QUESTION PRESENTED
Does the evidence establish that the claimant was the child of the insured number
holder for the purposes of child’s benefits under Title II of the Social Security
Act (the Act)?
BRIEF ANSWER
The evidence does not preclude a finding of a parent–child relationship for purposes
of determining entitlement to child’s benefits under Title II of the Act. However,
further development of the evidence is required.
SUMMARY OF FACTS On June XX, 2013, number holder S~ (NH) married S1~ in Washington state. On July
XX, 2013, S1~ gave birth to H~ (claimant). The claimant’s birth certificate lists
both S1~ and the NH as his parents.
The NH filed for child’s benefits for the claimant, relying on the NH’s marriage to
S1~. It is our understanding that the NH has not alleged that the claimant is her
stepchild.
ANALYSIS
Federal Law on Child’s Benefits Under Title II
Under the Act, an individual may be eligible for child survivor’s insurance benefits
if: (1) the individual is the “child” of the insured, as defined in the Act; and (2)
the individual was “dependent upon” the insured at the time of application. 42 U.S.C.
§ 402(d); 20 C.F.R. § 404.350. For the purposes of child’s insurance benefits, “child”
is defined as the natural child, legally adopted child, stepchild, or grandchild or
stepgrandchild of the insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); see also 20 C.F.R. §§ 404.350, 404.354-59.
Under one method for determining whether the claimant qualifies as the “child” of
an insured worker, the agency applies the law governing “the devolution of intestate
personal property by the courts of the State in which such insured individual is domiciled
at the time such applicant files” the application. 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.355(a)(1), (b) (if the insured is living, apply state law where insured
had permanent home at the time of the application); Program Operations Manual System
(POMS) GN 00306.001(C) (determining what state law applies). “The place where a man lives is properly
taken to be his domicile until facts adduced establish the contrary.” District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (citations omitted). Here, the NH’s wedding license shows
that the NH lives in Portland, Oregon. In the absence of any evidence to the contrary,
this opinion will assume that Oregon is the NH’s domicile.
State Law
Oregon law provides that, if a decedent dies intestate, her surviving spouse and any
issue shall receive a share of the intestate estate. Or. Rev. Stat. § 112.025 (2013).
“Issue” includes all lineal descendants, except those who are the lineal descendants
of living lineal descendants. Or. Rev. Stat. § 111.005(22). Thus, if the claimant
is the child of the NH, he would be able to inherit and would therefore be a “child”
under 42 U.S.C. § 416(h)(2)(A).
In establishing a parent–child relationship, a man is presumed to be the father of
a child born to a woman if he and the woman were married to each other at the time
of the child’s birth. Or. Rev. Stat. § 109.070. However, “for the presumption of parentage
to apply, it must be at least possible that the person is the biological parent of
the child.” Shineovich v. Shineovich, 214 P.3d 29, 36 (Or. App. 2009) (noting that statutory provisions refer to establishing
paternity). Thus, this presumption cannot apply to a same-sex couple.
Though the presumption of biological parentage is not available to same-sex couples,
parentage may be established if the child was conceived through artificial insemination.
The relationship, rights and obligation between a child born as a result of artificial
insemination and the mother’s husband shall be the same to all legal intents and purposes
as if the child had been naturally and legitimately conceived by the mother and the
mother’s husband if the husband consented to the performance of artificial insemination.
Or. Rev. Stat. § 109.243. In 2009, prior to Oregon’s permission for and recognition
of same-sex marriage, the Oregon Court of Appeals held that this provision must be
available to same-sex couples in a domestic partnership. Shineovich, 214 P.3d at 40.
The only other method to establish parentage when the purported parent is not biologically
related to a child is through adoption. Or. Rev. Stat. § 109.050; see Or. Rev. Stat. § 111.005(22) (including adopted children in definition of issue).
Application of Law to Facts
On June XX, 2013, the NH married the claimant’s mother, S1~, in Washington state.
On July XX, 2013, S1~ gave birth to the claimant. These facts do not preclude the
conclusion that the claimant is the child of the NH for the purposes of the Social
Security Act. However, further factual development is warranted before making a determination
in this case.
We first consider whether the claimant could inherit as the NH’s child under Oregon
intestacy law. Here, there is no allegation that the NH is the claimant’s biological
parent. However, evidence indicates that the NH and the claimant’s biological mother
were married at the time of the claimant’s birth and the NH is identified as a parent
on the claimant’s birth certificate. There is no evidence of a second legal, biological
parent. Absent evidence to the contrary, it appears possible that the claimant was
conceived by artificial insemination. If the claimant was conceived by artificial
insemination and the NH consented to the insemination, the decision in Shineovich and Or. Rev. Stat. § 109.243 would apply.
In making the decision in Shineovich, the court noted that “[t]he purpose of ORS 109.243 is to protect children conceived
by artificial insemination from being denied the right to support by the mother’s
husband or to inherit from the husband . . . [and] extending the statute’s coverage
to include the children of mothers in same-sex relationships advances the legislative
objective by providing the same protection for a greater number of children.” 214
P.3d at 40. The court also stated that, “in 2007, the legislature passed the Oregon
Family Fairness Act (OFFA), under which same-sex couples may register as domestic
partners and enjoy the same rights, benefits, and privileges extended to married couples
under Oregon law [and] those privileges presumably include legal parenthood by operation
of law for the domestic partner of a woman who conceives a child by artificial insemination.”
Id.
While the holding in Shineovich pertained to domestic partnerships and was prior to the state’s recognition of same-sex
marriages, the court’s extension of Or. Rev. Stat. § 109.243 to same-sex domestic
partnerships also extends to same-sex married couples. Following Shineovich, the Oregon Court of Appeals clarified that the touchstone for determining whether
Or. Rev. Stat. § 109.243 applied to a same-sex couple was “whether the same-sex partners
would have chosen to marry before the child’s birth had they been permitted to.” In re Madrone, 350 P.3d 495, 501 (Or. App. 2015) (emphasis in original). Here, despite the marriage
ban in Oregon until 2014, the NH and the claimant’s biological mother did, in fact,
choose to marry in Washington in 2013, shortly before the claimant was born. As Madrone confirms, Section 109.243 may apply in this case.
Therefore, if (a) the claimant was conceived through artificial insemination, and
(b) the NH consented to the insemination, then a parent–child relationship would be
found that would support inheritance rights. Accordingly, we recommend recontacting
the NH to determine if this is the case.
Finally, if a direct parent-child relationship cannot be established, the claimant
might still be eligible for stepchild benefits, assuming that the requirements for
such benefits are satisfied. See POMS GN 00210.505 (providing instructions for determining stepchild benefits). However, we were requested
to focus our legal opinion on whether the claimant was the natural child of the NH
because the NH did not allege that the claimant was her stepchild. See POMS GN 00210.505(B)(1) (if the claimant is not “alleging he or she is a stepchild of the NH . . .
do not apply these instructions” for determining stepchild benefits). As a result,
we do not address the claimant’s eligibility for stepchild benefits in this opinion.
CONCLUSION
For the above reasons, the evidence does not preclude a finding of a parent-child
relationship for purposes of determining entitlement to child’s benefits under Title
II of the Social Security Act. However, further development of the evidence is required.