TN 26 (11-12)

PR 01005.015 Idaho

A. PR 13-007 Rebuttal of the Presumption of Legitimacy—Applications for Surviving Child’s Insurance Benefits on the Record of Mr. J.S.

DATE: June 1, 2012

1. SYLLABUS:

SSA must presume that the children are the legitimate, “natural” children of the deceased NH because there is insufficient evidence to rebut the presumption of legitimacy. However, an insured’s “natural” child must still meet one of four conditions before he would meet the Act’s definition of “child” for purposes of surviving child’s insurance benefits. In this case, the deceased NH’s children do not meet the only condition potentially applicable to them—inheritance under Idaho’s intestacy laws. The NH’s parental rights were terminated by state court decree. Under the Idaho state law, this decree had the effect of terminating all rights of inheritance to and from the claimants, therefore the claimants are not the deceased NH’s children within the meaning of the Act and the children are not entitled to survivors child’s benefits on the deceased NH’s record.

2. OPINION

QUESTIONS PRESENTED

Two children, Y.S. and E.S., were born during their mother’s marriage to Mr. J.S. An Idaho state court terminated Mr. J.S.’s parental rights approximately three years before he died. On the claim for surviving child’s insurance benefits, you asked whether there was sufficient evidence to rebut the presumption that Y.S. and E.S. were the legitimate children of Mr. J.S.

After you posed this question, the United States Supreme Court decided the case of Astrue v. Capato ex rel. B.N.C., which discussed the definition of “child” in the Social Security Act (Act). In light of the C~ decision, and the evidence presented in this claim, we must also address the issue of whether Y.S. and E.S. were Mr. J.S.’s “child[ren]” for purposes of surviving child’s insurance benefits under the Act.

BRIEF ANSWER

The answer to both questions is “no.”  There is insufficient evidence to rebut the presumption that Y.S. and E.S. are the legitimate, “natural” children of Mr. J.S. However, consistent with the reasoning in C~, Y.S. and E.S. could only establish that they are Mr. J.S.’s “child[ren]” for purposes of surviving child’s insurance benefits if they could inherit from Mr. J.S. under the state intestacy laws of Idaho. Under Idaho law, the termination of Mr. J.S.’s parental rights also terminated “all rights of inheritance to and from” Y.S. and E.S.  Thus, Y.S. and E.S. are not Mr. J.S.’s “child[ren]” within the meaning of the Act, and they are not entitled to surviving child’s insurance benefits on Mr. J.S.’s record.

 SUMMARY OF FACTS

Mr. J.S. and Mrs. S. were married in 1993. Y.S. was born approximately eleven months later, and the birth certificate identified Mr. and Mrs. S. as Y.S.’s parents.  E.S. was born in 2001, and the birth certificate identified Mr. and Mrs. S. as E.S.’s parents. Shortly after E.S. was born, Mr. and Mrs. S. separated and had an “off and on relationship from that point on,” but they never divorced.

By decree in 2007, an Idaho state court found, in relevant part, that Mr. J.S. had abandoned Y.S. and E.S. by failing “to provide for their emotional or financial support or to establish and maintain a normal parent-child relationship with [them].” It concluded that Mr. J.S. had abandoned and neglected Y.S. and E.S. by failing “to provide support for [them] or to establish and maintain a relationship with [them].” The state court also concluded that Mr. J.S. had abandoned and neglected Y.S. and E.S. “by being unwilling to and not providing for the[ir] morals and well-being.” The state court then terminated Mr. J.S.’s parental rights as to both Y.S. and E.S., thereby “relinquishing completely and forever all legal rights, privileges, duties and obligations, including all rights of inheritance to and from said children.”

Mr. J.S. died in late 2010, and he was domiciled in Idaho at the time of his death. In January 2011, Mrs. S. applied for surviving child’s insurance benefits on Mr. J.S.’s record on behalf of Y.S. and E.S. In a written statement dated in September 2011, Mrs. S. stated that Mr. J.S. was not the biological father of either Y.S. or E.S. A couple of months later, the Idaho Department of Health & Welfare reported that Mrs. S. had identified C.M. as Y.S.’s biological father and Z.M. as E.S.’s biological father.  The department did not have any genetic or paternity testing concerning Y.S. and E.S.

ANALYSIS

A.     The “Child” Requirement for Entitlement to Surviving Child’s Insurance Benefits

Under the Act, a claimant may be entitled to surviving child’s insurance benefits if he is the “child” of an insured individual. In addition to being a “child,” the claimant must file an application; be a “dependent” of the insured at the time of the insured’s death; be unmarried; and be either under the age of 18, a full-time elementary or secondary school student under the age of 19, or under a disability that began before the age of 22. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a).

 42 U.S.C. § 402(d); 20 C.F.R. §§ 404.350(a)(1) (2011). Subject to applicable requirements, any one of several categories of children could satisfy the Act’s definition of “child,” including “natural” children, legally adopted children, equitably adopted children, stepchildren, grandchildren, and stepgrandchildren. 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354-.359. Here, Y.S. and E.S. must show that they are the “natural” children of Mr. J.S. There is no allegation or evidence that Y.S. and E.S. were the adopted children, stepchildren, grandchildren, or stepgrandchildren of Mr. J.S.

In Idaho, there is a rebuttable presumption that the mother’s husband is the father of a child born during wedlock. Idaho Code Ann. § 7-1119; Alber v. Alber, 472 P.2d 321, 326-27 (Idaho 1970).  This presumption of legitimacy can be rebutted by: (1) “[g]enetic tests which show that the husband is not the father of the child”; or (2) “[a]n affidavit of nonpaternity signed by the natural mother and her husband and an affidavit of paternity signed by the natural mother and natural father.” Idaho Code Ann. § 7-1119. Here, the presumption of legitimacy is not rebutted. Mr. and Mrs. S. were married before, during, and after the conception and birth of both Y.S. and E.S.  There are no genetic tests showing that Mr. J.S. was not the father of Y.S. and E.S. Although Mrs. S. now alleges that other men fathered Y.S. and E.S., and that Mr. J.S. was therefore not the biological father of Y.S. and E.S., there are no affidavits of paternity and nonpaternity as required by Idaho law to rebut the presumption of legitimacy.  Thus, SSA must presume that Y.S. and E.S. are the legitimate, “natural” children of Mr. J.S.

However, as confirmed by the recent United States Supreme Court case of Astrue v. Capato ex rel. B.N.C., — S.Ct. —, 2012 WL 1810219 at *2 (May 21, 2012), “[a] biological parent is not always a child’s parent under law.” In order to be eligible for surviving child’s insurance benefits as an insured’s “natural” child, a claimant must meet one of the following four conditions: Prior to Capato, the Ninth Circuit took a broad view of the Act’s definition of “child” and minimized the role of 42 U.S.C. § 416(h)(2) & (h)(3) and 20 C.F.R. § 404.355 in analyzing the Act’s definition of “child.” Gillett-Netting v. Barnhart, 371 F.3d 593, 596-97 (9th Cir. 2004). Specifically, the Ninth Circuit found that the children in that case satisfied the Act’s definition of “child” because they were the insured’s “natural, biological children,” without analyzing whether they also met the conditions set forth in 42 U.S.C. § 416(h)(2) & (h)(3) and 20 C.F.R. § 404.355. Id. SSA disagreed with the Ninth Circuit’s interpretation of the Act, but applied it in cases arising in the Ninth Circuit. See Social Security Acquiescence Ruling 05-1(9), 70 Fed. Reg. 55656 (2005). Eventually, in the Capato case, the Supreme Court agreed with SSA’s interpretation of the Act, thereby implicitly overruling the Gillett-Netting case. Thus, in the Ninth Circuit, 42 U.S.C. § 416(h)(2) & (h)(3) and 20 C.F.R. § 404.355 must now be applied in analyzing whether an insured’s “natural” child meets the Act’s definition of “child.” C~, WL 1810219 at *5 (recognizing that the regulations at § 404.355 “closely track 42 U.S.C. § 416(h)(2) and (h)(3)”).

  1. The claimant could inherit the insured’s personal property as the insured’s natural child under state inheritance laws if the insured had died without leaving a will. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), (b)(1) & (4).

  2. The claimant is the insured’s natural child, and the insured and the claimant’s mother or father went through a ceremony which would have resulted in a valid marriage between them except for a legal impediment. 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).

  3. The claimant is the insured’s natural child, and the claimant’s mother or father has not married the insured, but the insured has either acknowledged in writing that the claimant is his or her child, been decreed by a court to be the claimant’s mother or father, or been ordered by a court to contribute to the claimant’s support because the claimant is his or her child. 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3).

    or

  4. The claimant’s mother or father has not married the insured but the claimant has evidence, other than evidence described in the preceding paragraph, to show that the insured is the claimant’s natural father or mother, as well as evidence to show that the insured was either living with the claimant or contributing to the claimant’s support when he or she died. 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4).

An insured’s “natural” child must satisfy one of these four conditions in order to qualify as a “child” for purposes of surviving child’s insurance benefits. C~, 2012 WL 1810219 at *6 (“The regulations make clear that the SSA interprets the Act to mean that the provisions of § 416(h) are the exclusive means by which an applicant can establish ‘child’ status under § 416(e) as a natural child.”) (quoting Beeler v. Astrue, 651 F.3d 954, 960 (8th Cir. 2011)). Here, only the first condition—pertaining to state inheritance laws—is potentially applicable to Y.S. and E.S.  The second condition does not apply because there is no allegation or evidence that Mr. and Mrs. S.’s marriage was invalid due to a “legal impediment,” and the third and fourth conditions do not apply because Mr. and Mrs. S. were married.

Thus, in order to be Mr. J.S.’s “child[ren]” for purposes of surviving child’s insurance benefits, Y.S. and E.S. must show that they could inherit from Mr. J.S. under the intestacy laws of Idaho, the state in which Mr. J.S. was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) & (4).

B. Idaho Intestacy Laws

Where, as here, there is a surviving spouse of a decedent, the “issue” of the decedent could inherit one half of the decedent’s separate (non-community) property if the decedent died without leaving a will. Idaho Code Ann. §§ 15-2-102, 15-2-103. The “issue” of a decedent “means all of his lineal descendants of all generations, with the relationship of parent and child at each generation determined by the definitions of child and parent contained in this code.” Idaho Code Ann. § 15-1-201(26). Thus, if Y.S. and E.S. met the definition of “child[ren]” of Mr. J.S. under the Idaho probate code, they would be Mr. J.S.’s “issue” and could therefore inherit one half of Mr. J.S.’s separate (non-community) property if he died without leaving a will.

In relevant part, the Idaho probate code defines “child” as “any individual entitled to take as a child under this code by intestate succession from the parent whose relationship is involved