You asked us to determine whether a parent-child relationship was established under
Virginia law between the Number Holder (NH), M~, and M2~, the claimant, the biological
child of the NH’s same-sex spouse, V~ (V~) for purposes of determining the claimant’s
entitlement to child’s insurance benefits (CIB) under Title II of the Social Security
We believe that the Virginia courts will likely find that a parent-child relationship
was established under Virginia law to allow the claimant to inherit as the NH’s child
under Virginia’s intestacy statutes. Thus, we believe a parent-child relationship
likely exists for purposes of Title II of the Act.
The NH began receiving disability benefits in July 1996. The NH and her spouse, V~,
were married on February XX, 2005, in Massachusetts, which has recognized same-sex
marriages since 2004. Nearly six years after the couple married, on January XX, 2011, V~ gave birth to
the claimant in Virginia. The claimant is not the biological, adopted, or step-child of the NH. The claimant’s
birth certificate issued on June XX, 2015, lists V~ as the claimant’s “mother” and
the NH as the claimant’s “father.”
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.” 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 ...”). Since the NH is domiciled in Virginia, we apply Virginia
intestacy law to determine whether the claimant is NH’s child for the purposes of
State and Federal Law
The Virginia Code provides that a child can inherit from a parent through intestate
succession. Va. Code Ann. § 64.2–200 (West 2017). In terms of the parent-child relationship,
the Virginia Code provides that “[t]he parentage of a child resulting from assisted
conception is determined as provided in Chapter 9 (§ 20-156 et seq) of Title 20.” Va. Code Ann. § 64.2-102 (West 2017). Pursuant to Chapter 9 (§ 20-156
et seq) of Title 20, in cases of assisted conception, parentage is established as follows:
1) the gestational mother of a child is the child’s mother; 2) the husband of the
gestational mother is the child’s father; and 3) a donor is not the parent of the
child, unless that donor is the husband of the gestational mother. Va. Code Ann. §
20-158 (West 2017).
No Court has interpreted Chapter 9 (§ 20-156 et seq) of Title 20 in the context of a same-sex marriage. That said, case law and state
agency determinations shed light on how Virginia courts would likely interpret such
On February 13, 2014, the United States District Court for the Eastern District of
Norfolk Division ruled that Virginia’s laws defining marriage as between one man and
one woman and prohibiting recognition of a union between two people of the same sex
were unconstitutional. Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014), amended and superseded by 2014 WL 10022686, aff’d sub nom Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied, 190 L. Ed. 2d 140 (2014). Specifically,
the Court held that “[t]hese laws deny [same-sex couples] their rights to due process
and equal protection guaranteed under the Fourteenth Amendment of the United States
Constitution.” Id. at 484.
The Fourth Circuit affirmed the District Court’s judgment on July 28, 2014. Schaefer, 760 F.3d at 384. On October 6, 2014, the United States Supreme Court denied the
three outstanding petitions for writ of certiorari as to the Fourth Circuit’s affirmance.
Rainey v. Bostic, 190 L. Ed. 2d 140 (2014); Schaefer v. Bostic, 190 L. Ed. 2d 140 (2014); McQuigg v. Bostic, 190 L. Ed. 2d 140 (2014).
Subsequent to the decision in Bostic, the Fairfax County Clerk of Court asked the Virginia Attorney General to provide
an advisory opinion as to whether Bostic altered the term “husband and wife” as used for purposes of the recordation of a
tax exemption as set forth by the Virginia Code. 2014 WL 7407210, at *1 (Va. A.G.
Dec. 18, 2014). On December 18, 2014, the Virginia Attorney General found that it
did and further stated:
I note that, while your request addresses only one specific occurrence of “husband
and wife”, the term, along with “man and wife,” “wife,” and “husband” appears in the
Code of Virginia no fewer than 61 times, applying to subjects ranging from insurance contracts, to
joint ownership of property, and to adoption. See, respectively, Va. Code Ann.
§§ 38.2-302 (2014), 55-20.2 (2012), 63.2-1215 (2012). The guarantees of equal protection
and due process apply equally to these provisions, and they must be applied equally
to all legal marriages. As Bostic v. Rainey makes clear, the Constitution of the United States requires no less.
2014 WL 7407210, at *3, n 14 (Va. A.G. Dec. 18, 2014). Neither the Virginia Attorney
General’s opinion, nor its content has been interpreted by a Court, but the opinion
can be fairly read to state that Chapter 9 (§ 20-156 et seq) post-Bostic likely means that in the case of a same-sex marriage involving assisted conception
that the same-sex spouse of the child’s gestational mother is the child’s parent.
The following month, on January 22, 2015, the Commonwealth of Virginia Department
of Health, Division of Vital Records, through the Director and State Registrar, wrote
a letter to hospital administrators stating that based on Bostic where a child is conceived by assisted conception and there are two female spouses
in a legal marriage, both spouses can be listed on their child’s birth certificate. This letter is notable because the Virginia Code states that “[f]or the purpose of
birth registration in the case of a child resulting from assisted conception, pursuant
to Chapter 9 (§ 20-156 et seq.) of Title 20, the birth certificate of such child shall contain full information
concerning the mother’s husband as the father of the child and the gestational mother
as the mother of the child.” Va. Code Ann. § 32.1-257 (West 2017). In other words,
the Virginia Department of Health interpreted the Virginia Code post-Bostic to stand for the proposition that in the case of assisted conception, a same-sex
spouse of the child’s gestational mother is the child’s parent, regardless of the
use of the terms “husband” and “father” in Chapter 9 (§ 20-156 et seq.) of Title 20 of the Virginia code
In sum, while no Court has interpreted Chapter 9 (§ 20-156 et seq) of Title 20 in the context of a same-sex marriage, the federal courts’ determination
in Bostic, the Virginia Attorney General’s Opinion in December 2014, and the Virginia Department
of Health’s letter to hospital administrators in January 2015, appear to indicate
that the Virginia courts will likely find— in the case of assisted conception—the
existence of a parent-child relationship between the child and the same-sex spouse
of the child’s gestational mother.
In conclusion, we believe that the Virginia courts will likely find that a parent-child
relationship was established under Virginia law to allow the claimant to inherit as
the NH’s child under the Virginia intestacy statutes. Thus, we believe a parent-child
relationship exists between the claimant and the NH for purposes of Title II of the
Acting Regional Chief Counsel
By: Stuart Weiss
Assistant Regional Counsel