child of an insured individual, the Commissioner shall apply 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. Applicants who according to such law would have the same status as a child relative to taking intestate personal property shall be deemed such. Id. NH died domiciled in Georgia, and the Georgia law providing for the intestate inheritance rights of a child born out of wedlock is found at O.C.G.A. § 53-2-3 (2005). As relevant to this legal opinion, a child born out of wedlock may inherit from her father if there is "clear and convincing evidence that the child is the child of the father." O.C.G.A. § 53-2-3(2)(A)(v). "Clear and convincing evidence" is "an intermediate standard of proof, requiring a higher minimum level of proof than the preponderance of evidence standard, but less than that required for proof beyond a reasonable doubt." Clark v. Cotton, 440 S.E.2d 165 (Ga. 1994).

We find few Georgia cases discussing whether oral acknowledgment(s) may constitute clear and convincing evidence of paternity. In a related area, Georgia law provides that the legitimacy of a child born in wedlock may be disputed by clear and convincing evidence. O.C.G.A.§ 19-7-20(a). The court in In re Estate of S~, 540 S.E.2d 269 (Ga. App. 2000), considered a mother's oral testimony as to her husband's non-access and found this testimony sufficient to rebut the presumption that the child (B~) born in wedlock was the legitimate child of her mother's husband. The court apparently found that the oral testimony met the burden of proof, clear and convincing evidence, required to rebut the presumption that a child born in wedlock is legitimate. The S~ court then considered whether B~ was the biological daughter of the deceased (S~) and whether she had intestate inheritance rights to his estate under O.C.G.A. § 53-2-3(2)(A)(v). With respect to determining whether B~ had intestate inheritance rights, the court considered the testimony of both B~ and her mother that S~ told his mother and his friends that B~ was his daughter. They also testified that S~ attended the birth of B~' son and that he told his family and neighbors the boy was his grandson. Three of S~'s friends also testified that S~ told them and others in their presence that B~ was his daughter and that B~' son was his grandson. There was conflicting testimony. S~ sister testified that S~ never told her B~ was his child and she noted that B~' mother listed her husband (and not S~r) as B~' father on B~' birth certificate and her school registration forms. There was no documentary evidence of S~ acknowledgment of paternity although funeral home programs for the funerals of S~ mother and S~, respectively, listed B~ as the granddaughter and daughter. The court found there was clear and convincing evidence that B~ was S~ daughter and held that B~ was entitled to inherit under O.C.G.A. § 53-2-3(2)(A)(v).

In Curry v. State, 104 S.E.2d 148 (Ga. App. 1958), the court considered the issue of paternity in connection with a defendant's failure to give bond and security for the maintenance and education of an illegitimate child. The court held that the trial court erred in charging the jury to restrict their consideration to the oral testimony in the case without regard to the documentary evidence. The court stated that "Where there is documentary evidence as well as oral testimony and the statement of the defendant, the jury must take all these elements into consideration in arriving at its verdict." Id. At 150. The court's holding indicates all evidence should be considered and does not seem to imply that any particular type of evidence, oral or documentary, is required to meet the 'clear and convincing' standard of proof.

In a somewhat analogous case involving Georgia Workmen's Compensation Law, Patterson v. Liberty Mutual Insurance Company, 137 S.E.2d 549, 550 (Ga. App. 1964), the court stated that "what constitutes acknowledgment on the part of the putative father necessarily depends on the circumstances of each case as there is no definitive rule to be applied." The court found that "the deceased employee believed that the woman with whom he had been living for several months was pregnant and that the decedent by his conduct acknowledged his parentage of the child," and the court authorized an award in favor of the posthumous child.

It is our opinion that, under Georgia law, oral acknowledgment(s) may constitute clear and evidence of paternity. The evidence presented here would seem to argue in favor of finding clear and convincing evidence supports paternity, since evidence is plentiful and largely uncontradicted. However, we could find limited support for the opposite conclusion since there is no documentary proof of paternity and some testimony was inconsistent. If the finders of fact determine that the oral evidence presented in this claim is sufficient to constitute clear and convincing evidence of paternity, then Claimant acquires the status of a child and would be entitled to inherit from her father under O.C.G.A. § 53-2-3(2)(A)(v). Section 53-2-3(C) further provides that if a child born out of wedlock establishes inheritance rights under § 53-2-3(A), the child "may inherit in the same manner as though legitimate." Thus, while Claimant would not be legitimate, Georgia would accord her inheritance rights equivalent to those of a legitimate child. Therefore, if Claimant is determined by clear and convincing evidence to be NH's child, her rights to retroactive benefits would be equivalent to those of a legitimate child. POMS GN 00306.460(A)(7

Mary A. Sloan
Regional Chief Counsel

By:
Pamela W. Walters
Assistant Regional Counsel

I. PR 05-221 DNA Testing Used to Establish a Parent-Child Relationship Between the Deceased Number Holder, Nicholas , and Shyah under Georgia Law

DATE: August 4, 2005

1. SYLLABUS

In Georgia, a "rebuttable presumption of paternity of a child born out of wedlock" exists if parentage-determination genetic testing establishes at least a 97% probability of paternity. In this case, DNA testing involving the claimant, the deceased number holder and the claimant's mother and establishing a 99.999998% probability of a parent-child relationship between the number holder and claimant is sufficient to establish the rebuttable presumption of paternity.

2. OPINION

QUESTIONS

You asked whether Shyah (Claimant) may be entitled to benefits on the record of the deceased number holder, Nicholas (NH), on the basis of DNA testing results that show a 99.999998% probability of paternity. If Claimant is entitled to benefits, you also asked, would Claimant's relationship to NH be established as of the date of the DNA testing, or the relationship be considered effective from Claimant's birth? You also asked about the accreditation requirements for genetic testing laboratories under Georgia law.

ANSWERS

The DNA tests results create a presumption of paternity under Georgia law that appears unrebutted by other evidence in the record. It seems likely, therefore, that a Georgia court would find Claimant to be NH's child, and a Social Security Administration (SSA) adjudicator could, therefore, conclude that Claimant is NH's child for entitlement purposes.
The effective date of such a parent-child relationship would be November 16, 2003, Claimant's date of birth.
Georgia does not expressly require an accredited laboratory to conduct genetic testing used to establish inheritance rights. We would expect a court that was concerned about the validity of genetic testing in an inheritance proceeding to consider the accreditation requirements found in the state's paternity provisions. The testing facility here appears to satisfy those paternity provisions. Therefore accreditation would not seem to be a problem in this case.

BACKGROUND

On March 28, 2003, NH died while domiciled in Georgia. Claimant was born on November. Claimant's mother, Jamie , indicated that she begun a relationship with NH in October 2002. Claimant's mother also indicated that she lived with NH in a mobile home they rented together from March 19, 2003 until he died on March 28, 2003. On August 9, 2004, DNA parentage tests completed using genetic material from NH, Claimant, and Claimant's mother, indicated a 99.999998% probability of paternity. This DNA test was conducted by Genelex Corporation. Genelex Corporation's stationary claims Genelex has been accredited by the American Association of Blood Banks Parentage Testing Committee for DNA parentage testing. The DNA test results were released on March 3, 2005. On March 17, 2005, Claimant's mother applied for surviving child's benefits on Claimant's behalf.

DISCUSSION

1. Sufficiency of DNA testing to establish inheritance rights under Georgia law.

When determining entitlement to surviving child's benefits, the Agency applies the inheritance laws of the state in which the insured had his permanent home when he died. See § 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) (2005). Agency regulations further provide that if applicable state inheritance law requires a court determination of paternity, the Agency will not require a court determination, but will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2).

For purposes of intestate succession in Georgia, a child born out of wedlock may inherit from or through the father if evidence of the rebuttable presumption of paternity is filed with the court before which proceedings on the estate are pending, and the presumption is not overcome by clear and convincing evidence. See Ga. Code Ann. § 53-2-3(B)(i) (2005). A "rebuttable presumption of paternity of a child born out of wedlock" exists if parentage-determination genetic testing establishes at least a 97% probability of paternity. See id. at § 53-2-3(B)(ii). Such parentage-determination genetic testing includes DNA testing. See id.

In this case, the parentage test results reveal a 99.999998% probability of paternity. In the absence of clear and convincing evidence rebutting the § 53-2-3(b) presumption of paternity, Claimant could inherit from the NH in Georgia through intestate succession. We see no evidence in the record that would provide clear and convincing evidence to overcome the statutory presumption of paternity. Thus, we believe a Georgia Court would find Claimant to be NH's child, and an SSA adjudicator could reasonably conclude, based on the facts you provided, that Claimant is NH's child for the purposes of determining Claimant's entitlement to surviving child's benefits.

2. Georgia law treats illegitimate and legitimate children the same, so an established illegitimate relationship has a retroactive effect.

Under Georgia law, once the rebuttable presumption of paternity has been established, a child born out of wedlock may inherit in the same manner as though legitimate from and through the child's father. See Ga. Code Ann. § 52-2-3(C); see also POMS PR 01115.012(B). If Claimant qualifies as NH's child under Georgia law, as discussed above, he could inherit in the same manner as if legitimate. Therefore, we believe Claimant would be treated as if he were legitimate from birth, and the effective date of the parent-child relationship would be November 16, 2003, Claimant's date of birth.*

3. Georgia accreditation for genetic testing.

Under Georgia law, there are no specific accreditation requirements for genetic testing in connection with establishing inheritance rights. See Ga. Code Ann. § 52-2-3. As stated in POMS PR 01115.012(B):

While Georgia provides for specific accreditation requirements for genetic testing in connection with paternity proceedings (§§ 19-7-43, 19-7-45, and 19-7-46), we do not find any statutory or case law support for extending these requirements to genetic tests conducted in connection with establishing inheritance rights.

Id. (emphasis added). Thus, Georgia does not require genetic testing to be conducted by an accredited laboratory to establish inheritance rights, and sections 19-7-43, 19-7-45, and 19-7-46 of the Georgia Code do not apply to the use of genetic testing for establishing inheritance rights.

We note that the accreditation requirements for genetic testing in connection with paternity proceedings, as stated in Section 19-7-45, may serve as useful guidance to determine the validity of genetic testing in connection with establishing inheritance rights. Pursuant to Georgia Code section 19-7-45, genetic testing used in paternity proceedings "must be conducted by a laboratory certified by the American Association of Blood Banks." Thus, such certification, while not required, is strong evidence that the genetic testing is valid. In this case, the DNA test results state that Genelex Corporation is "accredited by the American Association of Blood Banks Parentage Testing Committee for DNA parentage testing."

CONCLUSION

The genetic testing performed in this case can establish a rebuttable presumption of paternity, absent clear and convincing evidence to the contrary, and would confer inheritance rights equal to those of a legitimate child. Furthermore, Georgia does not require genetic testing in connection with establishing inheritance rights to be conducted by an accredited laboratory.

Mary A. Sloan
Regional Chief Counsel

By: ______________________
Brian Seinberg
Assistant Regional Counsel

J. PR 02-024 Whether a 1999 Georgia Court Order Finding the Child is the Biological and Legitimate Child Could Establish Paternity of a Wage Earner Who Died in Oklahoma in 1982 Before the Child was Born [NH Ronald , SSN ~]

DATE: September 28, 2000

1. SYLLABUS

In accordance with Gray v. Richardson, SSA is not bound by a Georgia court's Order Establishing Paternity and Legitimization stating that the child was born of a common-law marriage established under the States of Oklahoma and Georgia, and was therefore the biological and legitimate child of the NH. The issue was not genuinely contested before the State court by parties with opposing interests, and the State court's order is not consistent with the law enunciated by the highest court of the State. There is no evidence of a common-law marriage in Oklahoma or Georgia.

2. OPINION

You have requested an opinion regarding whether a 1999 Georgia State Court Order finding that Margo is the biological and legitimate child of Ronald establishes paternity for the purpose of awarding Social Security surviving child's benefits. / In our opinion, the Social Security Administration (SSA) should not accept the Order as establishing the paternity of Margo because the proceedings were not genuinely contested and the Order is not consistent with the law enunciated by the highest court of the State.

Ronald's death certificate indicates that he was 20 years old when he died in Oklahoma on March 24, 1982. His death was deemed a suicide by the medical examiner. His father, Max (the senior Max), informed the medical examiner that his son was never married and was a resident of Oklahoma. Margo's birth certificate was completed by her mother, Tracey , a resident of Oklahoma, who signed her name as "Tracey." The birth certificate indicates that Margo was born in Oklahoma on November, and that her father was Ronald.

Ronald's father, mother ( Martha ), and brother, Raymond , were recently contacted by the undersigned. The senior Raymond said that Ronald never resided in Georgia, and in fact had never visited Georgia with Tracey. He noted that his son lived at home with him in Lawton, Oklahoma until his son turned 18 and got a job with Haliburton in Davis, Oklahoma. Ronald then lived in Davis until he died. Raymond said that his brother and Tracey lived together for a short time, and that his brother never indicated to him that Tracey and he considered themselves married. Raymond did not believe that Margo was his brother's child because Tracey had sexual relations with other men at that time. Ronald 's mother and father both reported that they were not notified that Tracey and Margo had filed a Petition To Establish Paternity And Legitimization.

In May 1983, Tracey filed applications for surviving child's benefits on behalf of Margo, and surviving widow's benefits on behalf of herself, alleging that she and Ronald had a common law marriage. Both applications were denied in December 1983, on the basis that Tracey could not establish that a marriage existed under the deemed marriage provisions or under the laws of Oklahoma, and that Margo was not a deemed child and could not inherit under Oklahoma law.

Another application for surviving child's benefits was filed in May 1991, when Tracey and Margo were residents of Florida. The SSA obtained information from the prior file, which contained statements from Tracey that she had not used Ronald's surname because they were not married. There were also statements from a friend who noted that Tracey did not want to marry Ronald. The friend also noted that Ronald and Tracey had an argument and Ronald had kicked Tracey out of the house a few days before he committed suicide. Tracey also informed the SSA that Ronald did not acknowledge that Margo was his child because he did not know Tracey was pregnant at the time of his death. In the 1991 application, Tracey acknowledged that Margo does not meet the requirements to be entitled on Ronald's record, but was advised by an attorney to file again nevertheless. This application was denied by the SSA in June 1991, as there was no new and/or material evidence to show that the previous denial was incorrect.

In September 1999, Tracey filed a Petition to Establish Paternity and Legitimization (Petition) in the Superior Court of Charlton County, Georgia. Tracey states that she is a resident of Charlton County, Georgia. The Petition incorrectly states that Ronald was killed on April 24, 1982. The Petition further states that Tracey and Ronald "were common law married under the laws of the States of Oklahoma and Georgia, which they has (sic) resided in both." On this basis alone, it was requested that Margo be found the child of Ronald and Tracey. The undersigned contacted Tracey's attorney, Kenneth. According to Ronald, only Tracey and Margo testified at the hearing, and the Guardian Ad Litem for Margo gave a report. On November 15, 1999, Stephen, Judge, Superior Court of Charlton County, Georgia, signed an Order Establishing Paternity and Legitimization, prepared by Margo. This Order states that Margo was born as issue of a common law marriage established under the States of Oklahoma and Georgia, and was therefore the biological and legitimate child of Ronald.

On December 13, 1999, Tracey filed the current application for surviving child's benefits on behalf of Margo. In that application, Ms. P~ incorrectly states that "no previous application has been filed with the Social Security Administration for whom this application is being filed." Ms. P~ also noted that only her parents show an active interest in Margo. Ronald's parents are not listed.

On June 27, 2000, Tracey wrote a letter to a United States Representative from Jacksonville, Florida. Tracey indicated that she was now living in Yulee, Florida. She states in this letter, "When I was twenty years old, I was engaged to be married and pregnant. Six months pregnant my fiancé was killed in an automobile accident...."

The Social Security Act provides that in determining whether an applicant is the child of a fully insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A). Thus, eligibility for Social Security benefits depends on whether the individual would inherit under the law of intestate succession in the state where decedent was domiciled. In this case, Oklahoma law controls because Ronald was domiciled in Oklahoma at the time of his death. Id.

An issue of a valid marriage is entitled to inherit under the law of intestate succession in Oklahoma. 84 Okl. St. Ann § 213. The Oklahoma statutes further provide that a child conceived during a valid marriage, but not born at the time of the father's death, is deemed an existing person for inheritance purposes if subsequently born alive within ten (10) months after the death of the father. 15 Okla. St. Ann. § 15; 10 Okla. St. Ann. § 2. Likewise, Georgia statutes provide that all children, including issue of a common law marriage, are legitimate if born in wedlock or within the usual period of gestation thereafter. Ga. St. Ann. 19-7-20; 1958-1959 Op. Att'y Gen. p. 89.

To establish entitlement to surviving child's benefits as a dependent child, Margo must meet one of four provisions found at § 216(h) of the Social Security Act, 42 U.S.C. § 416(h). In the present case, Tracey asserts that because Margo is the child of a valid common law marriage established under the laws of Oklahoma and Georgia, Margo is entitled to Social Security surviving child's benefits based on the first statutory alternative, found at 42 U.S.C. §§402(d)(3) and 416(h)(2)(B). These sections provide that the child of a valid or putative marriage is deemed to be dependent for support on the deceased wage earner and is thus eligible for surviving child's insurance benefits without the necessity of proving actual dependence. 42 U.S.C. §§402(d)(3) and 416(h)(2)(B). The alleged existence of a common law marriage was the only proof of paternity submitted to the Georgia State Court. Thus, Margo's claim for surviving child's benefits is dependent on the validity of the Georgia State Court's finding that a common law marriage was established in either Georgia or Oklahoma.

In Social Security Ruling 83-37c, which adopts the decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), the Social Security Administration explains when it is bound by state court decisions on family law issues. Although the Commissioner is not bound by a state court's decision in a proceeding to which he was not a party, the Social Security Administration must accept state court decisions where:

an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction;
this issue was genuinely contested before the state court by parties with opposing interests;
the issue falls within the general category of domestic relations law; and
the resolution by the state court is consistent with the law enunciated by the highest court of the State.

See Social Security Ruling 83-37c; Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973).

Whether or not the Georgia State Court was a court of competent jurisdiction is not entirely clear. The superior courts of Georgia have "subject matter" jurisdiction in all proceedings for the determination of paternity of children who are residents of the state. Ga. St. Ann. 19-7-40. However, it is unclear whether the superior court had "jurisdiction over the person" ("personal jurisdiction") of all the necessary parties in the present case. The Code of Georgia provides that a court may order service upon a person outside the state upon a finding that there is a constitutionally permissible basis for jurisdiction over the person, including those enumerated in Article 3, Chapter 11 of Title 19. Ga. St. Ann. 19-7-41. The relevant statute in Article 3, Chapter 11, is the State of Georgia's version of the Uniform Interstate Family Support Act, which lists eight methods a state court may exercise "personal jurisdiction" over a nonresident individual in a proceeding to establish or determine parentage. Ga-St-Ann. 19-11-110. However, this statute assumes that the putative father is alive and is silent as to the process for deceased putative fathers. It is important to note that the Court of Appeals of Georgia has held that the administrator of a deceased putative father's estate was a necessary party regardless of whether the proceeding was one to establish legitimization of a child or one to have a new birth certificate issued, or both. Ward v. Ward, 115 Ga. App. 778, 779, 782, 156 S.E.2d 210, 211, 213 (1967). Under Oklahoma law, when a person dies intestate with no known wife or children, the father or mother of the decedent is the administrator of the estate. 58 Okl. St. Ann. § 122. Both of Ronald's parents reported to the undersigned that they were not informed that Tracey and Margo had filed the Petition to Establish Paternity and Legitimization.

Thus, although it is unclear whether the Georgia State Court had obtained "personal jurisdiction" over all the necessary parties to issue the Order in the present case, this need not be conclusively resolved in light of the fact that the SSA need not accept the state court Order where the issue was not genuinely contested by parties with opposing interests, nor where resolution by the state court is consistent with the law enunciated by the highest court of the State. See Social Security Ruling 83-37c; Gray v. Richardson, supra.

Clearly, the issue of Ronald's paternity was not genuinely contested by parties with opposing interests. As noted above, only Tracey, Margo and the Guardian Ad Litem for Margo presented evidence in the state court proceeding which found that a common law marriage existed in Georgia and Oklahoma, and that Margo was an issue of that marriage.

Furthermore, as shown below, the findings of the Georgia State Court that a valid common law marriage existed in Georgia and Oklahoma are contrary to the evidence as a whole and not binding on the SSA because they are not consistent with the law enunciated by the highest court of the State.

The State of Georgia no longer allows individuals to enter into common law marriages; however, otherwise valid common law marriages entered into prior to January 1, 1997 are continued to be recognized. Ga. St. Ann. 19-3-1.1. To have established a valid common law marriage in Georgia prior to January 1, 1997, there must be (1) parties able to contract, (2) an actual contract of marriage where the husband and wife agree to live together as man and wife and they hold themselves out to the world as married, and (3) consummation by cohabitation in Georgia. Ga. St. Ann. 19-3-1 (1999); Georgia Osteopathic Hosp. V. O~ 198 Ga. App. 770, 777-78, 403 S.E.2d 235, 243-44 (1991); Kersey v. Gardner, 264 F. Supp. 887, 889 (M.D. Ga. 1967). There is no credible evidence demonstrating that Ronald and Tracey ever held themselves out as married, and cohabitated in the State of Georgia. Thus, Ronald and Tracey did not establish a common law marriage in Georgia.

When a common law marriage is alleged to have been established in another state, the State of Georgia will apply the law of that other state in determining whether a valid common law marriage exists. Ga. St. Ann. 24-7-24(a)(2). In the present case, it was alleged that a common law marriage was established in Oklahoma. Under Oklahoma Law, a party asserting a common law marriage must prove the following elements with clear and convincing evidence: (1) an actual and mutual agreement between the spouses to be husband and wife, (2) a permanent relationship, (3) an exclusive relationship proved by cohabitation as man and wife, and (4) the parties to the marriage must hold themselves out publicly as husband and wife. Estate of Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla.1983) (citing Matter of Phifer's Estate, 629 P.2d 808 (Okla. Ct. App. 1981)).

There is no credible evidence that Ronald and Tracey had an actual and mutual agreement to be husband and wife, or that they held themselves out publicly as husband and wife. The senior Mr. V~ reported on his son's death certificate that his son was never married and was a resident of Oklahoma. The senior Ronald further noted that his son always lived in Oklahoma and did not live in Georgia with Tracey.

Tracey's prior admissions further show that when she filed Margo's second application for surviving child's benefits, she knew that she did not meet the requirements to be entitled on Ronald's record. Tracey also admitted that she did not use Ronald's surname because she did not consider herself married to him, and there was evidence from a friend showing that Tracey did not want to marry Ronald. Even as late as the June 27, 2000, letter to her United States Representative, Tracey states that she was only engaged to be married. No common law marriage exists when a couple refers to themselves as engaged to be married; an agreement to marry in the future is not sufficient. In re Estate of Wilson, 236 Ga. App. 496, 496, 512 S.E.2d 383, 385 (1999); In re Gray's Estate, 119 Okla. 219, ____, 250 P. 422, 425 (1926). "A mere promise of future marriage, followed by illicit relations, is not a common law marriage." Wheaton v. State, 185 P.2d 931, 937, 85 Okla. Crim. 132, 143-44 (Okl. Cr. App. 1947). Finally, there is no evidence Ronald ever indicated to his family that he considered himself married to Tracey.

Ronald and Tracey also did not have a permanent relationship, and it is questionable whether they had an exclusive relationship. The evidence shows that Tracey’s brother, Raymond, reported that Ronald and Tracey only lived together for a short period of time in Oklahoma and that Tracey may have had sexual relationships with other men. Evidence from the prior applications also show that Ronald had kicked Tracey out of his house a few days before he died.

The overwhelming evidence shows a common law marriage could not have been entered in Georgia because Ronald never resided there, nor in Oklahoma because Tracey believed, at the most, to be engaged to Ronald at the time of his death, and they did not hold themselves out as husband and wife to family and friends. Therefore, it is unlikely the highest court of Georgia would have found a valid common law marriage existed in either Georgia or Oklahoma based on these facts. In re Estate of W~, 236 Ga. App. 496, 496, 512 S.E.2d 383, 385 (1999) (No common law marriage exists when a couple does not hold themselves out as husband and wife and refer to themselves as engaged to be married). The SSA therefore, need not accept the Georgia State Court Order finding that Margo was an issue of a valid common law marriage between Tracey and Ronald. The Georgia State Court Order would only be considered along with the other evidence before the Administration. Kersey v. Gardner, 264 F. Supp. 887, 890 (M.D. Ga. 1967).

Based on the foregoing discussion, it is our conclusion that the SSA is not bound by the Order because it was not genuinely contested before the state court by parties with opposing interests, and the state court's Order is not consistent with the law enunciated by the highest court of the State.

Tina M. Waddell
Regional Chief Counsel

By:
Christopher C~
Assistant Regional Counsel

K. PR 01-019 Entitlement to Child's Benefits Based on Genetic Test Results, Georgia - Zavyira , SS# ~

DATE: July 12, 2000

1. SYLLABUS

Georgia law permits testing of the putative father's surviving relatives for purposes of establishing a rebuttable presumption of paternity (97% probability) for inheritance purposes.

2. OPINION

You have requested our opinion as to whether Zavyira is entitled to child's benefits based on the earnings record of deceased number holder (NH) Robert , SS# ~. It is our opinion that, under Georgia law, the NH may be presumed to be Zavyira's father based on the results of genetic tests performed on the NH's parents.

The facts presented are that on March 7, 2000, Nicole applied for benefits on behalf of her child, Zavyira. The NH died domiciled in Georgia on August 23, 1998. Zavyira was born on March. Nicole presented genetic test results dated November 10, 1999, as evidence of the relationship between Zavyira and the NH. The DNA Grandparentage Testing interpretation by Genetica DNA Laboratories, Inc., states that the alleged paternal grandparents, Robert, and Linda, cannot be excluded as the biological paternal grandparents of Zavyira. Based on testing results obtained from analyses of 5 different DNA probes, the probability of grandparentage is 99.99%.

Ga. Code Ann. § 53-2-3(2)(B)(ii) provides for the inheritance of a child born out of wedlock:

There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity. Parentage-determination genetic testing shall include, but not be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes.

The statute further provides that if the presumption of paternity set forth in subparagraph (B) is established and is not rebutted by clear and convincing evidence, a child born out of wedlock may inherit in the same manner as though legitimate.

Section 53-2-3(2)(B)(ii) does not limit genetic testing to the putative father. In fact, the statute appears to contemplate genetic testing of the putative father's surviving relatives because a different but virtually identical statute, § 19-7-46(b), is applied in paternity proceedings conducted during the putative father's lifetime. Section 19-7-46(b) also provides for a rebuttable presumption based on genetic testing establishing at least a 97 percent probability of paternity.

While Georgia provides specific accreditation requirements for genetic testing conducted in connection with paternity proceedings (§§ 19-7-43, 19-7-45, and 19-7-46), we do not find statutory or case law support for extending these requirements to genetic tests conducted in connection with establishing inheritance rights pursuant to § 53-2-3. The Georgia Supreme Court wrote in Sardy v. Hodge, 448 S.E. 2d 355, 356 (1994), cert. denied 513 U.S. 1191 (1995), that a condition for establishing inheritance rights (under the former § 53-4-4) "is satisfied by filing with the appropriate court results of genetic testing establishing at least a 97 percent probability of paternity (a rebuttable presumption of paternity), and the same is not overcome by clear and convincing evidence."

Thus, it is our opinion that, based on grandparentage genetic test results, Zavyira has established a rebuttable presumption of the NH's paternity. In the absence of clear and convincing evidence rebutting the presumption of paternity, Zavyira may inherit from the NH through intestate succession, and would be entitled to child's benefits pursuant to 42 U.S.C. § 416(h)(2)(A).

L. PR 85-023 Issue of Interpretation of Georgia Intestacy Statute - Robert (DWE) ~

DATE: October 2, 1985

1. SYLLABUS

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS — GEORGIA

DISTINCTIONS BETWEEN STATUTES OF LEGITIMATION AND INHERITANCE — GEORGIA

Under Georgia law, an illegitimate child whose father died prior to April 1, 1980 is not entitled to an intestate child's share of his deceased father's estate if there could have been an adjudication of paternity during the decedent's lifetime notwithstanding any unconstitutionality in Georgia's pre-1980 statutory intestacy scheme relating to the rights of illegitimate children to inherit from their fathers. Poulos v. McMahan, 297 S.E.2d 451 (1982).

(Robert (DWE) - SSN~ - RAIV [W~] - to Asso.Comm., RSI, Atl., 09/27/85)

2. OPINION

In your memorandum you asked whether the illegitimate children of Robert namely Daphney and Angela, would be entitled to an intestate share of Robert personal property under the Georgia law in effect when the insured died on February 10, 1980.

Section 216(h) (2) (A) of the Social Security Act, as amended (42 U.S.C. §416(h) (2) (A)), provides that an applicant is the child of a deceased insured individual if the courts of the state in which the insured was domiciled at the time of his death would .find such applicant entitled to an intestate child's share of the insured's estate. Clearly, it is the state inheritance law in effect at the time of the insured's death which is to be applied. 20 C.F.R. §404.354(b).

The insured, Robert , died domiciled in Georgia on February 10, 1980. His two children, Daphney and Angela, were born in 1969 and 1970, respectively. Consequently, Georgia's intestacy law in effect when the insured died on February 10, 1980, is applicable in determining the rights of these two children to an intestate share of the insured's personal estate.

On the date of the insured's death and prior to April 1, 1980, Georgia granted illegitimate children no inheritance rights against their father's estates. See former Ga.Code Ann. §113-904 (Ga.L. 1816, C~, 293; as amended., Ga.L. 1855-6, p. 228); Cooper v. Melvin, 223, Ga. 239, 154 S.E.2d 373 (1967). However, an illegitimate child was rendered fully legitimate by the marriage of the mother and the father together with the recognition by the father that the child was his. Ga.Code Ann. §§74-101, 74-201; Morris, 71 Ga. App. 470(2), 31 S.E.2d 93 (1944). Furthermore, the father could also render his child legitimate, at least for inheritance purposes, by filing a petition in the Superior Court of the father's residence. Ga.Code Ann. §74-103; Hicks v. Smith, 94 Ga. 809, 22 S.E. 153 (1894).

Effective April 1, 1980, however, Ga.Code Ann. §113-904 was amended likely in response to Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) and Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). As a result of this amendment, an illegitimate child is now permitted to inherit from his natural father provided that during the father's lifetime and after the conception of his illegitimate child one of the following occurs: (1) a court of competent jurisdiction has entered an order declaring the child to be legitimate pursuant to Official Code of Ga.Ann. §19-7-22 (Michie 1982), Ga.Code Ann. §74-103 (Harrison Supp. 1984) or such other authority as may be provided by law, or (2) a court of competent jurisdiction has otherwise entered a court order establishing the father of the illegitimate child. Official Code of Ga.Ann. §53-4-4(c) (Michie 1982), Ga.Code Ann. §113-904(c) (Harrison Supp. 1984).

The Georgia Supreme Court in Poulos v. McMahan, 297 S.E.2d 451 (November 30, 1982), being fully aware of Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982) which had declared Georgia's pre-1980 inheritance statute to be unconstitutional, had occasion to consider the inheritance rights of illegitimates whose fathers died prior to April 1, 1980, the effective date of the amended Ga.Code Ann. §113-904. In P~, an alleged illegitimate child of a decedent who died on June 16, 1979 filed a petition seeking to caveat the probate of the decedent's will. The child, born on November 24, 1973, alleged the decedent was his natural father and complained that the will did not contain any distribution in favor of the child. He also contended that the will was the product of undue influence by the decedent's wife. The Probate Court ruled that the plaintiff was the child of the deceased but denied the petition for lack of evidence of undue influence. The Superior Court granted a motion for summary judgment by the deceased's wife on the grounds the plaintiff, as the illegitimate child, could not inherit from the decedent under the intestacy laws in effect at the time of the decedent's death. On appeal, the Supreme Court of Georgia affirmed the Superior Court decision that the illegitimate child had no inheritance rights under Georgia's pre-1980 statutory intestacy scheme. The P~ court agreed that Georgia's pre-1980 intestacy scheme was unconstitutional because it excluded significant categories of illegitimates whose inheritance rights could be recognized without jeopardizing the orderly administration of estates. The P~ court concluded, however, that the subject illegitimate did not fit within such a category because there could have been an adjudication of paternity during the lifetime of the natural father. Specifically, the P~ court reasoned that an adjudication of paternity could have been obtained during the natural father's lifetime through a civil action for child support or by charging the natural father with the offense of abandonment.

Accordingly, the P~ court held that where Georgia's pre-1980 statutory intestacy scheme would be applicable in determining the inheritance rights of an illegitimate, such illegitimate will be denied a child's share of his natural father's estate if there could have been an adjudication of paternity before the natural father died notwithstanding any unconstitutionality in Georgia's pre-1980 statutory intestacy scheme as it related to rights of illegitimate children to inherit from their father. The requirement of an "adjudication of paternity during the father's lifetime" would be satisfied under P~ if such adjudication were made under Georgia law incident to abandonment or bastardy proceedings or any type of child support action to include the Uniform Reciprocal Enforcement of Support Act.

In P~, the child was approximately five and one-half years old when his father died. There were no circumstances in P~ which would have prevented an adjudication of paternity on behalf of the child within those five and one-half years. Under such circumstances, the P~ court applied the pre-April 1, 1980 intestacy law and barred inheritance.

In the present case, the deceased insured's two children, Daphney and Angela, were approximately eleven and ten years old, respectively, when their father died on February 10, 1980. There are no facts or circumstances in the file which would have prevented the adjudication of paternity on behalf of these children during the ten-year period prior to their father's death. Under these circumstances, P~ requires the application of the pre-April 1, 1980 inheritance law which denies the illegitimates, Daphney and Angela, from asserting inheritance rights against the estate of the deceased insured.

With regard to the Georgia entry in the Program Operations Manual System (POMS) GN 00306.135 (Digest of State Laws on Legitimation and Inheritance Rights), it is the recommendation of this office that the Georgia entry 4(I) reflect the recodification of the Georgia statutes and include an additional statutory phrase. It is recommended that 4(I) be amended as follows: (the new language is underlined)

4(I) effective 4/1/80, during the lifetime of the father and after conception of the child, a court of competent jurisdiction has entered an order declaring the child to be legitimate under authority of Official Code of Ga.Ann. §19-7-22, Ga.Code Ann. §74-103, or such other authority as may be provided by law, or a court of competent jurisdiction has otherwise entered a court order establishing the father of the child.

M. PR 84-026 Robert (DNH) ~ - Claimant: Bertha for Cassandra - Determination of Legal Status of Child Under Georgia State Law

DATE: May 21, 1984

1. SYLLABUS

LEGITIMACY AND LEGITIMATION — LEGITIMATING ACTS BY PARENTS — GEORGIA

Under Georgia law, an illegitimate child whose father died prior to April 1, 1980 is entitled to a child's share of the deceased father's estate provided there was an adjudication of paternity during the father's lifetime. Poulos v. McMahan, 297 S.E.2d 451 (1982).

(Robert (DNH), - RAIV [W~], to Asst. Reg. Comm., Progs., Atl., 05/15/84)

2. OPINION

In your memorandum you have asked whether an order by a Georgia Superior Court judge directing the name of the illegitimate child-applicant's father appearing on the child-applicant's birth certificate be changed to that of the wage earner renders such applicant a child of the wage earner for purposes of Section 216(h)(2)(A) of the Social Security Act.

The file reflects that the child-applicant was born on December. The designated father appearing on that child's birth certificate was Johnny. At the time of the child's birth, her mother was not married but was allegedly living with the wage earner, Robert. The child's mother had been married to Johnny but he died sometime in 1974. On June 20, 1976, the wage earner died. In October 1982, the child's mother, on behalf of the child, filed in the Superior Court of Emanuel County, Georgia, a verified petition for Correction of the Birth Certificate of the subject child, Cassandra. In an order dated November 12, 1982, the Superior Court judge issued an order directing that the birth certification records of said child be changed to show the full name of the subject child as Cassandra rather than Cassandra. Further, the court ordered that such records show that said child's natural father was Robert rather than Johnny .

Pursuant to Official Code of Ga.Ann. §31-10-23(C)(1), an order from a Georgia Superior Court is necessary to change the paternity designation on a birth certificate. The court's order must specifically state the name to be removed and the name to be added. The subject court order issued by the Emanuel County Superior Court dated November 12, 1982 names the wage earner, Robert, as the natural father of the child-applicant and appears to conform with the statutory requirements set out in Official Code of Ga.Ann. §31-10-23(c)(1). Assuming arguendo that the Superior Court properly determined paternity in this matter in both law and fact for purposes of changing the child's birth certificate, a paternity adjudication for such purpose does not cloak such child with inheritance rights under Georgia law or for purposes of Section 216(h)(2)(A) of the Social Security Act.

Effective April 1, 1980, Ga.Code Ann. §113-904 was amended likely in response to Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) "and Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). Pursuant to this amendment an illegitimate child is now permitted to inherit from his natural father provided that during the father's lifetime and after the conception of his illegitimate child one of the following occurs: (1) a court of competent jurisdiction has entered an order declaring the child to be legitimate pursuant to Ga.Code Ann. §74-103 or such other authority as may be provided by law, or (2) a court of competent jurisdiction has otherwise entered a court order establishing the father of the illegitimate child. Ga. Code Ann. §113-904.

Prior to 1980, however, Georgia granted illegitimate children no inheritance rights against their father's estates. See former Ga. Code Ann. §113-904 (Ga.L. 1816, Cobb, 293; as amended, Ga.L. 1855-6, p. 228); Cooper v. Melvin, 223, Ga. 239, 154 S.E.2d 373 (1967). However, an illegitimate child was rendered fully legitimate by the marriage of the mother and the father together with the recognition by the father that the child was his. Ga. Code Ann. §§74-101, 74-201; Morris V. D~, 71 Ga. App. 470(2), 31 S.E.2d 93 (1944). Furthermore, the father could also render his child legitimate, at least for inheritance purposes, by filing a petition in the Superior Court of the father's residence. Ga. Code Ann. §74-103; Hicks v. Smith, 94 Ga. 809, 22 S.E. 153 (1894).

The Georgia Supreme Court in Poulos v. McMahan, 297 S.E.2d 451 (November 30, 1982), being fully aware of Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982) which had declared Georgia's pre-1980 inheritance statute to be unconstitutional, had occasion to consider the inheritance rights of illegitimates prior to April 1, 1980. In P~, an alleged illegitimate child of a decedent who died on June 16, 1979 filed a petition seeking to caveat the probate of the decedent's will. The child, born on November 24, 1973, alleged the decedent was his natural father and complained that the will did not contain any distribution in favor of the child. He also contended that the will was the product of undue influence by the decedent's wife. The Probate Court ruled that the plaintiff was the child of the deceased but denied the petition for lack of evidence of undue influence. The Superior Court granted a motion for summary judgment by the deceased's wife on the grounds the plaintiff, as the illegitimate child, could not inherit from the decedent under the intestacy laws in effect at the time of the decedent's death. On appeal, the Supreme Court of Georgia affirmed the Superior Court decision that the illegitimate child had no inheritance rights under Georgia's pre-1980 statutory intestacy scheme. The P~ court agreed that Georgia's pre-1980 intestacy scheme was unconstitutional because it excluded significant categories of illegitimates whose inheritance rights could be recognized without jeopardizing the orderly administration of estates. The P~ court concluded that the illegitimate did not fit within such a category because there could have been but was not an adjudication of paternity during the lifetime of the natural father. Specifically, the P~ court reasoned that an adjudication of paternity could have been obtained during the natural father's lifetime through a civil action for child support or by charging the natural father with the offense of abandonment.

Accordingly, the P~ court held that where Georgia's pre-1980 statutory intestacy scheme would be applicable to the inheritance rights of an illegitimate, such illegitimate will be denied a child's share of his natural father's estate if there was no adjudication of paternity before the natural father died notwithstanding any unconstitutionality in Georgia's pre-1980 statutory intestacy scheme as it related to rights of illegitimate children to inherit from their father. The requirement of an "adjudication of paternity during the father's lifetime" would be satisfied under P~ if such adjudication were made under Georgia law incident to abandonment or bastardy proceedings or any type of child support action to include the Uniform Reciprocal Enforcement of Support Act.

In the present matter, the child was born on December approximately six months before the wage earner's death on June 20, 1976. Accordingly, the child's inheritance rights are governed by the pre-April 1, 1980 Georgia inheritance law. Since there is no evidence that the wage earner complied with the statutory law then in effect conferring inheritance rights upon the child and in the absence of any adjudication of paternity during the wage earner's lifetime as required by P~, the illegitimate child would not be entitled to a child's share of the wage earner's estate under the pre-April 1, 1980 intestacy law of Georgia. Therefore, it is the opinion of this office that the subject child would not qualify as a child of the wage earner for purposes of Section 216(h)(2)(A) of the Social Security Act.

However, it is significant to note that the wage earner died about six months after the child was born. There are some recent decisions in which the courts have found a denial of equal protection where a State statutory inheritance scheme created insurmountable obstacles to an illegitimate child. In Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982), the United States Supreme Court examined a Texas inheritance statute requiring a paternity proceeding be maintained within one year of the child's birth in order for such child to inherit from the putative father. The court determined that the Texas statute imposing a one year time period for a paternity action was too short and unconstitutional constituting a denial of equal protection. In Handley v. Schweiker, 697 F.2d 999 (11th Cir. 1982), the court relied heavily upon the Mills rationale and found an Alabama intestacy statute requiring a paternity proceeding to be maintained during the father's lifetime to be a denial of equal protection as applied to the subject illegitimate child. In H~, the father died within four months after the illegitimate child's birth and had been in a coma four months prior to the child's birth and remained in such a coma until he died. Although specifically not imposing any minimal time after birth of an illegitimate child for bringing a paternity proceeding, the H~ court concluded that under M~ a time period of less than one year is insufficient as a matter of law for procuring a paternity adjudication. H~, however, has been limited to its specific facts. (Alabama Legitimation and Inheritance Law - POMS GN T00306.135 - Handley v. Schweiker, - RAIV [W~], to Asso. Comm., OPP, 11/18/83). Although the Social Security Administration has non-acquiesced in H~, the equal protection issue will likely be raised as a constitutional issue in future cases involving the illegitimate's inheritance rights where the putative father dies at least within a year of the illegitimate child's birth.

By:

CARL H. H~
Regional Attorney

DENNIS R. W~
Assistant Regional Attorney

N. PR 84-024 Early (DNH) - ~ - State Law Regarding Legitimacy of Child Born Before Void Marriage - Georgia

DATE: May 17, 1984

1. SYLLABUS

LEGITIMACY AND LEGITIMATION — CHILD OF VOID OR VOIDABLE MARRIAGE — GEORGIA

LEGITIMACY AND LEGITIMATION — LEGITIMATING ACTS BY PARENTS — GEORGIA

Under Georgia law, where the Administration finds that the wage earner entered into a void common-law marriage prior to his death and the children were born to wage earner and mother of said children prior to the date of the void marriage, held children legitimated and entitled to benefits under Title II of the Social Security Act, all other eligibility requirements being met. See opinion, Hubert - ~ - Region IV [K~], to R.Rep., SSA, Atl., 08/30/65.

(Early (DNH) - RAIV [J~] - to Dir., Ins. Progs. Br., Atl., 05/17/84)

2. OPINION

In your memorandum you asked whether a child born in Georgia before the parents entered a void common-law marriage relationship could be considered the legitimate child of the deceased wage earner.

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

Earl , the child applicant was born June. According to Pauline , she and the decedent, Early , began living as common-law husband and wife on July 4, 1967 and lived as such until around June 1979. Pauline stated she believed their marriage was legal since she had never been married. However, she stated that she did not know that the decedent had a prior undissolved marriage until she attempted to file for a divorce.

The information which you are seeking was supplied in an earlier memorandum. In the opinion of Hubert - ~ - Region IV [K~], to R.Rep., SSA, Atl., 08/30/65, (copy attached hereto), it was held that where the Administration finds that the wage earner entered into a void common-law marriage prior to his death and where the children were born to wage earner and mother of said children prior to the date of the void common-law marriage, the children will be considered legitimate and entitled to benefits under Title II of the Act, if they meet all the other eligibility requirements.

The above stated position was reached by our office interpreting the holdings of Campbell v. Allen, 208 GA. 274 66 S.E.2d 226 (1951) and Brazziel v. Spivey, 219 GA. 445, 133 S.E.2d 885 (1963). In C~, supra, the Supreme Court of Georgia held that a child of a bigamous common-law marriage, born before such marriage was annulled or declared void by a court, was the legitimate and lawful heir of his deceased father. In B~, supra, the Supreme Court construing Ga. Code Ann. ~~ 53-104, 74-201 and 74-101, held that children born as the issue of parents who went through a marriage ceremony unaware that the mother's previous marriage had not been dissolved by divorce were to be considered legitimate in a habeas corpus proceeding by the mother against the father for the custody of the children. Our office believed that the Supreme Court of Georgia would hold that where illegitimate children were born as the result of a meretricious relationship but the parents thereafter enter into a common-law marriage unaware of the legal impediment to such marriage, the children even though born prior to the common-law marriage and despite that such marriage was void, would be legitimated pursuant to Section 74-101.

There has not been a change in Georgia law since this opinion was written, therefore, we believe our interpretation of Georgia law to be correct.

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

By:

CARL H. H~
Regional Attorney

JOHN J~
Assistant Regional Attorney

O. PR 84-023 Legitimation and Inheritance Law - Cox v. Schweiker

DATE: May 14, 1984

1. SYLLABUS

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS — GEORGIA

(Georgia Legitimation and Inheritance Law - RAIV [W~], to Asso. Comm., OPP, Balt., 05/14/84)

2. OPINION

In your memorandum you asked us to provide language for a revised Georgia entry of Program Operations Manual System (POMS) GN 00306.135 following the August 28, 1982 decision in Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982). Looking to the law in effect in Georgia on October 19, 1977, when the application for child's benefits was filed, the court in Cox declared the application of Ga. Code Ann. §§74-101 and 74-103 governing inheritance by illegitimates to be unconstitutional. However, at the time of the decision in C~ (August 30, 1982), the Georgia legislature had already amended the inheritance law applicable to illegitimates effective April 1, 1980. Ga. Code Ann. §113-904. Under this new law, an illegitimate child may inherit from or through his father if during the father's lifetime a court of competent jurisdiction has entered an order declaring the child to be legitimate pursuant to Ga. Code Ann. §74-103 or a court of competent jurisdiction has otherwise entered a court order establishing the father of the illegitimate child. You have specifically asked us to provide language for changing the above-referenced POMS entry to reflect the applicable law for the period prior to April 1, 1980.

After the decision in Cox, the Georgia Supreme Court in Poulos v. McMahan, 297 S.E.2d 451 (November 30, 1982), being fully aware of Cox, had occasion to consider the inheritance rights of illegitimates prior to April 1, 1980. The issue presented in P~ is the same issue you have presented to us. In P~, an alleged illegitimate child of a decedent who died on June 16, 1979 filed a petition seeking to caveat the probate of the decedent's will. The child, born on November 24, 1973, alleged the decedent was his natural father and complained that the will did not contain any distribution in favor of the child. He also contended that the will was the product of undue influence by the decedent's wife. The Probate Court ruled that the plaintiff was the child of the deceased but denied the petition for lack of evidence of undue influence. The Superior Court granted a motion for summary judgment by the deceased's wife on the grounds the plaintiff, as the illegitimate child, could not inherit from the decedent under the intestacy laws in effect at the time of the decedent's death. On appeal, the Supreme Court of Georgia affirmed the Superior Court decision that the illegitimate child had no inheritance rights under Georgia's pre-1980 statutory intestacy scheme. The P~ court agreed that Georgia's pre-1980 intestacy scheme was unconstitutional because it excluded significant categories of illegitimates whose inheritance rights could be recognized without jeopardizing the orderly administration of estates. The P~ court concluded that the illegitimate did not fit within such a category because there could have been but was not an adjudication of paternity during the lifetime of the natural father. Specifically, the P~court reasoned that an adjudication of paternity could have been obtained during the natural father's lifetime through a civil action for child support or by charging the natural father with the offense of abandonment.

This office has been recently instructed by the Social Security Division Office of General Counsel, to limit the C~ decision to its specific facts and to resolve all other cases involving an illegitimate's inheritance rights under the pre-1980 Georgia intestacy scheme in accordance with the P~ decision.

Since the P~ decision and our instructions regarding its application in light of C~ have occurred subsequent to your memorandum and, therefore, were obviously not considered in your apparent policy decision to change the Georgia POMS entry, a POMS change based upon the C~ decision would not appear appropriate under the circumstances. However, you may want to consider an amendment to the POMS governing those cases involving Georgia's pre-1980 statute as a result of the P~ decision. It is our recommendation that such POMS state that whenever an application for child's benefits involves the inheritance law in effect in Georgia prior to April 1, 1980, the case should be referred to the Regional Attorney, Region IV.

P. PR 82-029 Herman , Legitimation in the State of Georgia

DATE: July 22, 1982

1. SYLLABUS

LEGITIMATION a/o ACKNOWLEDGEMENT a/o RECOGNITION — State Requirements and Evidence - GEORGIA

Under Georgia law, the marriage of the mother and reputed father of the illegitimate child and the recognition by the father of the child, here by signing the child's birth certificate, render the child legitimate. The reputed father's subsequent denial of paternity is not legally sufficient to revoke the legitimating act.

(Herman , ~ , Legitimation in the State of Georgia, RA IV (W~) to Dir., IPB, 7/22/82)

2. OPINION

You have requested our opinion on the issue of the legitimation of the child in this case, Jamie. While it appears that the number holder's actions were sufficient to legitimate the child under Georgia law, he maintains, and submits evidence to support his contention, that he is not the biological father.

The facts, as contained in the file, are that the first husband of Dolly died February 13, 1968. Her child, Jamie, was born January. Herman and Dolly were ceremonially married in Georgia on November 1, 1971. The father of Jamie is shown on her birth certificate as Herman signed the Georgia birth certificate. Said birth certificate was apparently filed February 5, 1970, and there is no indication on its face that the birth certificate was amended or corrected.

Herman filed a divorce complaint in Superior Court against Dolly ; paragraph 5 of the complaint stated, "That there are no minor children born as issue of this marriage." In her answer, Dolly admitted paragraph 5, but stated in item 3 that, "...plaintiff adopted Jamie , born January". On March 4, 1975, a Final Judgment and Decree of Divorce was issued ending the marriage of Herman and Dolly. In the final decree, it was ordered that Dolly , "...shall relinquish and waive all claims and all rights she has or may have had against the plaintiff for support and maintenance of the minor child, Jamie ."

Herman applied for retirement insurance benefits on August 11, 1980. On his application, he stated he had no children. Following his entitlement, an application for child's insurance benefits dated December 2, 1980, was filed on behalf of Jamie. In a statement dated January 22, 1981, Herman enied paternity stating that he did not meet Dolly until 1971, after his first wife died, and at that time Dolly already had the child, Jamie. Herman's brother Lee gave a statement reiterating this information. Dolly gave a statement dated January 21, 1981, certifying that she met Herman before Christmas of 1968 and saw him regularly until his wife died in 1971. Thereafter, they saw each other openly and were married in November of that year.

A search of records in Glynn County, Georgia, revealed no legitimation or adoption proceedings regarding Jamie. A search for legitimation papers for Jamie at the State of Georgia Bureau of Vital Statistics in Atlanta, Georgia, revealed only her birth certificate.

Although the evidence indicates Jamie was not adopted by Herman , it appears that she was legitimated by the marriage of Herman and Dolly . Ga. Code Ann. §74-101 provides, "The marriage of the mother and reputed father of an illegitimate child and the recognition by the father of the child as his shall render the child legitimate; in such case the child shall immediately take the surname of his father." The law does not state that the father must be shown to be the biological parent; the law merely specifies that the "reputed father" must recognize paternity.

In this claim, Herman and Dolly were married on November 1, 1971, approximately 22 months after the birth of Jamie on January. On Jamie's birth certificate, which appears to have been filed February, Herman is shown to be the father of the child. He signed his name where "Informant's signature' was indicated and his relationship to the child was again stated as "father". Thus, the marriage of Jamie's mother to Jamie's reputed father, Herman's recognition of Jamie on her birth certificate as his child have fully legitimated Jamie . It is noted that case law has determined that a father may legitimate a child even though the father was married to a woman other than the child's mother at the time of conception. In re, P~, 131 Ga. App. 259, 205 S.E. 2d 522 (1974).

Herman now denies his earlier recognition of paternity and seeks to revoke the legitimating act. Although we could not find any Georgia cases on this point, it is generally recognized that once the alleged father has recognized and acknowledged an illegitimate child as his own in accordance with the statutory requirements, such recognition and acknowledgment may not thereafter be revoked by any subsequent act or denial by the parent. 10 Am. Jur. 2d, Bastards § 57; 33 A.L.R. 2d, 714 § 3. Georgia law provides for termination of the parent-child relationship by court order for the protection of the child and by the parent's consent to adoption. There is no indication that the state of Georgia would recognize a denial of paternity as legally sufficient to revoke the father's earlier `- imating acts of intermarriage and recognition.

The divorce action between Dolly and Herman does not adversely affect the child's status. In his divorce complaint at paragraph 5, Herman averred, "that there are no minor children born as issue of this marriage.' This, apparently, is a correct statement inasmuch as Jamie was clearly conceived and born out of wedlock. In her answer, Dolly admitted paragraph 5 of the complaint, but stated, at item 3 that Herman had adopted Jamie. However, as noted earlier, record searches have revealed no such adoption proceedings. In the Final Judgment and Decree at Item 2, Dolly relinquished and waived all claims and all rights she had or might have had against Herman for support and maintenance of the minor, Jamie . Inheritance rights were not the issue. The final decree does not indicate that the status of Jamie was determined, merely that support rights were waived. Waiver is defined as the voluntary and intentional relinquishment of a known right, claim, or privilege. Haygood v. Haygood, 190 Ga. 445, 9 S.E. 2d 834 (1940). Waiver and relinquishment of support rights cannot be construed as bastardizing the child. It is noted that even if the paternity of the child had been placed in issue in the divorce action and was adjudicated, the matter is res judicata between the husband and wife but generally the child is not concluded as to his legitimacy by the decree in that action since he ordinarily is not a party to the action 10 Am. Jur. 2d., Bastards § 7.

Thus, it is our opinion that Jamie was legitimized by the intermarriage of her mother and reputed father and recognition of paternity pursuant to Ga. Code Ann. § 74-101 . The number holder's subsequent denial of paternity is not legally sufficient to revoke the legitimating act.

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PS: Title XVI Regional Chief Counsel Precedents

POMS Reference

PR: Title II Regional Chief Counsel Precedents

A. PR 13-051 Presumption of Legitimacy and Use of Sibling DNA Testing to Rebut the Presumption and Establish Paternity – Georgia Claimant – Phalisa Number Holder – Jacob

1. SYLLABUS

2. OPINION

B. PR 09-122 Sufficiency of Genetic Testing on Number Holder's Mother to Determine Paternity Number Holder - Terrell Claimant - Terrell

1. SYLLABUS

2. OPINION

C. PR 09-024 Sufficiency of Genetic Testing to Meet State Intestacy Requirements When Test Results Show the Child is the Grandchild of the Number Holder's Parents - Georgia

1. SYLLABUS

2. OPINION

D. PR 08-086 Sufficiency of Genetic Testing to Meet State Intestacy Requirements When Test Results Show a Relationship with Brother of the Deceased - Georgia]

1. SYLLABUS

2. OPINION

E. PR 06-358 Sufficiency of Genetic Testing to Meet State Intestacy Requirements When the Test Results Show a Half-Sibling Relationship with an Entitled Child - Georgia]

1. SYLLABUS

2. OPINION

F. PR 06-088 Termination Based Upon Genetic Testing, Georgia Number Holder - Jimmy (NH) Claimant - Deanna ]

1. SYLLABUS

2. OPINION

G. PR 06-087 Termination Based Upon Genetic Testing, Georgia Number Holders - Harry (NH) Claimant - Jordan ]

1. SYLLABUS

2. OPINION

H. PR 05-238 Whether an Oral Acknowledgment Can Constitute Clear and Convincing Evidence of Paternity under Georgia Intestacy Law]

1. SYLLABUS

2. OPINION

I. PR 05-221 DNA Testing Used to Establish a Parent-Child Relationship Between the Deceased Number Holder, Nicholas , and Shyah under Georgia Law

1. SYLLABUS

2. OPINION

J. PR 02-024 Whether a 1999 Georgia Court Order Finding the Child is the Biological and Legitimate Child Could Establish Paternity of a Wage Earner Who Died in Oklahoma in 1982 Before the Child was Born [NH Ronald , SSN ~]

1. SYLLABUS

2. OPINION

K. PR 01-019 Entitlement to Child's Benefits Based on Genetic Test Results, Georgia - Zavyira , SS# ~

1. SYLLABUS

2. OPINION

L. PR 85-023 Issue of Interpretation of Georgia Intestacy Statute - Robert (DWE) ~

1. SYLLABUS

2. OPINION

M. PR 84-026 Robert (DNH) ~ - Claimant: Bertha for Cassandra - Determination of Legal Status of Child Under Georgia State Law

1. SYLLABUS

2. OPINION

N. PR 84-024 Early (DNH) - ~ - State Law Regarding Legitimacy of Child Born Before Void Marriage - Georgia

1. SYLLABUS

2. OPINION

O. PR 84-023 Legitimation and Inheritance Law - Cox v. Schweiker

1. SYLLABUS

2. OPINION

P. PR 82-029 Herman , Legitimation in the State of Georgia

1. SYLLABUS

2. OPINION