Is the claimant the child of the insured number holder (NH) for the purposes of child’s
insurance benefits when applying Washington State law?
Yes. Because the NH has satisfied the requirements of the statutory presumption of
parentage, the claimant is legally the child of the number holder. Accordingly, the
claimant can inherit as the NH’s child and is therefore her child under Title II of
the Social Security Act (the Act).
SUMMARY OF FACTS
On November XX, 2001, the claimant, H~, was born in D~, Colorado. Her birth certificate
lists W~ as her mother and the NH, B~, as her co-parent. Prior to the claimant’s birth,
W~ and the NH filed a petition in the District Court of Boulder County, Colorado to
recognize the NH as the parent of the claimant. The petition explained that the claimant
was conceived through assisted reproduction and carried by W~. On December XX, 2013,
W~ and the NH were married in S~, Washington, where they shared a residence.
Federal Law on Child’s Benefits Under Title II
Under the Act, an individual may be eligible for child survivor’s insurance benefits
if: (1) she is the “child” of the insured, as defined in the Act; and (2) she was
“dependent upon” the insured at the time of application. 42 U.S.C. § 402(d); 20 C.F.R.
§ 404.350. For the purposes of child’s insurance benefits, “child” is defined as the
natural child, legally adopted child, stepchild, or grandchild or stepgrandchild of
the insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); see also 20 C.F.R. §§ 404.350, 404.354-59.
Under one method for determining whether the claimant qualifies as the “child” of
an insured worker, the agency 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” the application. 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.355(a)(1), (b) (if the insured is living, apply state law where insured
had permanent home at the time of the application); Program Operations Manual System
(POMS) GN 00306.001(C) (determining what state law applies). Here, the evidence suggests that the NH’s
domicile is Washington. Though earlier documents show the NH living in Colorado, the
latest document—her marriage certificate—lists her residence as S~, Washington. Therefore,
lacking any evidence that could establish otherwise, this opinion will consider Washington
as the NH’s domicile.
State Law on Intestacy and the Parent–Child Relationship
Washington State law provides that an intestate estate shall distribute to the decedent’s
spouse or domestic partner and to the decedent’s issue. Rev. Code Wash. § 11.04.015
(2014). “Issue” is defined as all the lineal descendants of an individual. Rev. Code
Wash. § 11.02.005 (8). A child is considered issue. In re Roberts’s Estate, 146 P. 398, 399 (Wash. 1915).
In order for an individual to be the child of another individual, there must be a
parent–child relationship, defined as a the legal relationship between a child and
the parent of the child. Rev. Code Wash. § 26.26.011. Parentage is established if
the person gives birth to the child, adopts the child, or is adjudicated as the child’s
parent. Rev. Code Wash. § 26.26.101. Furthermore, a rebuttable presumption of parentage
can arise when the child is born in the context of a marriage. A person is presumed to be the parent of a child if the child is born while the person
is married to the child’s mother or father, if the child is born within 300 days of
the dissolution of marriage between the person and the child’s mother or father, or
if the marriage between the person and the child’s mother or father is subsequently
declared invalid. Rev. Code Wash. § 26.26.116(1)(a)–(c).
Alternatively, if a person marries the child’s mother or father after the birth of
the child, a presumption of parentage arises only if the purported parent voluntarily
asserted parentage of the child and one of the following three conditions is satisfied:
the assertion of parentage is filed with the state registrar of vital statistics;
the purported parent agreed to be and is named as the child’s parent on the child’s
birth certificate; or the purported parent promised in a record to support the child
as his or her own. Rev. Code Wash. § 26.26.116(1)(d). Finally, a person is presumed
to be the parent of a child without marrying the child’s mother or father, if, for
the first two years of the child’s life, the person resided in the same household
with the child and openly held out the child as his or her own. Rev. Code Wash. § 26.26.116(2).
These provisions on parentage, including the presumption of parentage, are gender-neutral
and apply to same-sex couples who have children together to the same extent they apply
to opposite sex couples who have children together. Rev. Code Wash. § 26.26.051. The
presumption of parentage may only be rebutted by an adjudication in accordance with
Washington law. Rev. Code Wash. § 26.26.116(3). In general, genetic testing excluding
a person as a parent of the child is sufficient to rebut the presumption. Rev. Code
Wash. § 26.26.600(1)–(4). However, a rebuttal with genetic evidence does not apply
if the child was conceived through assisted reproduction. Rev. Code Wash. § 26.26.600(5).
In such circumstances, parentage can only be disproven by admissible evidence showing
the intent of the presumed, acknowledged, or adjudicated parent and the other parent.
Finally, parentage can also be established between a person and a child if the person
has consented to assisted reproduction with the child’s biological parent and the
assisted reproduction resulted in the birth of the child. Rev. Code Wash. § 26.26.720
(“A person who provides gametes for, or consents in a signed record to assisted reproduction
with another person, with the intent to be the parent of the child born, is the parent
of the resulting child.”). The consent must be in a record signed by both persons (not including the donor),
and the person must intend to be the parent of the child. Rev. Code Wash. §§ 26.26.710,
26.26.715(1). Lacking a signed record, a person may still establish parentage in a
case of assisted reproduction if both persons resided in the same household with the
child and openly held the child out as their own. Rev. Code Wash. § 26.26.715(2).
Here, the NH is not the biological parent of the claimant, and there is no evidence
that the NH has either adopted or been adjudicated as the claimant’s parent. However,
the NH meets the criteria of Rev. Code Wash. § 26.26.116(d)(1), thereby triggering
the presumption of parentage. As that provision states, when the purported parent
has married the child’s mother or father after the birth of the child (as is the case
here), the presumption applies to the purported parent where he or she has “voluntarily
asserted parentage of the child” and any one of three scenarios applies: (1) “[t]he
assertion is in a record filed with the state registrar of vital statistics,” (2)
the purported parent “agreed to be and is named as the child’s parent on the child’s
birth certificate,” or (3) the purported parent “promised in a record to support the
child as his or her own.” Rev. Code Wash. § 26.26.116(1)(d)(ii).
At least two of these scenarios apply in this case. The petition to the District Court
of B~ County, Colorado, indicated that the NH has voluntarily assented to be the parent
of the child and agreed to be listed as a parent on the claimant’s birth certificate.
NH is listed as a co-parent on the claimant’s birth certificate, as well. Therefore,
scenario (2) is met. Scenario (3) is satisfied, too, because the NH promised in the
petition to support the claimant as her own. Under Rev. Code Wash. § 26.26.116(1)(d),
the presumption of parentage applies.
Though this presumption can be rebutted, Washington law requires an adjudication to
do so. Rev. Code Wash. § 26.26.116(2). And, since the NH’s petition indicated that
the claimant was conceived through assisted reproduction, the genetic impossibility
of the NH being the claimant’s biological parent is insufficient to rebut the presumption.
Rev. Code Wash. § 26.26.600(5).
Because the claimant has a parent–child relationship with the NH, the claimant qualifies
as the NH’s child. Thus, the claimant may inherit as the NH’s issue. Accordingly,
the claimant meets the definition of child for the purposes of child insurance benefits
under Title II of the Act. 42 U.S.C. § 416(h)(2)(A).
Based on the foregoing analysis, the claimant is able to inherit as the NH’s child
and therefore meets the Act’s definition of child for the purposes of child’s insurance