Whether, under Iowa law, children born during a lesbian marriage are recognized as
the non-birthing parent’s children and are entitled to inherit from the non-birthing
parent under Iowa intestacy law.
On May XX, 2007, C~, the deceased numberholder (the NH), a United States citizen,
married W~ (the mother), a Dutch citizen, in V~, Netherlands. The mother gave birth
to two children (the children) during the marriage. On May XX, 2007, N~ was born in
T~, Netherlands. On July XX, 2010, K~ was born in T~, Netherlands. Both children are Dutch citizens.
The children’s birth certificates show the mother as the mother and no one is listed
as the father. The NH did not adopt the boys. There is no evidence that the NH had
a biological relationship with the children.
In February 2012, the family moved to the United States and lived in W~, Iowa, until
the NH’s death on July XX, 2015. On August XX, 2015, the mother filed for surviving
mother with child-in-care benefits and a lump-sum death payment (LSDP) on the NH’s
record. The same day, the children applied for surviving child’s benefits also on the record
of the NH. Around August XX, 2015, the mother and children returned to the Netherlands.
Under the Social Security Act (Act), a child of an insured worker who is dependent on the insured may receive auxiliary child’s insurance benefits, including surviving
child’s benefits, on the record of that worker. See 42 U.S.C. § 402(d) (2014); 20 C.F.R. §§ 404.350(a)(1), 404.354 (2014). In relevant
part, the Act defines child as the child or legally adopted child of an individual.
See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. §§ 404.350, 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). The Act’s definition of child is
met if the applicant is able to inherit from the insured under state law if the insured
were to die without leaving a will. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404. 355(a)(1), (b); Capato, 132 S. Ct. at 2028. In determining whether an applicant should be considered the
child of an insured individual, the Commissioner applies the law governing intestate
transfers in the state where the insured individual was domiciled at the time of her
death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), 404.355(b) (apply state law
where insured had permanent home when she died); POMS GN 00306.001 (determining which state law applies when insured individual has died). Here, the
state of domicile was Iowa, where the NH had her true, fixed, and permanent home at
the time of her death. See 20 C.F.R. § 404.303 (definition of permanent home); POMS GN 00305.001 (determining domicile).
Under Iowa law, a child may inherit if he or she is the issue of the decedent. See Iowa Code Ann. §§ 633.219, 633.3. Children born in wedlock are presumed to be the
“legitimate issue of the marital spouse” and are entitled to the rights of support
and inheritance. See Gartner v. Iowa Dep’t of Public Health, 830 N.W.2d 335, 347 (Iowa 2013); Heath v. Heath, 269 N.W. 761, 761 (Iowa 1936) (noting that the presumption of paternity protects
a child’s inheritance rights); Ryke v. Ream, 234 N.W. 196, 197 (Iowa 1931) (The presumption of paternity secures the right of
inheritance to any child begotten during wedlock.); see also Iowa Code Ann. § 598.31 (“Children born to the parties, or to the wife, in a marriage
relationship which may be terminated or annulled pursuant to the provisions of this
chapter shall be legitimate as to both parties, unless the court shall decree otherwise
according to the proof.”); Iowa Code Ann. § 252A.3(4) (“A child or children born of
parents who, at any time prior or subsequent to the birth of such child, have entered
into a civil or religious marriage ceremony, shall be deemed the legitimate child
or children of both parents, regardless of the validity of such marriage.”).
In Gartner, the Iowa Supreme Court considered whether the presumption-of-parentage statute,
Iowa Code § 144.13(2) (2011), applied to married lesbian couples. See Gartner, 830 N.W.2d at 340-41. The Iowa Department of Public Health had refused to identify
the non-birthing spouse as a parent on the birth certificate of a child born in wedlock
to the lesbian spouses. See Gartner, 830 N.W.2d at 340-41. The Court concluded that, under the equal protection clause
of the Iowa Constitution, the marital parentage presumption also applied to married
lesbian couples and the non-birthing spouse was entitled to be listed as a parent
on the birth certificates of children born during the marriage. See id. at 353-54. Notably, the Gartner court twice indicated that the presumption of parentage
secures the right of inheritance of children born in wedlock:
Specific to Iowa, our court long ago articulated the principal bases for presuming
a child born in wedlock is the legitimate issue of the marital spouses: “This rule
is founded on decency, morality, and public policy. By that rule, the child is protected
in his inheritance and safeguarded against future humiliation and shame.”
Gartner, 830 N.W.2d at 347 (quoting Heath, 269 N.W. at 761 (quoting Craven v. Selway, 246 N.W. 821, 823 (Iowa 1933), overruled on other grounds by In re Marriage of Schneckloth, 320 N.W.2d 535, 537 (Iowa 1982))); see also id. at 345. Thus, Gartner establishes that children born to married lesbian couples are presumed to be the
children of the non-birthing spouse and are entitled to inherit from the non-birthing
parent under Iowa intestacy law. See Gartner, 830 N.W.2d at 340, 345, 347.
While Iowa law presumes that the children are the NH’s children, the children would
not be considered the NH’s children under Dutch law. Although the Netherlands allows
same-sex marriage, it has not accorded same-sex spouses the same rights with regard
to marital parentage presumptions. Historically, spouses in a same-sex marriage were
not by operation of law the legal parents of a child born during marriage. While current
law grants the non-birthing female spouse legal status as a co-mother in cases of
unknown sperm donations, this law does not apply to children born before April 1,
2014. For children born before April 1, 2014, the non-birthing female spouse must
have either adopted the children or acknowledged the children at the Register of Births,
Deaths, Marriages, and Registered Marriages or before a notary public. Here, the NH
did not adopt the children, and there is no evidence that the NH complied with the
acknowledgement provisions set forth in Dutch statutes.
While there is a conflict of law concerning the children’s status under Iowa and Dutch
law, an Iowa court would look to its own law to determine the children’s status as
heirs and rights of inheritance. In Pazzi v. Taylor, the Supreme Court of Iowa refused to apply the law of another jurisdiction to determine
the status of an heir and held that where the decedent was domiciled in Iowa, its
“statutes of descent and distribution govern the determination of those persons who
are entitled to inherit from him.” Pazzi v. Taylor, 342 N.W.2d 481, 483 (Iowa 1984) (citations omitted); Mohr v. Langerman, 858 N.W.2d 36 (Iowa Ct. App. 2014) (In a probate action involving no Iowa residents,
the court refused to apply another jurisdiction’s law based on the “most significant
relationship” test outlined in Restatement (Second) Conflict of Laws § 287 (1971) and instead applied Iowa law to determine decedent’s biological child’s status as
an heir and rights of inheritance).
While the children are not the biological children of the NH, the NH’s parentage is
presumed as they were born in wedlock between the NH and the mother. Thus, the children
are entitled to inherit from the NH under Iowa intestacy law. Under section 416(h)(2)(A)
of the Act, they are the NH’s children and deemed dependent. Thus, you can find they
are entitled to child’s insurance benefits on the NH’s record.
As noted above, the mother filed an application for surviving mother’s benefits. Agency
guidance, issued on February XX, 2016, provides instructions for processing benefits
for a same-sex surviving spouse who has the child of a deceased numberholder in her
care. See POMS GN 00210.420. The mother’s application for surviving mother’s benefits may be processed according
to these instructions.
For the reasons outlined above, the children are entitled to benefits on the NH’s
record as her children.
Kristi A. Schmidt
Chief Counsel, Region VII
By Assistant Regional Counsel