QUESTION PRESENTED AND BRIEF ANSWER
You have asked whether the establishment of a parent-child relationship under Delaware’s
de facto parent law entitles a child to benefits on the earnings record of the de
facto parent. We have determined that an adjudication of de facto parenthood by the
Family Court in Delaware gives the child inheritance rights under Delaware law. Therefore,
the child of a de facto parent in Delaware is entitled to benefits on the de facto
parent’s earnings record.
On September 20, 2011, the Family Court of the state of Delaware issued an order
stating that Kathy (NH) is the de facto parent of Gabrielle. On November 21, 2011,
NH was granted a period of disability beginning on March 1, 2011. On January 18,
2012, Barbara, the aunt of Gabrielle, filed an application on NH’s earnings record
for child’s benefits on behalf of Gabrielle. On January 20, 2012, the Dover, Delaware
field office disallowed the application for child’s benefits for failure to establish
a parent-child relationship between Gabrielle and NH. On March 21, 2012, Mark, Esquire,
filed a request for reconsideration on behalf of his client, Kathy.
For the purposes of child’s benefits under the Social Security Act (Act), a “child”
is defined as the child, legally adopted child, stepchild, or, in limited circumstances,
grandchild of an insured individual. Sections 202(d), 216(e) of the Act. In determining
whether an applicant is the child of an insured individual for purposes of the Act,
the Commissioner shall apply the law governing the devolution of intestate personal
property applied by the courts of the state in which the insured individual is domiciled
at the time such applicant files the application. Astrue v. Capato, 132 S.Ct. 2021, 2030 (2012); section 216(h)(2)(A) This is the only provision of
the Act under which the claimant could qualify as NH’s “child,” because the other
two methods are not applicable to this case. Section 216(h)(2)(B) of the Act requires
that the NH go through a marriage ceremony with the child’s mother or father, resulting
in a purported marriage between them which but for a legal impediment would have been
a valid marriage. Act §§ 216(h)(2)(B); 216(h)(1)(B)(iv). Here, there was no such marriage. Section
216(h)(3) of the Act requires a biological relationship between the NH and the child.
POMS GN 00306.100 (Under section 216(h)(3) of the Social Security Act, the biological son or daughter
of a NH may be deemed to be his/her child for benefit purposes regardless of the child’s
status under State law if certain requirements are met). Gabrielle is not the biological
child of NH. of the Act. Because Kathy was domiciled in Delaware when Barbara filed
Gabrielle’s application for benefits, whether Gabrielle can be considered Kathy’s
child must be determined under Delaware intestacy law. Id.
Delaware’s laws of intestate succession do not provide any guidance in determining
whether a de facto child has inheritance rights. In Delaware, the part of an intestate
estate not passing to a surviving spouse, or the entire estate if there is no surviving
spouse, passes next to the “issue” of the decedent. 12 Del. C. § 503. For the purpose
of intestate succession, the term “issue” is defined as “all of the person’s lineal
descendants of all generations, with the relationship of parent and child at each
generation being determined by the definitions of parent and child contained in this
title.” 12 Del. C. § 101(3). The term “child” is defined as “any individual entitled
to take as a child under this title by intestate succession from the parent whose
relationship is involved and excludes any person who is only a stepchild, a foster
child, a grandchild, or any more remote descendant.” 12 Del. C. § 101 (1). 12 Del.
C. § 101(4). The term “parent” is defined as “any person entitled to take, or who
would be entitled to take if the child died without a will, as a parent under this
title by intestate succession from the child whose relationship is in question and
excludes any person who is only a stepparent, foster parent or grandparent.” As noted
by the court in Wilmington Trust Co. v. Chichester, 369 A.2d 701, 708 (Del. Ch. 1976), the term “issue” as used in the Delaware statutes
governing the probate of wills and administration of decedent’s estates is defined
by reference to definitions of “parent” and “child” and these terms are themselves
determined by reference to the statutes governing intestate succession.
12 Del. C. § 101(5). Section 508 of Title 12 further defines the meaning of the
term “child” for the purposes of intestate succession as it applies to adopted children
and children born out of wedlock, but does not discuss the meaning of the term as
it applies to a de facto parent and child. See 12 Del. C. § 508.
Because Delaware’s intestacy laws do not specify whether a de facto child may inherit
de facto parent, it is necessary to look at Title 13 of the Delaware Code, which governs
domestic relations, for additional guidance. In 2009, Delaware amended Chapter 8 of
Title 13, The Uniform Parentage Act to include “de facto parent status” as a method
of establishing a
parent-child relationship. 13 Del. C. § 8-201(c). De facto parent status is established
if the Family Court of Delaware determines that the de facto parent,
(1) Has had the support and consent of the child’s parent or parents who fostered
the formation and establishment of a parent-like relationship between the child and
the de facto parent;
(2) Has exercised parental responsibility for the child as that term is defined in
§ 1101 of Title 13 (domestic relations); and
(3) Has acted in a parental role for a length of time sufficient to have established
a bonded and dependent relationship with the child that is parental in nature.
Section 1101 of Title 13 of the Delaware Code defines “parental responsibilities”
as the care, support, and control of a child in a manner that provides for the child’s
necessary physical needs, adequate food, clothing, and shelter, and that also provides
for the mental health and emotional development of the child. We note that the federal
dependency requirements of the Act and regulations are not at issue in this case because
if a child establishes that she is the insured individual’s child under 216 (h)(2)
of the Act, she is deemed dependent upon the insured unless she has been adopted by
someone else and the insured is not living with the child or contributing to the child’s
support. See Act
§ 202(d)(3); Mathews v. Lucas, 427 U.S. 495, 514 n. 17 (1976); see also 20 C.F.R. § 404.361. There is no evidence to suggest that any of these exceptions
would apply in this case. 13 Del. C. § 1101. According to Section 8-201of Title 13
of the Delaware Code, there is no legal difference between the parent-child relationship
of a natural mother/father and child, an adoptive mother/father and child, and a de
facto parent and child.
13 Del. C. § 8-201.
The legislative history of the de facto parent amendment demonstrates that the Delaware
legislature intended to confer upon de facto parents and children the legal rights
and responsibilities of a parent-child relationship as set forth in the case of In re: H~, 806 A.2d 1179 (Del. Fam. 2001). See 2009 Delaware Senate Bill 84, 145th Assembly, First Regular Session, July 6, 2009,
available at 2009 DE S.B. 84 (NS). The H~ case (which dealt with second parent
adoptions) specified that the legal rights associated with a parent-child relationship
included the following:
The right to Social Security benefits;
The right to life insurance benefits;
The right to sue for wrongful death of a parent;
The right to inherit by and through each other; and
Eligibility for coverage under health insurance.
See H~, 806 A.2d at 1186. Thus, although de facto parent/child status is not addressed
by Delaware’s intestacy statutes, it is defined under the Uniform Parentage Act as
a relationship that would allow the de facto parent and child to inherit by and through
each other under the laws of intestate succession.
In short, we believe a Delaware court would find that the child of a de facto parent
is entitled to inherit from the de facto parent under Delaware’s laws of intestate
succession. Therefore the determination by a Delaware Family Court of a de facto
parent/child relationship is sufficient to establish entitlement to receive child’s
benefits on the de facto parent’s earnings record under the Act.
Accordingly, because NH’s status as the de facto parent of Gabrielle would entitle
Gabrielle to inherit personal property from NH pursuant to Delaware’s laws of intestate
succession, Gabrielle is entitled to receive child’s benefits on NH’s earnings record.
Acting Regional Chief Counsel
Assistant Regional Counsel