TN 13 (08-16)

PR 00905.053 Washington

A. PR 16-121 Relationship of a Child to a Number Holder in the State of Washington

Date: May 3, 2016

1. Syllabus

The evidence suggests that the number holder’s (NH) domicile is Washington; therefore, we look to the Washington intestacy laws to determine the parent-child relationship between the NH and claimant. Under the Washington law, 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.

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. 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.

In this case, at least two of these conditions are met. 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, and the NH promised in the petition to support the claimant as her own. Because the NH has satisfied the requirements of the statutory presumption of parentage, the claimant is legally the child of the NH. The claimant meets the definition of child for the purposes of child insurance benefits under Title II of the Act and is entitled to benefits on the NH’s record.

2. Opinion

QUESTION PRESENTED

Is the claimant the child of the insured number holder (NH) for the purposes of child’s insurance benefits when applying Washington State law?

BRIEF ANSWER

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.

ANALYSIS

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.1 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. Id.

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.”).2 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).

Analysis

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.3

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).

CONCLUSION

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 benefits.


Footnotes:

[1]

Though this opinion only refers to marriage, these provisions also apply in the context of a domestic partnership.

[2]

In 2011, the Washington State legislature amended this provision to render it gender neutral and remove any terms referring to marriage. Wash. HB 1267 (2011).

[3]

Alternative paths to establishing parentage are also available to the NH, though the evidence as it stands is insufficient to support conclusions. Using any of these paths would require re-contacting the NH to obtain the required evidence. First, the presumption of parentage described above is available to the NH if she lived in the same household as the claimant and held the claimant out as her child. Rev. Code Wash. § Rev. Code Wash. § 26.26.116(2). Though the petition she filed in Colorado District Court presents an intent to do so, evidence that she actually met these requirements was not provided with the request for legal opinion. If such evidence exists, it would provide an alternative means to meet this presumption. Secondly, the NH’s petition indicated that she and W~ both agreed to the assisted reproduction that led to the conception of the claimant. Evidence of the consent to the assisted reproduction in a writing signed by W~ and the NH might establish parentage. Rev. Code Wash. § 26.26.720. Finally, if the petition for parental rights filed in Colorado resulted in a court order of parentage, such order might serve as an adjudication of parental rights and establish a parent–child relatio