I. Question
You asked whether a child-parent relationship exists between C~ (NH) and M~ (claimant)
for purposes of determining the claimant’s entitlement to CIB under Title II of the
Social Security Act (Act). The claimant’s biological parent was married to the NH
in Connecticut at the time the claimant was born, but not when the child was conceived.
The NH and the biological mother were still married and residing together in Connecticut
when the NH passed away in January , 2018.
II. Short Answer
We believe the Connecticut courts would find that the claimant could inherit as the
NH’s child under Connecticut intestacy laws. Accordingly, we believe the agency can
find that the claimant is the NH’s “child” for the purposes of determining eligibility
for CIB under the Act.
III. Background
The NH (C~) and C2~ (biological parent) were married on November , 2012, in Hartford,
Connecticut. Their marriage is valid under Connecticut law, which has recognized same-sex
marriages since 2008.[4] Almost two month after the couple married, M~ was born on January , 2013. Her birth
certificate identifies C2~ and the NH, C~, as parents. C2~ is the claimant’s biological
mother. The NH passed away while domiciled in Connecticut on January , 2018, and the
claimant is seeking CIB on her record under Title II.
IV. Analysis
A. The Act and Regulations
A claimant may be entitled to CIB under section 202(d)(1) of the Act, if he or she
(1) is the “child” of an insured individual, as defined in section 216(e) of the Act,
and (2) was dependent on the insured individual at the time the application was filed.
See Act § 202(d)(1)(C)(i). In determining whether a claimant qualifies as the child of
the NH, the Commissioner applies “the law on inheritance rights that the State courts
would use to decide whether [the claimant] could inherit a child’s share of the insured’s
personal property if the insured died without leaving a will.” 20 C.F.R. § 404.355(a),
(b)(1); accord Act § 216(h)(2)(A). When the NH is deceased, the Commissioner applies the law of
the State in which the NH was domiciled at the time of the NH’s death.[5] See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(1). An applicant who satisfies the requirements
of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual.
20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355,
you are considered dependent upon him or her”); Social Security Ruling 77-2c (“where
state intestacy law provides that a child may take personal property from a father’s
estate, it may reasonably be thought that the child will more likely be dependent
during the parent’s life...”). Thus, if a claimant establishes she has inheritance
rights under state intestacy laws, she is deemed the insured’s “child” under the Act.
Since the NH was domiciled in Connecticut at the time of her death, we apply Connecticut
intestacy law to determine whether the claimant is the NH’s child for the purposes
of the Act.
B. State Law
The Connecticut inheritance laws relevant to this issue are codified at Sections 45a-437
and 45a-438 of the General Statutes of Connecticut. Under section 45a-437, when an
individual dies without a will, his or her property shall be distributed primarily,
in circumscribed proportionality, to the surviving spouse (if one exists), any surviving
issue, and the parents of the decedent. Conn. Gen. Stat. § 45a-437. In turn, section
45a-438 provides that after distribution has been made to a surviving spouse, the
residual value shall be distributed equally “among the children….” Conn. Gen. Stat.
§ 45a-438(a).
Connecticut law has long provided that a child born in wedlock is presumed to be the
legitimate child of the mother and her husband, even if conceived prior to the marriage.
The Connecticut Supreme Court has applied this principle in cases dating back to at
least the early 1900s. See Grant v.
Stimpson, 66 A. 166, 168 (Conn. 1907). More recent cases have continued to apply this rule.
See, e.g., Holland v. Holland, 449 A.2d 1010, 1012 (Conn. 1982); Schaffer v. Schaffer, 445 A.2d 589, 590 (Conn. 1982). This has led at least one Connecticut court to conclude
that a minor child born to parents in a civil union[6] or same-sex marriage is presumed to be the “issue” of the parties’ marriage. Barse v. Pasternak, 59 Conn. L. Rptr. 801, 2015 WL 600973, at *11 (Conn. Super. Ct. Jan. 16, 2015).
As the Barse court explained, Connecticut trial courts “routinely hold that children born to opposite-sex
parties both before and after marriage are considered issue of the marriage.” Id. at *10 (collecting cases).
Reasoning from the strong public policy in favor of finding legitimacy and from the
Connecticut Supreme Court’s holdings finding a constitutional right for marriage equality
for same-sex couples, the Barse court ruled that the minor child born to same-sex parents who were in a civil union
or marriage at the time of the birth is “presumed to be legitimate.” Id. The court therefore held that the non-biological parent is “presumed to be the legal
parent of the minor child.” Id. at *10-11.
The Connecticut Supreme Court held in Kerrigan that although the civil union regime imbued the relationship with the same legal
rights as the marriage relationship, “the very existence of the [civil union] classification
gives credence to the perception that separate treatment is warranted for the same
illegitimate reasons that gave rise to [ ] past discrimination… .” Kerrigan, 957 A.2d at 419. It found that such separate treatment violated the state constitution’s
requirement of equal protection under the law. Even prior to Kerrigan the Connecticut civil union laws required that “[p]arties to a civil union shall
have all the same benefits, protections and responsibilities under law, whether derived
from the general statutes, administrative regulations or court rules, policy, common
law or any other source of civil law, as are granted to spouses in a marriage….” Pub.
Act. No. 05-10, § 14 (codified at Conn. Gen. Stat. § 45b-38nn (repealed by P.A. 09-13,
§ 21)). Given the clear mandate in Connecticut law for equal legal treatment of same-sex
persons in a marriage relationship, the Barse court’s reasoning is a persuasive distillation of Connecticut intestacy law as applied
to the children of same-sex marriages. It is very likely that higher courts in Connecticut
would reach the same conclusion.
Here, the claimant was born to parents who were legally married under the laws of
Connecticut. Under the laws of Connecticut, it is irrelevant that the child was conceived
prior to the marriage. SeeWeidenbacher
v. Duclos, 661 A.2d 988, 997 (Conn. 1995) (“Connecticut law has long provided that a child
born in wedlock is presumed to be the legitimate child of the mother and her husband,
even if conceived prior to the marriage.”) (citations omitted) (cited approvingly
in Barse, 2015 WL 600973, at *8, rejecting argument that the presumption of legitimacy should
not extend to same-sex marriages). Both parents were listed on the birth certificate,
creating a presumption that the child is the legal “issue” of both parents, thus entitled
to inherit property if either parent dies without a will. While the marital presumption
is rebuttable, see Barse, 2015 WL 600973, at *11, there has been no attempt to rebut the presumption[7] . Accordingly, we do not believe the marital presumption of parenthood will be disturbed.
We therefore believe that under Connecticut inheritance law the claimant would be
considered the legitimate or “natural” child of the NH.
V. Conclusion
We believe the Connecticut courts would find that the claimant could inherit as the
NH’s child under Connecticut intestacy laws. Accordingly, we conclude that the agency
can find that the claimant is the NH’s “child” for the purposes of determining eligibility
for CIB under the Act.