TN 34 (11-15)

PR 01105.037 North Dakota

A. PR 15–201 Relationship of Child to NH Based on a Same-Sex Relationship - North Dakota Intestacy Law

Date: September 25, 2015

1. SYLLABUS

The NH was domiciled in North Dakota at the time the claimant’s application was filed, therefore, North Dakota intestacy law determines the Claimant’s relationship with the NH. North Dakota Intestacy law provides that, if a parent-child relationship is established under the applicable sections of the North Dakota Intestacy law, the child is a child of the parent for purposes of intestate succession. In this case, the claimant’s birth certificate identifies the NH as a parent and the claimant does have inheritance rights to the property of the NH under the applicable North Dakota Intestacy law. Under the Act, the claimant is the NH’s child and is entitled to child’s benefits on the NH’s record.

2. OPINION

Question Presented

Whether the claimant, J~, is eligible for child’s insurance benefits on the account of the number holder (NH), E~.

Short Answer

Yes, the claimant is eligible for child insurance benefits on the NH’s account because he is the NH’s child under North Dakota law intestacy law.

Background

The NH, E~, was approved for disability benefits as of August 2006. On May XX, 2013, the NH entered into a same-sex marriage with L~ in the State of Iowa. The marriage certificate provides that both parties combined their surnames after marriage. On May XX, 2014, L~ gave birth to J~ in the State of Minnesota; a medical note indicates that the child was conceived by artificial reproductive technology using donated sperm. The birth certificate lists L~ and E~ as the parents of J~. On July XX, 2014, the NH filed an application on her record for child’s insurance benefits for J~ with a month of entitlement of June 2014. The NH has acknowledged that she is not the birth parent of J~.

Discussion

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual is entitled to child’s insurance benefits. Act § 202(d)(1). However, to receive child’s insurance benefits, the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual at the time he filed his application. See id.; 20 C.F.R. § 404.350.

Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Act § 216(e)(1). The Act further provides: “[i]n determining whether an applicant is the child . . . [of an] insured individual . . . apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State . . . .” in which the insured individual was domiciled. Act § 216(h)(2)(A). An applicant is eligible for benefits as the insured individual’s “natural child” if he could inherit property based on this intestacy test. 20 C.F.R. § 404.355(a)(1).1 An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. See 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 (SSR) 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 . . . .”).

The NH was domiciled in North Dakota at the time the application was filed. Accordingly, North Dakota intestacy law determines Claimant’s relationship with NH, and thus, his entitlement to child’s insurance benefits.

North Dakota Law

North Dakota intestacy law provides that, if a parent-child relationship is established under sections 30.01-04-14 through 30.01-04-20, the child is a child of the parent for purposes of intestate succession. See N.D. Cent. Code § 30.1-04-15. Section 30.1-04-19 addresses children “conceived by assisted reproduction,” which contemplates children who are conceived using donated eggs or sperm. This section provides that a parent-child relationship exists between a child of assisted reproduction and the birth mother. See N.D. Cent. Code § 30.1-04-19(3). The statute further states that “[a] birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a

parent-child relationship between the child and that individual.” N.D. Cent. Code § 30.1-04-19(5). In this case, J~’s birth certificate identifies the NH as a parent. Thus, pursuant to North Dakota law, a parent-child relationship has been established, and J~ could inherit the NH’s property as her child. See id. Therefore, J~ is also entitled to child insurance benefits on the NH’s record. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); POMS GN 00306.001(C)(1)-(2).

It is important to note that the language in N.D. Cent. Code § 30.1-04-19(5) is sex-neutral. Further, the comments to the corresponding provision of the Uniform Probate Code, § 2-120, make clear that the birth certificate presumption set forth in N.D. Cent. Code § 30.1-04-19(5) “could apply” to a same-sex couple if state law permits a woman who is not the birth mother to be listed on the child’s birth certificate. 2 Unif. Probate Code § 2-120 cmt. (amended 2008). Here, we note that the birth certificate was issued by the state of Minnesota—not North Dakota. Nonetheless, we identified no statute or case law in North Dakota suggesting that North Dakota would not permit a same-sex partner to be listed on the birth certificate or would not otherwise recognize a same-sex couple as parents. See Damron v. Damron, 670 N.W.2d 871, 876 (N.D. 2003) (finding that a custodial parent’s homosexual household is not grounds for modifying custody in the absence of evidence that the environment endangers or potentially endangers the children’s physical or emotional health). And in the case of a child born to unmarried parents, both North Dakota and Minnesota generally require that a father (or presumably a same-sex partner) consent in writing to being named on a child’s birth certificate. See N.D. Cent. Code

§ 23-02.1-13(5); Minn. R. 4601.0600, Subp. 5. Additionally, the North Dakota adoption statute does not expressly ban same-sex couples from adopting or having custody of children. See N.D. Cent. Code § 14-15-01, et seq. Thus, based on the plain language of the statute as well as the drafter’s comments, we conclude that an individual’s sex is not relevant to the question of parentage under N.D. Cent. Code § 30.1-04-19(5).

3. Conclusion

In this case, the claimant does have inheritance rights to the property of the NH under the applicable North Dakota intestacy law. Accordingly, he is the NH’s child under the Act and is thus entitled to child’s benefits on the NH’s record.

Office of the Regional Chief Counsel

Region VIII, Denver

By: Kati Bostwick

Assistant Regional Counsel

20


Footnotes:

[1]

The term “natural child,” as used in the agency’s regulations means a child who can establish his or her status under any of the criteria in 20 C.F.R. § 404.355(a).

[2]

North Dakota has adopted the Uniform Probate Code (UPC), including the 2008 amendments to the UPC, which governs intestacy cases in the state. See N.D. Cent. Code § 30.1-01-01.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501105037
PR 01105.037 - North Dakota - 11/27/2015
Batch run: 11/27/2015
Rev:11/27/2015