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.
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.
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.
Regional Chief Counsel (Acting)
By: Candace Lawrence
Assistant Regional Counsel