On February XX, 2015, the numberholder C~ (the NH) adopted N~ (claimant). You requested
a legal opinion as to claimant’s eligibility for auxiliary benefits as the child of
the NH between the time of his birth and adoption.
Under the Kansas Parentage Act, the NH was the presumed parent of claimant from the
time of claimant’s birth through the time of his adoption. Since the time of his birth,
claimant could inherit from the NH as the child of the NH under state intestacy law.
Accordingly, claimant was entitled to auxiliary benefits as the child of the NH from
the time of his birth and continuing.
On November XX, 1978, the NH was born in Cedar Rapids, Iowa, as J~, a female.
On May XX, 2002, the NH married E~.
On April XX, 2009, upon a petition by the NH, the District Court of Douglas County,
Kansas, issued an order changing the NH’s name to C~.
In a letter dated July XX, 2010, C2~, M.D., the NH’s primary-care physician, stated
that the NH had undergone gender reassignment from female to male and noted that an
amended birth certificate was being sought.
On September XX, 2010, the State of Iowa issued a birth certificate showing the NH’s
name as C~ and his sex as male.
On June XX, 2011, in Lawrence, Kansas, the NH married E2~ (E2~). On the certificate
of marriage, the NH is listed as the groom, and E2~ is listed as the bride. The certificate
shows a marriage license was issued in Douglas County, Kansas, on April XX, 2011.
On June XX, 2014, claimant was born in Lawrence, Kansas, to E2~. Claimant’s birth
certificate shows E2~ as his mother and the NH as his father, though claimant was
neither the biological or adopted child of the NH. The NH, E2~, and claimant have
resided together in Lawrence, Kansas, as a family since claimant’s birth.
On June XX, 2014, the NH protectively filed for auxiliary child’s benefits for claimant,
and E2~ protectively filed for benefits as the NH’s spouse with a child-in-care.
On February XX, 2015, the NH formally adopted claimant in the District Court of Wyandotte
On May XX, 2015, E2~ withdrew her application for spouse’s benefits after the agency
asked the NH to provide proof of divorce from E~.
Under the Social Security Act (the Act), an individual may be eligible for child survivor’s
insurance benefits if: (1) he is the “child” of the insured, as defined in the Act;
and (2) he was “dependent upon” the insured at the time of application. See section 202(d) of the Act, 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 sections 202(d)(1) and 216(e) of the Act, 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 an applicant 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. See section 216(h)(2)(A) of the Act, 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). In this case, the state of domicile is Kansas,
where the NH has his true, fixed, and permanent home. See 20 C.F.R. § 404.303; POMS GN 00305.001. Therefore, whether claimant may be considered the child of the NH for purposes of
child’s benefits must be determined under Kansas intestacy law. See 20 C.F.R. § 404.355(a).
For purposes of determining intestate succession, the Kansas Probate Code defines
the term “children” to include biological children, including posthumous children;
children adopted as provided by law; and children whose parentage is or has been determined
under the Kansas Parentage Act (KPA), Kan. Stat. Ann. §§ 23-2201 et seq., See Kan. Stat. Ann. § 59-501; see also Reese v. Muret, 150 P.3d 309, 311-12 (Kan. 2007) (in a probate action, determining parentage under
You requested an opinion addressing whether claimant was a child of the NH between
the time of his birth and the adoption by the NH. Because the provisions of the KPA
are construed in a gender-neutral manner, it is not necessary to analyze the gender
of the NH. See Frazier v. Goudschaal, 295 P.3d 542, 558 (Kan. 2013) (finding that the KPA is “gender-neutral, so as to
permit both parents to be of the same sex.”); but see POMS GN 00306.495 (summarizing Kansas intestacy law and describing numerous ways the parent-child relationship
may be established by the “natural mother”). Kansas caselaw also strongly endorses
protecting the presumed-parent-and-child relationship regardless of the biological
connection between the parent and child. See, e.g., In re Marriage of Ross , 783 P.2d 331, 338-39 (Kan. 1989) (finding DNA evidence is not conclusive and that
the presumed father, who had no biological connection to the children, was indeed
the children’s father under the KPA); Reese, 150 P.3d at 315 (noting “paternity is both broader and deeper than genetics.”);
Frazier, 295 P.3d at 553 (“A harmonious reading of all of the KPA provisions indicates that
a female can make a colorable claim to being a presumptive mother of a child without
claiming to be the biological or adoptive mother.”); Kan. Stat. Ann. § 23-2207 (A
mother may establish a parent-child relationship by “giving birth to the child or under this act.”) (emphasis added) (formerly designated as Kan. Stat. Ann. § 38-1113); Kan. Stat.
Ann. § 23-2220 (“Any interested party may bring an action to determine the existence
or nonexistence of a mother and child relationship.”) (formerly designated as Kan.
Stat. Ann. § 38-1126).
Kan. Stat. Ann. § 23-2208(a)(4) provides for a presumption of parentage when the parent
has “notoriously or in writing” recognized the child. See Frazier, 295 P.3d at 556 (noting the KPA permits the creation of presumptive motherhood through
written acknowledgement); see Ross, 783 P.2d at 334 (finding that the presumed father was the children’s father, in
part, because he recognized them notoriously and in writing by consenting to his name
on the birth certificate, supporting the children throughout their lifetime, and declaring
his paternity in legal documents). The written acknowledgement need not be in any
particular form. See Kan. Stat. Ann. § 23-2208(a)(4); Matter of Kuhn’s Estate, 626 P.2d 794, 795 (Kan. 1981) (birth certificate); In the Matter of the Marriage of Phillips, 58 P.3d 680, 681, 685-86 (Kan. 2002) (finding acknowledgements of paternity on a
birth certificate and a divorce petition were entitled to same deference as statutory
forms for acknowledgement of paternity). An acknowledgment of parentage creates a
permanent parent-child relationship that may be ended by court order. See Kan. Stat. Ann. § 23-2208(b); In the Matter of the Marriage of Phillips, 58 P.3d at 681, 685-86. Where there are no conflicting presumptions of parentage,
the presumption may be rebutted only by clear and convincing evidence or by a court
decree establishing parentage of the child by another person. See Kan. Stat. Ann. § 23-2208(b); POMS GN 00306.495.
On June XX, 2014, the NH asserted paternity as claimant’s father on his birth certificate.
See Kuhn’s Estate, 626 P.2d at 795 (finding paternity established where decedent recognized the child
by obtaining and paying for the birth certificate). Claimant’s middle and last name
is the same as the NH’s first and last name. The same month, the NH identified claimant
as his child on the application for child’s benefits. See POMS GN 00306.105(A)(1) (an application for Social Security benefits filed by the wage earner and listing
the child as his child constitutes a written acknowledgment of paternity under section
216(h)(3) of the Act). Additionally, the Adoption Decree states that claimant and
the NH, as well E2~, have resided together as a family since claimant’s birth in June
2014, and the NH has supported, reared, and educated claimant. Because the NH has
recognized claimant as his child since his birth, the NH is a presumed parent of claimant
and claimant would be entitled to inherit from the NH under Kansas intestacy law.
Therefore, claimant was eligible for child’s benefits on the record of the NH and
has been since the date of his birth.See POMS GN 00306.050 (A child with inheritance rights is considered to be legitimate from birth).
Claimant was eligible to receive child’s auxiliary benefits on the NH’s record since
his birth on June XX, 2014.
Rhonda J. Wheeler
Deputy Chief Counsel, Region VII
By: Assistant Regional Counsel