The regulations that became effective on 11/27/98 changed SSA's policy on choosing
the version of State law to apply in death cases. This change is intended to be beneficial
to child claimants in cases where the law has been changed since the NH died.
Previously, we applied the version of State law that was in effect at the time the
NH died, with the exception of cases adjudicated under the Owens Acquiescence Ruling (see GN 00306.275). For cases adjudicated under the policy contained in the new regulations:
Apply the version of State law that is in effect when the child's claim is adjudicated (see GN 01010.001 for the definition of "adjudicated").
If the child does not have inheritance rights under that version of State law (or
that version may not enable the earliest possible entitlement date for the child),
apply the version of State law that was in effect when the NH died.
If the child does not have inheritance rights under the version of State law in effect
when the NH died (or that version may not enable the earliest possible entitlement
date for the child), apply any version of State law in effect from the time the child
first could be entitled to benefits based on his/her application until the time the
final decision on the claim is made, whichever version is most beneficial to the child.
Use the effective dates in the appropriate State law digest entry to determine which
version of State law applied at a particular time. For example, to determine which
provision was effective when the NH died, a provision listed as "effective 12/1/97"
in the entry would apply if the NH died on or after that date. To determine which
provision applied at the time the child could first be entitled, a provision listed
as "effective 12/1/97" would apply if the time the child could first be entitled was
on or after that date.
NOTE: SSA has not changed how it determines which State's law to apply; we will still apply the law of the State where the NH was domiciled
at the time he died. Also, effective with the regulations change on 11/27/98, the Owens Acquiescence Ruling (AR) is rescinded. See GN 00306.275 for background on the Owens AR.
The NH dies in 1/99. The child (born in 12/98) files in 9/99 and we are adjudicating
the claim in 10/99. The version of State law in effect when the claim is adjudicated
is an inheritance rights provision (operating prospectively) that was effective 8/99,
under which inheritance rights can be established based on a preponderance of the
evidence. The child can qualify under this provision, with a first month of entitlement
of 8/99. Since the application has retroactivity to 3/99, we must determine whether
there is a more beneficial version of State law that would enable an earlier entitlement
date. Since the law in effect at the time of the NH's death had a clear and convincing
standard of proof that the child could not meet, and there were no subsequent changes
in the law until 8/99, the child cannot be entitled before 8/99.
The facts are the same as in example 1, except that the preponderance of the evidence
provision that became effective in 8/99 is a legitimating provision, which operates
back to the child's birth. In this case, the child's first month of entitlement would