You have asked for advice as to whether Heather D. H~, Donna R. H~, and Dustin D.
H~, are entitled to surviving child's benefits based on the Social Security record
of Earl H~. Based on our review of the law and the facts as you present them, and
for the reasons discussed below, we believe each of these children is entitled to
benefits based on Earl H~'s Social Security record.
According to the information you provided, in February 2003 Delilah D~filed applications
for surviving child's benefits on behalf of her children, Heather D. H~ (date of birth,
February 28, 1991), Donna R. H~ (date of birth, October 25, 1992), and Dustin D. H~
(date of birth, October 25, 1992), alleging that Earl H~, the presumed deceased number
holder, was their biological father. Although Delilah and Earl never married, Delilah
advised at the time she filed the February 2003 applications that she and Earl had
lived together in Iowa from 1985 or 1986 until November 1995, at which time Earl disappeared.
During the nearly ten years that Delilah and Earl lived together, Heather, Donna,
and Dustin were conceived. Delilah advised that, prior to his disappearance, Earl
worked as a truck driver and was a "big drug dealer."
Although Delilah advised that she had not heard from Earl since November 1995, a statement
received from Earl's mother in February 2003 indicated that she last saw Earl in Carroll,
Iowa, in December 1997. Earl's friend, Sandy M~ similarly advised that she had last
seen Earl sometime in 1997. Sandy also reported that Earl was in a position of danger
or peril at the time of his disappearance because of his involvement with drugs. Delilah's
February 2003 applications were denied because the seven-year duration for presumption
of death was not met.
In December 2004, Delilah contacted the Social Security office in Carroll, Iowa, asking
about re-filing her applications for child's benefits. Delilah was told she needed
to establish that Earl was the biological father of Heather, Donna, and Dustin. According
to your memorandum, Delilah submitted the hospital birth certificates for Donna and
Dustin. They listed Earl as the father, but they did not include any informant information.
Delilah also submitted the State of Iowa birth certificates for all three children.
Although the State of Iowa birth certificates do not list Earl or anyone else as the
father, "H~" and not "D~ was the last name listed for all three children.
In March 2006, Delilah re-filed her applications for child benefits on behalf of Heather,
Donna, and Dustin. Delilah has since submitted affidavits from herself, Phyllis J.
V~(Delilah's mother), Donald B. V~ (Delilah's father), Shane H~ (Earl's brother),
Cymba F~(Earl's sister), Donna H~ (Earl's mother), and Earl D~ H~ (Earl's father).
According to the April 7, 2006 affidavits of Phyllis J. V~ and Donald B. V~ (Delilah's
parents), Earl and Delilah lived together from prior to the conception of Heather
until 1995 or 1996. Earl was present at the birth of Heather, Donna, and Dustin, as
was Earl's father. Earl was very possessive of the children and he always acknowledged
that Heather, Donna, and Dustin were his children. Neither Phyllis nor Donald has
heard from Earl since December 1996 or January 1997, and neither believes Earl could
be alive and stay away from his children.
According to the April 10, 2006 affidavit of Shane H~ (Earl's brother), Earl and Delilah
lived together from prior to the conception of Heather until 1996. Shane saw Earl
and Delilah at family gatherings in Oklahoma two or three times yearly. Earl always
acknowledged that Heather, Donna, and Dustin were his children, and Earl loved and
took care of them. Shane has not heard from Earl since around December 1996. Shane
was not in the presence of Delilah when Heather, Donna, and Dustin were conceived,
and he denied that he is their father.
According to the April 12, 2006 affidavit of Cymba F~ (Earl's sister), Earl and Delilah
lived together from prior to the conception of Heather until 1996. Cymba and her husband
visited Earl and Delilah shortly after Donna and Dustin were born. Cymba returned
yearly. Earl took care of Donna and Dustin, bathing them and changing diapers. Cymba
believes that Heather, Donna, and Dustin are Earl's children. She last heard from
Earl in December 1996.
According to the April 14, 2006 affidavit of Donna H~ (Earl's mother), Earl and Delilah
lived together from prior to the conception of Heather until 1996. Earl and Delilah
attended family gatherings at her home in Oklahoma two or three times yearly. Earl
always acknowledged that Heather, Donna, and Dustin were his children, and Earl loved
and took care of them. Donna believes without a doubt that Heather, Donna, and Dustin
are Earl's children. She noted that Dustin looks just like her husband, Earl's father.
Donna attested that her previous statement that she had last seen Earl in December
1997 was error. Based on her review of Christmas pictures, Donna stated that the last
time she heard from Earl was January 1997. She believes Earl is dead.
According to the April 15, 2006 affidavit of Earl D~ H~ (Earl's father), Earl and
Delilah lived together from prior to the conception of Heather until 1996. Earl and
Delilah attended family gatherings at his home in Oklahoma two or three times yearly.
Earl D~ also stayed with Earl and Delilah two or three weekends monthly. Earl always
acknowledged that Heather, Donna, and Dustin were his children, and he loved and cared
for them. He and Earl were present at the birth of Heather, Donna, and Dustin. Earl
D~ last heard from Earl in December 1996.
According to the June 7, 2006 affidavit of Delilah, she and Earl lived together from
around 1985 until 1995 or 1996. Delilah did not have sexual relations with anyone
except Earl during the ten years they lived together, and during that time, Heather,
Donna, and Dustin were conceived. According to Delilah, Earl is the biological father
of Heather, Donna, and Dustin. Both Earl and his father were present at the births
of the children, and Earl loved each of them. Earl, however, left Delilah in late
1995 or early 1996 and moved in with his friends, Jeff and Sandy M~. Earl told Delilah
that he had a new girlfriend named "Peaches." After Earl moved out, he quit providing
financial support to Delilah and their children. Although Earl had been employed by
Bedford Livestock, the owner fired him after learning that he had left Delilah and
the children. Delilah has not seen Earl since late 1995 or early 1996. Delilah believes
Earl is dead because he could not go for such a long time without contacting his children
or his family.
According to a November 27, 1991 "Findings of Fact, Conclusions of Law and Decree"
of the Iowa District Court for Carroll County, Delilah was previously married to Lynn
G~. They divorced in June 1985, at which time Delilah was awarded custody of their
two children. In connection with Lynn's February 25, 1991 petition for modification
of the custody arrangement, the Iowa court noted that Delilah was, at that time, living
in Carroll, Iowa, with Earl and their child, Heather. The Iowa court also noted that
Delilah and Earl met in or around May 1988, and that, in March 1991, Delilah and Earl
had applied for state benefits as unemployed parents of Heather. Finally, the Iowa
court noted that Earl had three felony convictions for burglary, that Earl drank alcohol
excessively, and that Earl had been twice convicted of domestic abuse.
An earnings record shows that Earl's last reported income was in 1995. There is no
written acknowledgment by Earl that Heather, Donna, and Dustin are his children, and
there is no court order of paternity. Finally, Child Support Recovery was contacted
and they have nothing to show paternity, and no court order for child support was
Initially, we must determine whether the evidence is sufficient to establish that
Earl is deceased. If so, we must next establish the exact date of his presumed death.
Determining the fact and date of death is governed by the Social Security regulations
found at 20 C.F.R. §§ 404.720, 404.721 (2005). "Preferred" evidence of death includes
a certified copy of the public record of death, a statement from a funeral director,
an extract from an official report made by a federal agency, or a report from the
State Department for foreign deaths. See 20 C.F.R. § 404.720(b). Because the "preferred" means of proving death are not available
in this case, 20 C.F.R. § 404.721 applies. That regulation states death may be presumed
if there are:
[s]igned statements by those in a position to know and other records which show that
the person has been absent from his or her residence and has not been heard from for
at least 7 years. If the presumption of death is not rebutted pursuant to § 404.722,
we will use as the person's date of death either the date he or she left home, the
date ending the 7 year period, or some other date depending upon what the evidence
shows is the most likely date of death.
See 20 C.F.R. § 404.721(b). Accordingly, we must determine, based on the evidence presented,
whether Earl has been missing for at least seven years, without any rebutting evidence
indicating that he might be alive. See 20 C.F.R. § 404.722 (2005) (presumed death after absence of seven years can be rebutted
by "evidence that establishes that the person is still alive or explains the individual's
absence in a manner inconsistent with continued life rather than death").
The facts as you present them clearly show that Earl has been missing for the requisite
seven years. Earl's father, brother, and sister stated that they last heard from Earl
in December 1996. Similarly, Delilah's parents both attested that they have not heard
from Earl since December 1996 or January 1997. Although Earl's mother stated in February
2003 that she last saw Earl in December 1997, she later advised by affidavit that
this statement was erroneous. Based on her review of Christmas pictures, Earl's mother
indicated she last heard from Earl in January 1997. Likewise, Delilah stated in her
June 2006 affidavit that she last saw Earl in late 1995 or early 1996. Finally, an
earnings record shows that Earl's last reported income was in 1995. The only evidence
possibly suggesting contact from Earl after January 1997 is the statement from Earl's
friend, Sandy M~, who advised that she last saw Earl sometime in 1997. Sandy, however,
does not state when during 1997 she last saw Earl. Based on the foregoing, credible
evidence shows Earl was last heard from in January 1997, and thus SSA may presume
Accordingly, SSA must next determine the exact date of his death. See Cohn v. Secretary of Health Ed. and Welfare, 477 F. Supp. 54, 56 (D. Neb. 1979) ("The determination of date of death is an independent
finding of fact to be made if the person has been presumed dead."). As noted above,
there are three different dates that could be used as Earl's presumed date of death:
(1) the date of his disappearance; (2) the date ending the seven years after his last
appearance; or (3) some other date if there is evidence of some other date. See 20 C.F.R. § 404.721(b).
Under Iowa common law, continued life is presumed until seven years after an individual's
disappearance. See Willms v. Schlicht, 266 N.W. 556, 558 (Iowa 1936); McCoid v. Norton, 222 N.W. 390, 391 (Iowa 1928). Nevertheless, an earlier date of death can be established
where the evidence shows the individual was in specific peril or exposed to "danger
liable to result in death at the time of [his] disappearance." See Willms, 266 N.W. at 558; see also Acosta v. United States, 320 F.2d 382, 384-85 (Ct. Cl. 1963) (presumption of continued life throughout seven-year
period of continued absence not overcome absent showing of distinct peril or danger).
SSA's current policy for determining the time of death is similar to the approach
used in Iowa. Under Agency policy, the presumed date of death may be moved to the
date of disappearance where (1) the missing person encountered some specific peril
at or about the time of his disappearance; (2) the missing person was suicidal; (3)
the missing person was in such a poor state of health and was so destitute that survival
was improbable for any length of time after the disappearance; or (4) the missing
person was attentive to his domestic duties, had a home to which he was attached,
and suddenly, finally, and without explanation, disappeared. See Program Operations Manual System (POMS) GN 00304.050.6 (Presumption of Death).
On the facts here, we believe it would be reasonable for SSA to use January 31, 1997,
as Earl's presumed date of death. The credible evidence indicates Earl has not been
heard from since January 1997. The evidence similarly indicates that Earl was dealing
drugs at the time of his disappearance. Earl's friend, Sandy M~, indicated in her
February 2003 statement that Earl was in a position of danger or peril at the time
of his disappearance because of his involvement with drugs. Similarly, Delilah advised
that, prior to his disappearance, Earl was a "big drug dealer." Finally, although
Earl left Delilah in late 1995 or early 1996, based on the affidavits you have provided,
Earl was attentive to his domestic duties prior to his disappearance.
Finally, having determined the presumed date of Earl's death, we must determine whether
Heather, Donna, and Dustin are entitled to benefits as the surviving children of Earl.
Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement
to child's insurance benefits. This section provides that every child (as defined
in section 216(e)) of an individual who dies fully insured under the Act is entitled
to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time
elementary or secondary school student and under age 19), or is under a disability
that began before age 22, and was dependent on the deceased at the time of death.
Id. A child who is "legitimate" or legally adopted by the insured individual is deemed
dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).
An "illegitimate" child can be deemed dependent on a deceased insured individual in
several ways. First, section 216(h)(3)(C)(ii) of the Act provides that a child can be deemed dependent
on the insured by showing that the insured was his or her parent and was living with
or contributing to his or her support at the time of the insured's death. Second, section 216(h)(2)(B) of the Act provides that a child can be deemed dependent on
the insured if he or she can show that the insured was his or her parent and that
his or her parents went through a purported marriage ceremony, but their marriage
was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that a child can be deemed dependent
on the insured if he or she can show that the insured had, prior to his death: (a)
acknowledged in writing the child as his child; (b) been decreed by a court to be
the child's parent; or (c) been ordered by a court to contribute to the support of
the child on the basis of parenthood.
The evidence submitted by Delilah does not satisfy these three tests. As discussed
above, Earl was not living with or contributing to the support of Heather, Donna,
and Dustin at the time of his presumed death in January 1997. In addition, Delilah
and Earl were never married. Finally, Earl never acknowledged in writing that Heather,
Donna, and Dustin were his children, nor was he decreed by a court to be the parent
of these children or ordered to pay child support.
Nevertheless, an "illegitimate" child who does not meet the above requirements for
showing dependency is still entitled to benefits under section 216(h)(2)(A) if he
or she could inherit personal property under "such law as would be applied in determining
the devolution of intestate personal property by the courts of the State in which
such insured individual . . . was domiciled at the time of his death . . . ." Id. An illegitimate child who meets the standard that Congress set forth in section 216(h)(2)(A)
of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). In this case, because Earl was domiciled in Iowa
at the time of his presumed death, we must apply Iowa intestacy laws.
Prior to 1986, Iowa's intestacy statute provided as follows:
Unless he has been adopted, an illegitimate child shall inherit from his natural father
when the paternity is proven during the father's lifetime, or when the child has been
recognized by the father as his child; but such recognition must have been general
and notorious, or else in writing. . .
See Iowa Code Ann. § 633.222 (West 1992). This version of the statute suggests that an
illegitimate child could inherit if paternity was proven during the father's lifetime,
or if the child had been "recognized" by the father as the father's child. Court cases
interpreting this version of the statute, however, focused on the recognition aspect
of the statute. See In re Wulf's Estate v. Wulf, 48.W.2d 890 (Iowa 1951); McNeill v. McNeill, 148 N.W. 643 (Iowa 1914); Duffy v. Duffy, 87.W. 500 (Iowa 1901). In 1986, the statute was amended to the following:
Unless the child has been adopted, an illegitimate child inherits from the child's natural father if the evidence proving paternity is available during the father's lifetime, or if the child has been recognized by the father as
his child; but the recognition must have been general and notorious, or in writing.
See Iowa Code Ann. § 633.222 (West 1992) (emphasis added to show changes). This amendment
to the statute suggests that paternity no longer needed to be proven during the lifetime
of the father; instead, it was enough that the evidence was "available" during the
father's lifetime. Finally, in 1994, the statute was amended to substitute "biological"
for "illegitimate" and "biological" for "natural." See Iowa Code Ann. § 633.222 (West 2000). The 1994 amendment represents the current version
of the statute, which provides as follows:
Unless the child has been adopted, a biological child inherits from the child's biological father if the evidence proving paternity is available during the father's lifetime,
or if the child has been recognized by the father as his child; but the recognition
must have been general and notorious, or in writing. . .
See Iowa Code Ann. § 633.222 (West 2000) (emphasis added to show changes).
The plain language of the Iowa statute suggests heirship may be established upon a
showing of paternity or recognition. Iowa courts, however, have made clear that both
paternity and recognition are required for heirship. See In re Estate of Evjen v. Novotny, 448 N.W.2d 23 (Iowa 1989) ("Proving paternity, however, is not enough to establish
heirship under section 633.222. It must also be shown that the father 'recognized'
the child as his own . . . ."); Abkes v. Apfel, 30 F. Supp.2d 1149, 1154 (N.D. Iowa 1998) ("Not only must the child prove paternity,
it must also be shown that the father 'recognized' the child as his own."). Nevertheless,
Iowa courts have agreed that "recognition" need "not be so universal or so general
and public as to have been known by all"; instead, "recognition" means only that "the
father admitted or acknowledged the paternity." See Evjen, 448 N.W.2d at 25; Abkes, 30 F. Supp.2d at 1154. Under Iowa law, however, heirship (i.e., paternity and recognition)
must be proven by clear and convincing evidence. See Evjen, 448 N.W.2d at 24; Abkes, 30 F. Supp.2d at 1154.
In Evjen, the Iowa Supreme Court considered the inheritance rights of an illegitimate child
whose putative father had died one week after learning of the pregnancy of the mother.
After noting that both paternity and recognition were required for heirship, the Court
concluded that the evidence of paternity in the case was "virtually conclusive." See Evjen, 448 N.W.2d at 24. In so concluding, the Court noted that, according to undisputed
testimony, the putative father and mother lived together during the time that the
child was born, the mother was not sexually intimate with anyone except the putative
father during their period of cohabitation, and the putative father and mother regularly
engaged in sexual intercourse without birth control. See id. The Court likewise found the evidence sufficient to establish the requisite "recognition."
The Court noted that, although the putative father knew of the probable pregnancy
for only one week before his death, he had told at least five people that the baby
was his. See id. at 25. Based on the testimony of these five people, the Court concluded the putative
father had recognized the illegitimate child "openly and notoriously" within the meaning
of section 633.222. See id. at 26.
Finally, in Abkes, an Iowa federal court considered the denial of surviving child's benefits by an
administrative law judge. Initially, the Court noted that an Iowa state court, in
connection with a child-support action, previously held that the mother had "narrowly
carried" her burden of establishing paternity based on a preponderance of the evidence
standard. See Abkes, 30 F. Supp.2d at 1153, 1155. The Abkes court noted, however, that it was not bound by the state court determination of paternity
because proof of heirship required clear and convincing evidence. Turning to the evidence,
the Court noted it was undisputed that the mother and deceased number holder had engaged
in sexual intercourse during August 1987, and that the illegitimate child was born
in May 1988. See id. at 1152. Nevertheless, the Court noted the deceased number holder's ex-wife, as well
as other members of his family, reported that the mother was having sexual relations
with other men directly before and after the time she was intimate with the deceased
number holder. See id. Further, according to the deceased number holder's family,
he had no involvement with the mother's prenatal regimen other than possibly noticing
that she was pregnant. See id. Shortly after the illegitimate child was born, the mother informed the deceased number
holder that he was the father. See id. The mother claimed that the deceased number holder was enthusiastic about becoming
a father and assumed an active role in the child's rearing. See id. at 1153. The deceased number holder's ex-wife and family, however, claimed that he
continuously denied paternity and showed almost no interest in the child. See id. Based on these facts, the Abkes court affirmed the ALJ's determination that the mother had failed to prove heirship
by clear and convincing evidence.
We believe Delilah has submitted sufficient evidence to prove both paternity and recognition.
The facts in this case are equally if not more compelling than those in Evjen. As noted above, the affidavits of record in this case show that Earl and Delilah
lived together from 1985 or 1986 until November 1995, during which time Heather, Donna,
and Dustin were conceived; and that Delilah was not sexually intimate with anyone
except Earl during this ten-year period. See, e.g., In re Wulf's Estate, 48 N.W.2d at 892 (Iowa Supreme Court upheld the inheritance rights of an illegitimate
child based, in part, on the "notable absence of any claim, or of any evidence tending
to prove, that any other man [other than the deceased whose estate was in probate]
was, or could reasonably be argued to have been, responsible for [the mother's] pregnancy").
Further, although the birth certificates do not list a father, the children were given
the last name "H~," not "D~." The affidavits also indicate that Earl and his father
were present for the birth of the children, that Earl was very possessive of the children
and always acknowledged they were his, and that Earl loved the children and supported
them financially before leaving Delilah in November 1995. Finally, it is worth noting
that the evidence submitted in this case was obtained not only from Delilah and her
parents, but also from Earl's parents, Earl's sister, and Earl's brother. Further,
everyone who submitted an affidavit expressed their belief that Earl is the biological
father of Heather, Donna, and Dustin. Cf. Abkes, 30 F. Supp.2d at 1155 (affirming denial of benefits where deceased number holder's
family claimed that deceased number holder continuously denied paternity and showed
almost no interest in the child).
Accordingly, based on these facts, we believe that, under Iowa law, Heather, Donna,
and Dustin could inherit from Earl and would, therefore, be entitled to surviving
Finally, you indicated in the last paragraph of your memorandum that POMS GN 00306.490 (Iowa Intestacy Laws) is inconsistent with Iowa law to the extent Iowa law requires
proof of both paternity and recognition. That section of the POMS states, in relevant
part, as follows:
A. Child acquires status of child if:
(I) father recognizes child and recognition is either general and notorious or in
(I) paternity is proven during father's lifetime (a post-mortem judicial order decreeing
the paternity of a child meets the requirements of this section provided that the
paternity action itself was commenced before the putative father's death); or
For claims filed on or after 11/27/98, or pending on that date, paternity may be established
by an SSA adjudication of paternity before the father's death by a preponderance of
the evidence. After his death, paternity and recognition (general and notorious or
in writing) must be established by clear and convincing evidence.
See POMS GN 00306.490 (Iowa Intestacy Laws).
Although this POMS section may need clarification, we believe that paragraph A.4 accurately
reflects the current status of Iowa law with regard to establishing heirship after
the death of a number holder. That is, as discussed above, "paternity and recognition
(general and notorious or in writing) must be established by clear and convincing
evidence." Please let our office know if you would like our assistance in revising
the POMS to avoid any unnecessary confusion.
Frank V. S~ III
Chief Counsel, Region VII
Robert M. S~
Assistant Regional Counsel