TN 1 (07-15)

PR 00905.032 New Hampshire

June 3, 2015

A. PR 15-140 Child’s Insurance Benefit (CIB) Eligibility Based on Child-Parent Relationship where the Number Holder (NH) is not a Biological Parent, but Entered a Same-Sex Marriage in Massachusetts with the Child’s Mother Prior to the Child’s Birth and where the NH Resides in New Hampshire

1. Syllabus

The claimants are entitled to Child’s Insurance Benefits (CIB) as the number holder’s (NH) children because a child-parent relationship is established for purposes of Title II of the Act. The NH was married to the claimants’ biological mother in Massachusetts, and their marriage was valid under Massachusetts law at the time of the claimants’ births. The couple is now divorcing and have a shared custody agreement in place. The NH now resides in New Hampshire. Under New Hampshire inheritance laws, the claimants are considered the legitimate or “natural” children of the NH and could inherit if the NH were to die intestate.

2. Opinion


 You asked whether a child-parent relationship exists between A~ (NH) and V~ and J1~ (claimants) for purposes of determining the claimants’ entitlement to CIB under Title II of the Social Security Act (Act). The NH was married to the claimants’ biological mother (J2~) in Massachusetts at the time the claimants were born.  The NH currently resides in New Hampshire.  

 Short Answer  

Yes. The claimants are entitled to CIB as the NH’s children because a child-parent relationship is established for purposes of Title II of the Act.


 The NH and J2~ were married on May XX, 2004, in S~, Massachusetts. Their marriage is valid under Massachusetts law, which has recognized same-sex marriages since 2004. Same-sex marriages have been valid in Massachusetts since May 17, 2004, as a result of the Supreme Judicial Court’s decision in Goodridge v. Dep’t of Public Health, 798 N.E. 2d 941 (Mass. 2003). Two years after the couple married, V~ was born on August 2006. J1~ was born on August 2008. Both claimants were born in M~, Massachusetts, and both birth certificates list A~ as the “father” and J2~ as the “mother.” J2~ is the biological mother to both claimants. At this time, the couple is divorcing and have a shared custody agreement in place.

 The NH, now resides in New Hampshire, and is currently receiving Social Security disability benefits under Title II.       


 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 NH, 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 governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application.” In this case, we evaluated whether the claimants would be considered the “natural child[ren]” of the NH under 20 C.F.R. § 404.355 because the facts of the case failed to support any of the alternative “child” classifications. The claimants were not legally adopted by the NH. 20 C.F.R. § 404.356. The claimants also fail to satisfy the definition of “stepchild[ren]” under our rules because they were both conceived and born during the couple’s marriage. 20 C.F.R. § 404.357. Lastly, the NH is not the claimants’ grandparent. 20 C.F.R. § 404.358. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(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, he is deemed the insured’s “child” under the Act. Since the NH is domiciled in New Hampshire, we apply New Hampshire intestacy law to determine whether the claimants are the NH’s children for the purposes of the Act.

State Law

 The New Hampshire inheritance laws relevant to this issue are codified at Section 561:1 of the New Hampshire Revised Statutes Annotated. N.H. Rev. Stat. Ann. § 561:1 et seq. Under that section, 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. N.H. Rev. Stat. Ann. § 561:1. Section 21:20 defines “issue,” in this context, as “all the lawful lineal descendants of the ancestor.” N.H. Rev. Stat. Ann. § 21:20. In Merrow v. Merrow, 105 N.H. 103, 106, 193 A.2d 19, 21 (1963), the Supreme Court of New Hampshire explained that “‘Issue’ in its ordinary meaning is descriptive of lineal descendants of deceased, including children, grandchildren, and great grandchildren.” Thus, if a parent-child relationship has been established under New Hampshire law, then that child will be entitled to inherit property when the parent dies without a will and, for our purposes, will be considered a “natural child” of that parent under 20 C.F.R. § 404.355.

Under Section 458:23 of the New Hampshire Revised Statutes, “children born of a marriage entered into in good faith by the parties thereto shall be regarded as legitimate children and their legitimacy shall not be affected by a decree of nullity, unless it shall be so expressed in the decree.” N.H. Rev. Stat. Ann. § 458:23. See also Bodwell v. Brooks,  141 N.H. 508, 510, 686 A.2d 1179, 1181 (1996) (noting that under common law and by statute, children conceived or born during lawful marriage are presumed to be legitimate.). Although the couple in Bodwell were opposite sex spouses, we believe the same presumption would apply to children born during same-sex marriages because such marriages have been legally recognized in New Hampshire since 2009 On January 1, 2010, same-sex marriage became legal in New Hampshire. N.H. Rev. Stat. Ann. § 457:1-a. and because New Hampshire also recognizes valid same-sex marriages from other states. N.H. Rev. Stat. Ann. § 457:3. See also In re Guardianship of Madelyn B., 166 N.H. 453, 460, 98 A.3d 494, 500 (2014) (holding that N.H. Rev. Stat. Ann. § 168-B:3 applies equally to women and men in a parental legitimacy dispute involving a same-sex, unmarried couple, stating “The policy goals of ensuring legitimacy and support would be thwarted if our interpretation of RSA 168–B:3 failed to recognize that a child’s second parent under that statute can be a woman.”)  

This presumption of parenthood is rebuttable, however, “if the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, show that the husband is not the father of the child.” N.H. Rev. Stat § 522:5. Evidence to rebut presumption of legitimacy may include blood tests, expert or lay testimony, medical or scientific evidence, statistical probability evidence, proof of voluntary acceptance of parental responsibility, estoppel for failure to question paternity after substantial period of uninterrupted acquiescence, and physical resemblance between child and putative father. Bodwell, 141 N.H. at 510,  686 A.2d at 1181-82. In this case, there has been no attempt on the part of the NH to rebut this presumption. On the contrary, both parties have entered into a joint parenting agreement, explicitly detailing the joint custody and decision-making authority that will exist once the couple’s divorce becomes final. For this reason alone, we do not believe the presumption of parenthood would be disturbed. Thus, under New Hampshire inheritance law (which also encompasses general parent-child law in the State), we believe the children would be considered the legitimate or “natural” children of the NH.   


 Under New Hampshire inheritance laws the claimants could inherit as the NH’s children if the NH were to die intestate. Accordingly, we conclude that the claimants should be viewed as the NH’s “children” for the purposes of determining eligibility for child’s insurance benefits under the Act.

Christopher Michaels

Regional Chief Counsel (Acting)

By: Candace Lawrence  

Assistant Regional Counsel

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PR 00905.032 - New Hampshire - 07/06/2015
Batch run: 02/03/2017