TN 27 (09-19)

PR 00905.021 Louisiana

A. PR 19-104 Louisiana State Law - Status of Child Conceived During Same-Sex Marriage and Born After the Number Holder's Death

Date: August 22, 2019

1. Syllabus

Under Louisiana intestate succession law, a deceased individual’s property passes to his or her descendants, which includes children. For purposes of intestate succession, “children” includes those persons conceived or born during the parents’ marriage, persons who were adopted, and persons whose filiation has been established, which includes through application of a presumption of parentage for a child born within 300 days from the termination of the parents’ marriage. The parent-child relationship for a child born during the parents’ marriage stems from the parents’ martial relationship, not biological parentage. Marriage terminates upon the death of either spouse.

In this case, there is legal support for the Social Security Administration to find that a parent-child relationship exists between the number holder (NH) and the child under section 216(h)(2)(A) of the Social Security Act based on application of Louisiana intestate succession law because the child was born of the NH’s valid same-sex marriage with the child’s biological mother.

2. Question Presented

You asked whether, under Louisiana law, a parent-child relationship existed between T~, the deceased number holder (NH) and the claimant A~ (the Child), a child born after the NH’s death[1] but conceived during a Florida ceremonial same-sex marriage between the NH and the Child’s biological mother, J~ (Applicant), for purposes of the Child’s entitlement to Title II child’s insurance benefits (CIB) on the NH’s record.[2]

3. Answer

For the reasons discussed below, we believe that Louisiana courts would find that a parent-child relationship exists between the NH and the Child. Therefore, there is legal support for the Social Security Administration (SSA or agency) to find that a parent-child relationship exists between the NH and the Child under section 216(h)(2)(A) of the Social Security Act (Act) based on application of Louisiana intestate succession law because the Child was born of the NH’s valid same-sex marriage with the Applicant, the Child’s biological mother.

4. Background

As we understand the facts, on April XX, 2015, the NH and the Applicant entered into a same-sex ceremonial marriage in Florida. The Applicant provided a copy of their completed Florida marriage license and certificate.

On November XX, 2016, the Applicant underwent an intrauterine insemination (IUI) at a fertility clinic. The evidence provided includes a letter from a treating physician with the Audubon Fertility Clinic in Louisiana explaining that the Applicant received fertility treatment from November 2016 to January 2017, and that an IUI procedure on November XX, 2016, resulted in the Applicant’s pregnancy and the Child’s birth.[3] The physician stated that the NH was present for the IUI procedure.

On January XX, 2017, the NH passed away while domiciled in Louisiana. The Child was born on August XX, 2017, which was 218 days (7 months, 6 days) after the NH’s death. The Child’s Louisiana birth certificate lists the NH as her father and the Applicant as her mother.

On October XX, 2017, the Applicant filed an application with SSA for surviving child’s insurance benefits on the Child’s behalf on the NH’s account as the NH’s child.

5. Analysis

A. Federal Law: Entitlement to Child's Insurance Benefits under the Act as a "Child"

A claimant may qualify for CIB on the earnings record of an individual who dies fully or currently insured if the claimant is the deceased individual’s “child ” and was dependent on the insured individual at the time of the insured’s death.[4] See Act § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350, 404.355. The Act and regulations define “child” as an insured number holder’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Our inquiry in this opinion focuses on whether the Child is the NH’s natural child, as there is no evidence that the other terms would apply here.

In assessing a claimant’s status as a natural child, the agency must determine whether the claimant could inherit the insured number holder’s personal property as her child under the intestate succession laws of the state where the insured number holder was domiciled at the time of her death. See Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). If a claimant qualifies as a child of the insured individual under the foregoing analysis, the claimant is deemed dependent on the insured individual. 20 C.F.R. § 404.361(a). Because the NH was domiciled in Louisiana when she died, we apply Louisiana intestate succession laws to determine whether the Child could inherit from the NH as her child.

B. State Law: Inheritance under Louisiana Intestate Succession Laws as a Child Born of a Valid Same-Sex Marriage

Under Louisiana intestate succession law, a deceased individual’s property passes to his or her descendants by blood[5] or by adoption. See La. Civ. Code Ann. arts. 880 (intestate succession), 882 (representation in direct line of descendants), 888 (succession rights of descendants), 1096 (definition of intestate succession). Descendants includes children. See La. Civ. Code Ann. art. 882 (“Representation takes place ad infinitum in the first line of descendants. It is permitted in all cases, whether the children of the deceased concur with the descendants of the predeceased child, or whether all children having died before him, the descendants of the children be in equal or unequal degrees of relationship to the deceased.”); In the Matter of Succession of Dangerfield, 207 So. 3d 427, 429 (La. Ct. App. 2016) (for intestate succession, the first class of intestate heirs is the descendant class, and children are included in this descendant class).

The Louisiana Civil Code defines the term “children” for purposes of intestate succession to include the following three groups:

(1) those persons born of the marriage,

(2) persons who are adopted, and

(3) persons whose filiation to the parent has been established in the manner provided by law.

La. Civ. Code Ann. art. 3506(8); see also In the Matter of Succession of Dangerfield, 207 So. 3d at 429 (in intestate succession, included among descendants are children born of the marriage, children that have been adopted, and children born out of wedlock whose filiation has been established through the presumption of paternity due to the marriage to the mother, presumption of paternity due to a formal acknowledgment of the father, or the institution of a legal proceeding to prove filiation); In re Succession of Loustalot, 183 So. 3d 556, 558 (La. Ct. App. 2015) (“In intestate successions, the first class of intestate heirs is the descendant class. Included among descendants are legitimates [children born during a marriage], adopted children, and children born out of wedlock those parentage is established.”); Dennis v. Stewart, 887 So. 2d 539, 542 (La. Ct. App. 2004) (citing to the definition of children in Louisiana Civil Code article 3506(8) for purposes of inheritance of descendants under intestate succession).

As to the first group – those persons born of the marriage - this article further defines “[a] child born of marriage” as “a child conceived or born during the marriage of his parents or adopted by them.” La. Civ. Code Ann. art. 3506(8). As to the third group – persons whose filiation to the parent has been established - “[f]iliation is the legal relationship between a child and his parent,” and it is established by proof of maternity, proof of paternity, or by adoption. La. Civ. Code Ann. arts. 178, 179. Among the methods of establishing filiation by proof of paternity is the presumption of paternity of a husband, found in article 185, which states that, “[t]he husband of the mother is presumed to be the father of the child born during the marriage or within three hundred days from the date of the termination of the marriage.” La. Civ. Code Ann. art. 185.

Thus, as relevant here, a child born during her parents’ marriage fits within two of the groups for establishing the right to inherit under intestate succession law as a deceased individual’s child: (1) as a child born of the marriage, and (2) as a child whose filiation with the father has been established by a presumption of paternity based on his marriage with the child’s mother per article 185. See La. Civ. Code Ann. art. 3506(8).

Here, the evidence indicates the Child was conceived on November XX, 2016, during the NH’s and Applicant’s marriage, which began on April XX, 2015. As such, the Child would appear to be a child born of their marriage. See La. Civ. Code Ann. art. 3506(8) (“[a] child born of marriage” is “a child conceived or born during the marriage of his parents . . .”). Additionally, the Child was born on August XX, 2017, which was 218 days (7 months, 6 days) after the NH’s death on January XX, 2017 (which is also the marriage termination date). See La. Civ. Code Ann. art. 101 (marriage terminates upon the death of either spouse). As such, the Child would appear to be a child whose filiation to the NH is established under a presumption of parentage for a child born within 300 days from the termination of her parents’ marriage, per article 185. See La. Civ. Code Ann. arts. 185, 3506(8). Therefore, based on her parents’ marriage, the Child fits within the definition of a child for purposes of inheriting from the NH as her descendant under Louisiana’s intestate succession laws.[6] See La. Civ. Code Ann. arts. 880, 3506(8).

Given the facts of this particular matter, we further consider: (1) the validity of the NH’s same-sex marriage to the Applicant, and (2) whether the lack of a biological link to the Child and the same-sex status of the parents hold any legal significance in determining the Child’s right to inherit from the NH under Louisiana intestate succession law.

1. The Validity of the Parents’ Same-Sex Marriage

Because the Child’s right to inherit turns on her parents’ marital relationship, as explained above, we consider the validity of the NH’s and the Applicant’s same-sex marriage. With respect to the agency’s application of State marriage laws, we note that in Obergefell v. Hodges, 135 S. Ct. 2584, 2604-2605 (2015), the Supreme Court held State laws invalid to the extent that they exclude same-sex couples from marriage on the same terms and conditions as opposite-sex couples. The Court further recognized there was no lawful basis to uphold state laws banning recognition of same-sex marriages performed under the laws of other states. Id. at 2607. Pursuant to the U.S. Supreme Court’s decision in Obergefell and the Fifth Circuit Court of Appeals’ decision in Robicheaux v. Caldwell, same-sex marriage was recognized as legal in Louisiana, and the courts made clear that Louisiana must recognize valid out-of-state same-sex marriages. See Robicheaux v. Caldwell, 791 F.3d 616 (5th Cir. 2015) (applying Obergefell to find Louisiana’s same-sex marriage laws unconstitutional); POMS GN 00210.003(B).

Here, the evidence provided includes a copy of the Florida marriage record evidencing the NH’s and the Applicant’s marriage in Florida on April XX, 2015, after Florida first permitted same-sex marriage on January XX, 2015, but before Obergefell.[7] See Brenner v. Scott, 999 F.Supp.2d 1278 (N.D. Fla. 2014) (finding the state of Florida ban on same-sex marriage violated the U.S. Constitution Fourteenth Amendment’s Due Process and Equal Protection Clauses); POMS GN 00210.003(B) (same-sex marriages were first permitted in Florida on January 5, 2015); POMS PR 02712.011 (“Florida began issuing marriage licenses to same-sex couples on January 5, 2015.”). Pursuant to Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate Obergefell. As a result, SSA will consider State-law same-sex marriage bans, whether based on State constitutional or statutory provisions or case law void and ineffective. SSA will apply the relevant law to the facts as usual to evaluate marital status. Thus, we apply Obergefell retroactively and conclude that Louisiana will recognize an out-of-state same-sex marriage that was valid under the laws where it took place even if prior to Obergefell. See Obergefell, 135 S. Ct. at 2607-2608 (“there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character”); Costanza v. Caldwell, 16 So. 3d 619, 620 (La. 2015) (noting that in Obergefell, the U.S. Supreme Court “further recognized that there is ‘no lawful basis’ to uphold so-called ‘recognition bans’ – such as Louisiana’s laws banning recognition of same-sex marriages performed under the laws of other states.”); La. Civ. Code Ann. art. 3520(A) (“A marriage that is valid in the state where contracted . . . shall be treated as a valid marriage unless to do so would violate a strong public policy . . .”). As same-sex marriage was permitted in Florida at the time that the NH and the Applicant were married in April 2015, we consider whether their marriage was otherwise valid under Florida law. See POMS GN 00210.003(B).

Here, the Applicant presented a copy of a completed and recorded Florida marriage application, license, and certificate of marriage showing that the NH and the Applicant completed an application to marry; were issued a marriage license on April XX, 2015, by the Clerk of Circuit Court for Escambia County, Florida; and were married in a ceremony in Pensacola, Florida on April XX, 2015, by Kathy Beniot, Deputy Clerk for the Hon. Pam Childers, Clerk of Courts. Florida courts presume a ceremonial marriage is legal and valid. See Stewart v. Hampton, 506 So. 2d 70, 71 (Fla. Dist. Ct. App. 1987); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984). Because their marriage certificate indicates a ceremonial marriage occurred and that the NH and the Applicant obtained a marriage license before the officiant solemnized the marriage, all in accordance with Florida law, we believe that SSA could conclude that Florida would presume the marriage was valid. See Fla. Stat. Ann. §§ 741.01, 741.04, 741.041, 741.07, 741.08, 741.09; see also Hall v. Maal, 32 So. 3d 682, 684-686 (Fl. Dist. Ct. App. 2010) (Florida’s marriage statutes require substantial compliance).

Therefore, in determining whether the Child could inherit from the NH under Louisiana intestate succession law as a child born during her parent’s marriage, Louisiana would recognize their Florida marriage as valid.[8] See La. Civ. Code Ann. art. 185, 3506(8).

2. The Lack of a Biological Link and the Same-Sex Status of the Married Parents

We also consider whether the IUI procedure and the NH’s lack of a biological link to the Child has any legal significance under Louisiana intestate succession law impacting to the Child’s right to inherit from the NH as a child born during her mother’s valid same-sex marriage to the NH. As noted, according to evidence from the Audubon Fertility Clinic, the NH and the Applicant sought fertility treatment from November 2016 to January 2017, and an IUI procedure on November XX, 2016, resulted in the Child’s birth. Thus, we understand that a third-party donor provided the sperm for the Child’s conception through means of IUI procedure.[9] As discussed next, Louisiana law in general indicates that the right to inherit as child born during her parents’ marriage is based on the parents’ martial relationship, not biological parentage. And recent case law involving same-sex married parents is consistent with this interpretation and focus upon the parents’ marriage in establishing the parent-child relationship to the nonbiological parent.

a. Louisiana Law in General: The Parent-Child Relationship for a Child Born During Her Parents’ Marriage is based on Parents’ Marital Relationship and Not the Biological Relationship

The fact that the NH is not the Child’s biological parent does not affect the analysis of whether the Child could inherit from the NH under Louisiana intestate succession laws because, as noted above, the parent-child relationship for a child born during her parents’ marriage - stems from the parents’ martial relationship, not biological parentage. See La. Civ. Code Ann. art. 3506(8) (the term “children” for purposes of intestate succession includes “those persons born of the marriage” and those whose filiation has been established, which includes by a presumption of paternity); La. Civ. Code Ann. art. 185 (the husband of the mother is presumed to be the father of a child born during the marriage or within 300 days from the date of the termination of the marriage); In the Matter of Succession of Dangerfield, 207 So. 3d at 429 (in intestate succession, included among descendants are children born of the marriage); In re Succession of Loustalot, 183 So. 3d at 558 (explaining that one way to establish the parent-child relationship for intestate succession is through “legitimate filiation” where the husband of the mother is presumed to be the father of a child born during their marriage).

Louisiana courts have applied this presumption of parentage for children born during a marriage even where evidence indicates they are not the presumed parent’s biological children, where the time had expired for challenging such a presumption of parentage.[10] See Succession of Verrett, 70 So. 2d 89, 89-90 (La. 1953) (children conceived and born during a marriage, but admittedly another man’s biological children, were entitled to inherit as children from the husband’s estate as presumed children of their marriage, where he did not file a timely action to disavow); Kenney v. Bowen, 1992 WL 37431, at *4 (E.D. La. 1988) (as the child was both conceived and born during the marriage of his mother and the deceased wage earner, it is presumed that the child is the child of the deceased wage earner for inheritance purposes, and, as there was no evidence of a timely disavowal of paternity, “the presumption of his paternity is exclusive”); see also State, Dept. of Social Services, Office of Family Support ex rel. K.B.D. v. Drew, 70 So. 3d 1011, 1012 (La. Ct. App. 2011) (in child support enforcement action, mother’s husband is presumed to be the father of a child born during the marriage, and therefore paternity was established by operation of law despite later DNA evidence showing he was not the biological father).

Thus, in general, it is our understanding that under Louisiana law, the fact that the NH is not the biological parent does not preclude inheritance as a child born during her parents’ valid marriage because this method of establishing inheritance rights is based on the parents’ marital relationship. See La. Civ. Code Ann. arts. 185, 3506(8).

b. Recent Cases on Parent-Child Relationships for Children of Same-Sex Married Parents Focus on the Parents’ Marital Relationship and Not the Biological Relationship

With regard to the same-sex status of the married couple as parents - a situation in which it is also clear that one parent is not the biological parent - although we are not aware of any Louisiana cases involving the intestate succession inheritance rights of a child conceived during her biological mother’s same-sex marriage specifically, treating children of same-sex married couples similarly to children of opposite-sex married couples is supported by the U.S. Supreme Court’s decision in Pavan v. Smith, 137 S. Ct. 2075 (2017) and two recent Louisiana court of appeals decisions concerning the parentage of children of same-sex married parents. Pavan considered whether the birth certificate of children conceived through assisted conception and born to same-sex married couples should list as the second parent the name of the same-sex spouse of the child’s biological mother. Id. at 2076-77. At the time of the children’s birth, the law in the state at issue (Arkansas) specified which names could appear on a child’s state-issued birth certificate. Id. at 2077. With limited exceptions, the Arkansas statute indicated that “the mother is deemed to be the woman who gives birth to the child” and “[i]f the mother was married at the time of either conception or birth…the name of [her] husband shall be entered on the certificate as the father of the child.” Id. The Arkansas Supreme Court concluded that the name of a mother’s same-sex spouse should not appear on a child’s state-issued birth certificate. Id. at 2076-77. Relying upon Obergefell, the U.S. Supreme Court in Pavan reversed the Arkansas Supreme Court’s decision and ruled that a married mother’s same-sex spouse is entitled to the same recognition as parent on a child’s birth certificate that the Arkansas statute provides to a married mother’s opposite-sex spouse (husband). Id. at 2078-79. The refusal to provide such recognition amounted to a denial of “access to the constellation of benefits that the Stat[e] ha[s] linked to marriage.” Id. at 2078 (citation omitted). The Court stated:

Obergefell proscribes such disparate treatment. As we explained there, a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’ 576 U. S., at ---, 135 S.Ct., at 2605. Indeed, in listing those terms and conditions—the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified ‘birth and death certificates.’ Id., at ---, 135 S.Ct., at 2601. That was no accident: Several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their children’s birth certificates. See DeBoer v. Snyder, 772 F. 3d 388, 398–399 (C.A.6 2014). In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples. See 576 U. S., at ---, 135 S. Ct., at 2605. That holding applies with equal force to § 20–18–401.

Id. Accordingly, the Pavan Court found that, because Arkansas allowed the husband of a child’s birth mother to be listed as the parent on her child’s birth certificate in situations involving assisted reproduction with donor sperm, Arkansas must allow the same for a birth mother’s wife. Id. at 2079.

Recently, a Louisiana court of appeals reached a similar conclusion on the naming of a same-sex spouse on a child’s birth certificate based on a presumption of parentage in Chaisson v. State of Louisiana, 239 So. 3d 1074 (La. Ct. App. 2018), writ denied, 243 So. 3d 567 (La. 2018). In 2014, Chaisson gave birth to a child, who was conceived via artificial insemination, in Louisiana at a time when she was in a same-sex marriage. Id. at 1076. She did not alert the hospital that she was married, and the birth certificate listed Chaisson as the mother but did not list a father. Id. at 1076, 1081. In 2017, while still married, Chaisson’s same-sex spouse applied to amend the child’s birth certificate to list her as a parent, providing proof that the child was born during her marriage to Chaisson. Id. at 1077. The State’s Registrar of Vital Records approved the application and issued an amended birth certificate based upon the couple’s marriage license showing that they were married at the time of the child’s birth. Id. Chaisson filed a writ of mandamus to require the Registrar of Vital Records to restore the child’s birth certificate to its original form, which the trial court denied. Id. The Louisiana court of appeals affirmed the trial court’s decision finding that the Registrar of Vital Records acted in its capacity to amend the birth certificate to add the mother’s same-sex spouse as the child’s parent based on the marriage license alone, just as it would have done for an opposite-sex married couple. Id. at 1078-1079 (“The Registrar maintained that there is a legal presumption that the spouse of the birth mother is also the other parent of the child, per [Louisiana Civil Code] art. 185. The Registrar noted that since the marriage license alone showed the parties were married at the time of [the child’s] birth, the birth certificate could be amended with the marriage license alone.”). The court, considering the Obergefell, Robicheaux,[11] and Pavan decisions, noted that the Registrar maintained that “the presumption of parentage for the non-child bearing spouse provided for in [Louisiana Civil Code] art. 185 is not biologically based but is based on the marriage contract in existence at the time of [the child’s] birth,” and therefore, “the Registrar is legally required to provide equal protection to same sex couples seeking to amend a birth certificate, under Obergefell and Robicheaux.” Id. at 1081-1082 (“The Registrar testified he extended the same benefits of marriage, i.e., the presumption that the spouse of the birth mother is also the parent of the child, regardless of biological relation.”). The court concluded there was “no error with the trial court’s finding that the Registrar consistently applied the same procedure to amend a birth certificate of a child born to a married couple, regardless of sexual orientation.” Id. at 1083.

Even more recently, in an action concerning an untimely disavowal of paternity (parentage), a Louisiana court of appeals applied Louisiana Civil Code article 185 to find that a presumption of parentage applied to a child born of a same-sex marriage in Boquet v. Boquet, 269 So. 3d 895 (La. Ct. App. 2019). See La. Civ. Code Ann. art. 185 (“The husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage.”), art. 189 (“The action for disavowal of paternity is subject to a liberative prescription of one year. This prescription commences to run from the day of the birth of the child, or the day the husband knew or should have known that he may not be the biological father of the child, whichever occurs later.”). The parties entered into a same-sex marriage in December 2015. Boquet, 269 So. 3d at 897. One of the spouses was pregnant at the time of their same-sex marriage and a child was born of the marriage in February 2016. Id. The parties filed for divorce in March 2017 and the nonbiological parent filed an action for disavowal of paternity (parentage) in April 2017. Id. In considering Obergefell and Pavan, the court of appeals noted that the court must apply article 185 as to the presumption of paternity of a husband and article 189 as to the time limit for disavowal by the husband “in such a manner that Brittany, the female spouse of a birth mother, has the same ‘constellation of benefits’ and obligations as those of a male spouse of a birth mother.” Id. at 899-900. Consequently, the court found that the child “was born of the marriage” and under article 185, Brittany (the nonbiological same-sex spouse of the birth mother) was the child’s presumed parent. Id. at 900. The court further found that as such, she was also subject to the time limitation for disavowing parentage under article 189 and that she failed to meet this time limitation. Id. This court’s application of a presumption of parentage to a child born of a same-sex marriage under article 185 of the Louisiana Civil Code further supports finding that the Child is “born of the marriage” and a child under article 3506(8) of the Louisiana Civil Code for purposes of intestate succession.

Although the cases of Pavan, Chaisson, and Boquet did not specifically address intestate inheritance rights of a child born of a same-sex marriage, we believe parent-child determinations under Louisiana intestacy law are likely to be considered analogous and extended to similarly situated same-sex married couples to find parent-child relationships for inheritance purposes as well.

3. Summary: The Child has a Right to Inherit from the NH under Louisiana Intestate Succession Law Based on her Parents’ Valid Same-Sex Marriage

In summary, under Louisiana intestate succession law, a deceased individual’s property passes to his or her descendants, which includes children. See La. Civ. Code Ann. arts. 880, 882, 888, 1096. For purposes of intestate succession, “children” includes those persons conceived or born during her parents’ marriage, and those persons whose filiation has been established, which includes through application of a presumption of paternity as a child born during her parents’ marriage. See La. Civ. Code Ann. art. 3506(8); see also La. Civ. Code Ann. art. 185 (the husband of the mother is presumed to be the father of a child born during the marriage or within 300 days from the date of the termination of the marriage); In the Matter of Succession of Dangerfield, 207 So. 3d at 429 (in intestate succession, included among descendants are children born of the marriage); In re Succession of Loustalot, 183 So. 3d at 558 (“In intestate successions, the first class of intestate heirs is the descendant class. Included among descendants are legitimates”).

We believe a Louisiana court would find that the evidence establishes the Child was conceived while the NH and the Applicant (the Child’s biological mother) were in a valid same-sex marriage and thus, that the Child was “born of the marriage.” Furthermore, we believe a Louisiana court would find that the Child’s filiation to the NH has been established through a presumption of parentage. Accordingly, as a child born during her parents’ marriage, we believe a Louisiana court would find that the Child could inherit from the NH under Louisiana intestate succession laws as her child. See La. Civ. Code Ann. arts. 880, 882, 888, 3506(8). We note that the State has already recognized the NH as the Child’s other parent on the Louisiana-issued birth certificate as the NH is listed as the Child’s “father.” See La. Rev. Stat. Ann. § 40:42(A) (“every original certificate on file in the vital records registry is prima facie evidence of the facts therein stated”).[12]

6. Conclusion

For the reasons discussed above, we believe that the Louisiana courts would find that a parent-child relationship exists between the NH and the Child. Therefore, there is legal support for the agency to find that a parent-child relationship exists between the NH and the Child under section 216(h)(2)(A) of the Social Security Act (Act) based on application of Louisiana intestate succession law because the Child was born of the NH’s valid same-sex marriage with the Applicant, the Child’s biological mother.


Footnotes:

[1]

Your opinion request indicates the Child was born during the valid ceremonial same-sex marriage between the NH and the Applicant. You later clarified that the child was conceived during their marriage, but born after the NH's death.

[2]

In determining the status of a child of a same-sex marriage or other relationship, the Program Operations Manual System (POMS) advises the agency that if no applicable precedent opinion exists, the number holder is not the biological parent, and a parental relationship is alleged based upon a same-sex relationship, such as a same-sex marriage, civil union, or domestic partnership, the claim should be submitted for a Regional Chief Counsel opinion. POMS GN 00306.001(C)(1)(d).

[3]

The clinic’s website explains that IUI involves placing sperm from the woman’s male partner or sperm donor in the woman’s uterus when she is ovulating. See https://www.audubonfertility.com/basic-fertility-treatments (last visited Aug. 22, 2019). Thus, although not expressly stated in the clinic’s letter, given the Applicant’s same-sex marriage to the NH at the time, we must assume that a third-party sperm donor was used.

[4]

The Child must satisfy other criteria for her application for child’s insurance benefits that are outside the scope of this legal opinion request. See Act § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. We focus only on the requirement of a parent-child relationship between a claimant and the number holder. See 20 C.F.R. § 404.350(a)(1).

[5]

As addressed below, Louisiana courts have not read “by blood” to mean that only biological children can inherit as descendants.

[6]

Throughout this opinion, because the analysis is the same under the present facts, we will refer to a child born during her parents’ marriage to mean both a child born of marriage and a child whose filiation is established by the presumption of paternity based on the parents’ marriage. Both qualify as a “child” for intestate succession purposes and both establish the parent-child relationship based upon the parents’ marriage. See La. Civ. Code Ann. art. 3506(8).

[7]

OGC Region IV reviewed the discussion of Florida’s marriage laws.

[8]

It would also appear that the Applicant has provided the agency with the preferred evidence of a valid ceremonial marriage, which includes a copy of the public record of marriage. 20 C.F.R. § 404.725(b)(2). If an applicant provides the agency with preferred evidence, the agency “will generally find it is convincing evidence.” 20 C.F.R. § 404.709.

[9]

Louisiana law provides that a child does not retain inheritance rights from the in vitro fertilization patients or a donor of gametes used in the in vitro fertilization process, unless the donor is a person from whom the child could otherwise inherit notwithstanding the in vitro fertilization process. See La. Rev. Stat. Ann. § 9:133; see also La. Rev. Stat. Ann. § 2718.1(2) (“‘Gamete’ means either a sperm or an egg”). In addition, Louisiana law provides that a child conceived through in vitro fertilization using sperm from a donor shall not be deemed a forced heir (descendant) of the sperm donor for inheritance purposes (unless that individual would otherwise be the child’s parent without consideration of the sperm donation). See La. Civ. Code Ann. arts. 1493, 1493.1. Thus, the Child would not have inheritance rights as to the third-party sperm donor.

[10]

Louisiana also recognizes the concept of dual paternity – recognizes both a legal father (that arises, for example, through a presumption of paternity due to marriage where the time for disavowal has expired) and a biological father. See State of Louisiana, Dept. of Children and Family Services ex rel. A.L. v. Lowrie, 167 So. 3d 573, 589 (La. 2015) (in a child support enforcement action, the court stated, “the mere fact that a legal father provides child support does not excuse the biological father from his obligation of support,” and found that the biological father should be required to be joined as a party to the suit); see also Smith v Cole, 553 So. 2d 847, 854 (La. 1989) (in a filiation action for child support, in addressing the presumption of paternity for a child born or conceived during the marriage, the court stated, “The legal tie of paternity will not be affected by subsequent proof of the child’s actual biological tie. Legitimate children cannot be bastardized by succeeding proof of actual parentage.”); Modisette v. Phillips, 736 So. 2d 983, 987 (La. Ct. App. 1999) (the presumed father did not file a timely disavowal action and thus, he was the child’s legal father, and the fact that another man was proven to be the child’s biological father did not affect the status of the presumed legal father).

[11]

As the court of appeals noted, as a result of Obergefell, in Robicheaux, following reversal and remand by the Fifth Circuit Court of Appeals on July 1, 2015, the U.S. District Court for the Eastern District of Louisiana issued a judgment on July 2, 2015, ordering Louisiana’s Vital Records to issue a birth certificate naming the other parent, the non-child bearing same-sex spouse of the birth mother, on their child’s birth certificate. Chaisson, 239 So. 3d at 1080.

[12]

As addressed above, a husband may bring an action to timely disavow paternity of a presumed child by clear and convincing evidence that he is not the father. La. Civ. Code Ann. arts. 187, 189, 190. Here, the NH knew she was not the Child’s biological parent prior to her death in January 2017 and before the Child’s birth in August 2017. We are unaware of any timely action seeking disavowal her parentage relationship. Moreover, Louisiana law provides that the husband of a mother may not disavow a child born to his wife as a result of an assisted conception to which he consented. La. Civ. Code Ann. art. 188. Thus, it would appear that no viable challenge to this presumption of parentage as to the NH and the Child remains. And, as noted in footnote 8, the Child would not have inheritance rights as to the third-party sperm donor.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1500905021
PR 00905.021 - Louisiana - 09/12/2019
Batch run: 09/12/2019
Rev:09/12/2019