TN 12 (08-16)

PR 00905.028 Missouri

A. PR 16-112 Whether a Child Can Receive Benefits on the Record of His Non-Biological Parent Married to the Child’s Biological Mother (Same-Sex)

DATE: April 7, 2016

1. Syllabus

The number holder (NH) and B~ are a same-sex couple that married in January 2015 in Missouri. Approximately three months later, B~ gave birth to the claimant, H~ in May. While the claimant is not the biological child of the NH, the NH’s parentage is presumed as the claimant was born in wedlock between the NH and the mother. The parent-child relationship is also established as the NH is listed as a parent on the claimant’s birth certificate. According to the NH, prior to the claimant’s conception, the couple agreed that the mother should conceive the claimant with an unidentified man, who reportedly has terminated his parental rights. Since the NH was domiciled in Missouri at the time of the claimant’s application, Missouri intestacy law applies. Under Missouri law, children born in wedlock are presumed to be the legitimate issue of the marital spouses and are entitled to the rights of support and inheritance. While no Missouri court has considered whether the parentage presumption described in the common law or the Uniform Parentage Act applies to the non-biological parent/spouse in a same-sex marriage, a Missouri court would likely apply the presumption to the non-birthing spouse. Under section 416(h)(2)(A) of the Act, the claimant is the NH’s child and deemed dependent. Accordingly, the claimant is entitled to child’s insurance benefits on the NH’s record.

2. Opinion

ISSUE PRESENTED

You asked whether minor child H~ (the claimant), who is the biological child of B~ (the mother), is entitled to child’s insurance benefits on the Social Security record of number holder R~ (née I~) (NH). The NH has been married to the mother since before the claimant’s birth, and the NH is identified as a parent on the claimant’s birth certificate. The family resides together in Missouri.

SHORT ANSWER

While the claimant is not the biological child of the NH, the NH’s parentage is presumed as the claimant was born in wedlock between the NH and the mother. The parent-child relationship is also established as the NH is listed as a parent on the claimant’s birth certificate. A Missouri court, therefore, would likely find that the claimant is entitled to inherit from the NH under Missouri intestacy law. Under section 416(h)(2)(A) of the Act, the claimant is the NH’s child and deemed dependent. Accordingly, you can find he is entitled to child’s insurance benefits on the NH’s record.

FACTUAL BACKGROUND

On January XX, 2015, the NH and the mother married in C~, Missouri. Approximately three months later, the claimant was born on May XX, 2015, in S~ County, Missouri. His birth certificate lists the mother as “mother” and the NH as “father.” The claimant is the biological child of the mother. The NH does not have a biological connection to the claimant. According to the NH, prior to the claimant’s conception, the couple agreed that the mother should conceive the claimant with an unidentified man, who reportedly has terminated his parental rights.

On November XX, 2015, the claimant filed an application for child’s benefits on the record of the NH.

ANALYSIS

  1. Federal Law

    • Under the Social Security Act (Act), a child of an insured worker who is dependent upon the insured may receive auxiliary child’s insurance benefits on the record of a worker who receives disability or retirement benefits. 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 was domiciled at the time of the child’s application. See 42 U.S.C. § 416(h)(2)(A). Here, Missouri intestacy law applies because the NH was domiciled in Missouri at the time of the claimant’s application.

  2. Missouri Law

    • Under Missouri law, a child may inherit if he or she is the issue or child of the decedent. See Mo. Ann. Stat. § 474.010. The Probate Code defines “issue” or “child” broadly. See Mo. Stat. Ann. § 472.010(2) (“‘Child’ includes an adopted child and a child born out of wedlock, but does not include a grandchild or other more remote descendants.”); id. at § 472.010(16) (“‘Issue’ of a person, when used to refer to persons who take by intestate succession, includes adopted children and all lawful lineal descendants, except those who are the lineal descendants of living lineal descendants of the intestate.”); id. at § 474.010(22) (“‘Lineal descendants’ include adopted children and their descendants.”).

    • While the Missouri Probate Code governs determinations of parentage, one may use the evidentiary standards and presumptions of the common law or the Missouri Uniform Parentage Act (UPA) in proving parentage. See LeSage v. Dirt Cheap Cigarettes and Beer, Inc., 102 S.W.3d 1, 4 (Mo. 2003) (citing In re Nocita, 914 S.W.2d 358, 359 (Mo. 1996)); Matter of Charles H. Stix Testamentary Trust Dated August 7, 1945, 2015 WL 1915279, at *2 (Mo. App. E.D. 2015) (“It has long been the law of this state that a child born during a marriage is legally presumed to be the husband’s offspring for all purposes, including matters of probate and inheritance.”). Under Missouri common law, children born in wedlock are presumed to be the legitimate issue of the marital spouses and are entitled to the rights of support and inheritance. See In the Matter of Stix, 2015 WL 1915279, at *2; In re: L., 499 S.W.2d 490, 492 (Mo 1973) (en banc) (noting the “ancient presumption that a child born in wedlock is presumed to be legitimate”); B.S.H. v. J.J.H., 613 S.W.2d 453, 457 (Mo. App. W.D. 1981) (“A child born in wedlock is presumed to be legitimate irrespective of whether or not the conception of child may be calculated to have occurred before the marriage.”). The UPA also provides that children born in wedlock are presumed to be the legitimate issue of the husband. See Mo. Stat. Ann. § 210.822.

    • While no Missouri court has considered whether the parentage presumption described in the common law or the UPA applies to the non-biological parent/spouse in a same-sex marriage, a Missouri court would likely apply the presumption to the non-birthing spouse.

      • First, such a ruling is consistent with a plain reading of the entire UPA, which provides that the UPA provisions relating to the father also apply to the mother. See Mo. Stat. Ann. §§ 210.819(1), (2) (providing that the parent-child relationship for the mother or father may be established under the provisions of sections 210.817 to 210.852).

      • Second, applying the presumption to same-sex spouses, as it is applied to opposite-sex spouses, serves the “fundamental goal [of] the establishment of ‘uniformity among paternity determinations across the state.’” See In re Marriage of Fry, 108 S.W.3d 132, 135 (Mo. App. S.D. 2003) (quoting Piel v. Piel, 918 S.W.2d 373, 375 (Mo. App. E.D. 1996)).

      • Third, it is consistent with public policy that seeks to secure and promote the welfare and support of children. See, e.g., Piel, 918 S.W.2d at 375 (“The purpose of the UPA was to establish a uniform method for determining paternity which would protect the rights of all parties involved, especially the children”)); Michael H. v. Gerald D., 491 U.S. 110, 124-25 (1989) (noting the presumption of legitimacy ensures a child’s right of inheritance and promotes the peace and tranquility of families).

      • Fourth, applying the parentage presumption to same-sex marriages is also consistent with Governor Jay Nixon’s Executive Order 15-04, which provided “all rights, privileges and obligations” of marriage now also apply to same-sex marriages. See Office of Missouri Governor Jay Nixon, Exec. Order 15-04 (July 7, 2015), available at https://governor.mo.gov/news/executive-orders/executive-order-15-04 (last visited on Dec. 22, 2015).

      Finally, applying the parentage presumption to the non-birthing same-sex spouse is consistent with the holdings of other courts who have considered the issue. See Gartner v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335, 353 (Iowa 2013), as amended (May 23, 2013) (finding presumption of parentage applies to same-sex couple and presumption of parentage statute that precluded naming non-birthing same-sex spouse on birth certificate violated the Iowa constitution); Wendy G-M. v. Erin G-M., 985 N.Y.S.2d 845, 848 (Sup. Ct. of Monroe Cty. May 7, 2014) (Under New York common law, female non-birthing spouse was presumed parent of child conceived by artificial insemination and born during marriage of same-sex couple.); Barse v. Pasternak, No. HHBFA124030541S, 2015 WL 600973, at *10 (Conn. Super. Ct. of New Britain Jan. 16, 2015) (unpub.) (“[E]ver mindful of Connecticut’s strong policy in favor of legitimacy, this court finds that the protections of Connecticut’s common-law presumption of legitimacy apply equally to children of same-sex and opposite-sex married couples and that the marital presumption applies equally to same-sex and opposite-sex marriages.”) (citing Hunter v. Rose, 975 N.E.2d 857, 861 (Mass. 2012) (finding the same-sex spouses both to be legal parents given that “[u]nder Massachusetts law, children born into a legal spousal relationship are presumed to be children of both spouses”) and Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 969-71 (Vt. 2006) (finding same-sex couple’s legal union at the time of the child’s birth is extremely persuasive evidence of joint parentage in that the presumption of legitimacy applies)); see also Chatterjee v. King, 280 P.3d 283, 289-92 (N.M. 2012) (New Mexico UPA should apply equally to men and women) (also collecting similar holdings in cases from California, Colorado, Oregon, and New Jersey).

While the claimant is not the biological child of the NH, the NH’s parentage is presumed as the claimant was born in wedlock between the NH and the mother. The parent-child relationship is also established as the NH is listed as a parent on the claimant’s birth certificate. See Mo. Stat. Ann. § 193.255 (A certified copy of a vital record shall be prima facie evidence of the facts stated therein.). A Missouri court, therefore, would likely find that the claimant is entitled to inherit from the NH under Missouri intestacy law. Under section 416(h)(2)(A) of the Act, the claimant is the NH’s child and deemed dependent. Accordingly, you can find he is entitled to child’s insurance benefits on the NH’s record.

CONCLUSION

For the reasons outlined above, the claimant would be entitled to benefits on the NH’s record as her child.

Kristi A. Schmidt

Chief Counsel, Region VII

By Ellie Dorothy

Assistant Regional Counsel


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PR 00905.028 - Missouri - 08/08/2016
Batch run: 08/08/2016
Rev:08/08/2016