QUESTION
You asked whether the Claimant is the NH’s child for the purposes of his claim for
child’s insurance benefits on the NH’s record under Title II of the Social Security
Act (Act).
ANSWER
We believe the agency may reasonably conclude that there is satisfactory evidence
of a biological relationship between the Claimant and the NH and that the NH was living
with or contributing to the Claimant’s support at the time of his death. Thus, we
believe there is legal support for the agency to find the Claimant to be the NH’s
child under section 216(h)(3)(C)(ii) of the Act. Alternatively, we believe there is
legal support for the agency to find the Claimant to be the NH’s stepchild under the
Act. Therefore, there is legal support for the agency to find that the Claimant is
the NH’s child under the Act for purposes of determining the Claimant’s entitlement
to child’s insurance benefits on the NH’s record.
BACKGROUND
You advised that the Claimant was born on May XX, 20XX, in Penticton, British Columbia,
Canada to the mother. The Claimant’s birth certificate identifies the Mother as his
mother and does not list a father.
The Mother married the NH on May X, 20XX, in Nevada and remained married to the NH
until his death. You provided a copy of their Nevada marriage certificate, which showed
that at the time of their marriage, the NH was living in Oregon and the Mother was
living in Canada. You advised that the NH died on July XX, 20XX, while domiciled in
British Columbia, Canada. His death certificate reflects that he was born in Oregon
and died July XX, 20XX, in British Columbia, Canada.
On October X, 20XX, the Mother applied for child’s insurance benefits on the Claimant’s
behalf on the NH’s record. In the Form SSA-795, the Mother wrote:
I am the mother of [the Claimant] and [the NH] is the father. When we met during a
visit to Canada, we started a long-distance relationship, and I became pregnant. When
[the Claimant] was born, it was not 100% clear that we would get married so at the
time of his birth, I didn’t add [the NH’s] name to the [birth] certificate and [the
Claimant] has my last name XXX. We married a year later May 20XX and [the Claimant’s]
brother was born in February 20XX. [The NH] moved to Canada permanently in September
20XX. We had intended to change the birth certificate but didn’t get around to it.
He died suddenly without warning July XX, 20XX.
In support of their relationship, the mother submitted a one-page “DNA Test Report
Paternity – Legal,” which was completed in Canada from XX DNA on August XX, 20XX.
The report reflects that testing was performed on specimen from the NH, the Claimant,
and the Mother. The DNA test report concludes that the probability of paternity is
99.9% between the Claimant and the NH. No other documents related to this DNA testing
were provided, such as chain of custody documentation.
In a letter to the agency dated March XX, 20XX, the Mother provided further information
on the family’s living situation and the NH’s relationship with the Claimant. She
again explained that she and the NH were married in May 20XX. She stated that the
Claimant was born in May 20XX before they were married. She stated that they had another
son who was born in February 20XX after they were married. She wrote that after they
were married, they lived together in the same house in Canada until 20XX when they
separated to work on their marriage. She stated that they rented houses close to each
other so that the Claimant and his brother could move between them easily. They shared
time with the boys and continued to spend time together as a family. She said that
there was no separation agreement, and no one had filed for divorce because they were
still working on their marriage. She stated that they “shared the boys 50/50” and
so the NH did not pay her anything. She stated that they “split the cost of any larger
purchase associated with them – i.e., school trips, clothing, etc.” She wrote that
at the time of the NH’s death, they “were still legally married, no separation agreement,
no divorce papers, no divorce.”
The Mother also provided a letter from a family friend dated March XX, 20XX. The friend
reported knowing the mother since 20XX and stated that her daughter babysat the Claimant
and his two brothers. She described the mother’s marriage with the NH and their life
raising three boys, including the Claimant. She wrote that the Claimant was the NH’s
son.
Discussion
A. Federal Law: Entitlement to Child’s Insurance Benefits as a Child
Under Title II of the Act, a claimant may be entitled to child’s insurance benefits
on the record of an insured individual who has died or an individual who is entitled
to old-age or disability benefits if, among other things, he or she is the individual’s
child. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1), 404.354.[1] The Act and regulations define “child” as an insured individual’s natural child,
legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted
child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Based on the evidence provided,
our inquiry focuses on whether the Claimant is the NH’s natural child or alternatively,
his stepchild.[2]
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1.
Natural Child under Section 216(h)(2)(A) of the Act and State Intestate Succession
Law
In assessing a claimant’s status as a natural child, under section 216(h)(2)(A) of
the Act, the agency must determine whether the claimant could inherit the insured
individual’s personal property as his or her child under the intestate succession
laws of the State where the insured individual was domiciled at the time of the insured’s
death. See 42 U.S.C. §§ 416(e)(1), 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Where the insured
individual is domiciled outside of the United States at the time of death, such as
here where the NH died domiciled in Canada, the agency applies the law of the District
of Columbia. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1); POMS GN 00306.014G, GN 00306.001R. Under District of Columbia law, the law of the decedent’s domicile determines intestate
inheritance rights. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.C. Cir.
2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)); see also POMS
PR 01105.010 District of Columbia, A. PR 13-047 (Feb. 25, 2013) (advising that the claimant could
be the number holder’s child under section 216(h)(2)(A) of the Act because the claimant
could inherit from the number holder as his child under District of Columbia law,
which looks to Mexican law given that the number holder died domiciled in Mexico).
In order to make this determination, given the NH’s domicile in Canada at the time
of his death, we would need to obtain an opinion from the Law Library of Congress
on the relevant provisions of Canada’s intestacy laws, and we believe the agency would
likely need to further develop the evidence. In order to process this claim more expeditiously
and because we are able to find the Claimant to be the NH’s child under section 216(h)(3)
and alternatively as his stepchild, we believe it is not necessary to also address
the Claimant’s alternative status as the NH’s natural child under section 216(h)(2)(A).
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2.
Natural Child under Section 216(h)(2)(B) and (h)(3) of the Act
The agency may deem a claimant to be an insured individual’s natural child under section
216(h)(2)(B) and (h)(3) of the Act if the claimant is the insured individual’s biological
child and certain criteria are met. See 42 U.S.C. § 416(h)(2)(B), (h)(3); 20 C.F.R.
§ 404.355(a)(2)-(4); POMS GN 00306.001O.2, GN 00306.002B. We next consider each provision and the evidence provided.
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a.
Section
216(h)(2)(B) does not apply as there was no marriage ceremony that would have been
valid but for a
legal
impediment
Under section 216(h)(2)(B) of the Act, a claimant will be deemed to be an insured
individual’s child if the claimant is the insured individual’s biological child, and
the claimant’s parents went through a marriage ceremony that would have been valid
but for a legal impediment. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2); POMS GN 00306.090. This is not relevant as there is no indication that the NH and the Mother went through
a marriage ceremony that would have been valid but for a legal impediment. Instead,
they were validly married in Nevada in 2007.
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b.
Section 216(h)(3)(C)(i) does not apply as there is no evidence of a written
acknowledgment or court order entered before the NH’s death
Under section 216(h)(3)(C)(i) of the Act, the biological child of a deceased insured
individual may be deemed to be the insured individual’s child if, before the insured
individual’s death: (1) the insured individual acknowledged in writing that the child
was his child; (2) a court decreed the insured individual to be the child’s father;
or (3) a court ordered the insured individual to contribute to the child’s support.
See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100. Because there is no evidence of a written acknowledgment or court order entered
before the NH’s death, this provision does not apply to establish status as the NH’s
natural child.
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c.
Section 216(h)(3)(C)(ii) applies as there is other satisfactory evidence of a biological
relationship and living with or contributing to the Claimant’s support at the time
of the NH’s death
Under section 216(h)(3)(C)(ii) of the Act, a biological child of a deceased insured
individual may be deemed to be the insured individual’s child if the agency finds
“by other satisfactory evidence” that the insured individual was the child’s biological
father, and the insured individual was living with or contributing to the child’s
support at the time of his death (or if the child was in the womb when the insured
individual died, the insured individual must have been either living with or contributing
to the support of the mother at the time of the number holder’s death). See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100C.3, GN 00306.125. We believe this provision applies to establish the Claimant as the NH’s child.
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i.
Satisfactory Evidence of aBiological Relationship
First, there must be satisfactory evidence that the claimant is the insured individual’s
biological child. See 42 U.S.C. § 416(h)(3); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100A, GN 00306.125B.1. Under the POMS definition for “biological relationship,” a woman is “biologically
related” to a child if she contributes genetic material, such as an egg or DNA, to
the child. POMS GN 00306.001.C. A man is “biologically related” to a child if he contributes genetic material,
such as sperm or DNA, to the child. Id. The evidence regarding a biological relationship does not have to be in any specific
form. POMS GN 00306.125A. Where the birth certificate and Numident record do not establish the biological relationship,
the POMS provides examples of what might qualify as additional evidence to support
the biological relationship, as including, but not limited to:
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•
hospital, church, or school records;
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•
a statement from the attending physician, relative, or person who knows the child’s
relationship to NH, e.g. NH’s spouse, including the basis for that knowledge;
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•
evidence that NH and the child’s other parent were living together when the child
was conceived; or
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•
blood or genetic test results.
POMS GN 00306.125B.1.
Here, the Claimant’s birth certificate does not identify the NH as his father. In
support of their biological relationship, the Mother submitted a one-page “DNA Test
Report Paternity – Legal,” which was completed in Canada from Orchid Pro DNA on August
XX, 2019. The report reflects that testing was performed on specimen from the NH,
the Claimant, and the Mother. The DNA test report concludes that the probability of
paternity is 99.9% between the Claimant and the NH. The DNA test report is signed
by D~, Ph.D., Technical Leader & Laboratory Manager. This DNA test report supports
a biological relationship between the NH and the Claimant. There is no contrary evidence
disputing their biological relationship. Instead, the Mother and a longtime friend
provided statements that corroborate the family’s history, living situation, and the
NH’s biological relationship with the Claimant.[3] Thus, we believe there is satisfactory evidence of a biological relationship between
the NH and the Claimant for purposes of section 216(h)(3)(C)(ii) of the Act. See POMS GN 00306.125B.1.
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ii.
Satisfactory Evidence that the NH was Living with or Contributing to the
Claimant’s Support at the time of the NH’s Death
Next, there must be satisfactory evidence that the insured individual was either living
with the child or contributing to the child’s support at the time of the individual’s
death. See
42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §§ 404.355(a)(4), 404.366; GN 00306.125B.2. The evidence does not have to be in any specific form. POMS GN 00306.125A.
In a letter to the agency dated March XX, 2020, the Mother provided further information
on the NH’s relationship with the Claimant and their situation at the time of the
NH’s unexpected death in 2019 indicating that the Claimant was living with the NH
half the time and that they shared and split costs related to the Claimant and his
brother. She explained that she and the NH were married in May 2007. She stated that
the Claimant was born in May 2006 before they were married. She stated that they had
another son who was born in February 2008 after they were married. She wrote that
after they were married, they lived together in the same house until 2018 when they
separated to work on their marriage. She stated that they rented houses close to each
other so that the Claimant and his brother could move between them easily. They shared
time with the boys and continued to spend time together as a family. She said that
there was no separation agreement and no one had filed for divorce because they were
still working on their marriage. She stated that they “shared the boys 50/50” and
so the NH did not pay her anything. She stated that they “split the cost of any larger
purchase associated with them – i.e., school trips, clothing, etc.” She wrote that
at the time of the NH’s death, they “were still legally married, no separation agreement,
no divorce papers, no divorce.”
The Mother’s statement indicates that the Claimant was living with the NH the same
amount of time as he was living with her during this separation. This would seem to
be sufficient to satisfy the “living with” requirement given that the child did not
live with either parent for a majority of the time. See 20 C.F.R. § 404.366(c) (“You are living with the insured if you ordinarily live in
the same home with the insured and he or she is exercising, or has the right to exercise,
parental control and authority over your activities.”); POMS RS 01301.002 (defining “living with” to mean that the child and the parent ordinarily share a
common roof under conditions indicating more than mere coincidence of residence, and
the parent has the right to exercise parental responsibility and authority; stating
that a child “lives with” the parent with whom the child lives the majority of the
time).
Alternatively, the Mother’s statements also indicate that the NH was making “contributions
for support” to the Claimant at the time of his death that were regular and substantial.
She stated that they rented houses close to each other so that the Claimant and his
brother could move between them easily. They shared time with the boys and continued
to spend time together as a family. She said that there was no separation agreement
and no one had filed for divorce because they were still working on their marriage.
She stated that they “shared the boys 50/50” and so the NH did not pay her anything.
She stated that they “split the cost of any larger purchase associated with them –
i.e., school trips, clothing, etc.” This would seem to be sufficient to satisfy the
requirement for regular and substantial contributions for support. See 20 C.F.R. § 404.366(a) (explaining that the insured makes a contribution for your
support if the following conditions are met: (1) the insured gives some of his or
her own cash or goods to help support you, which includes food, shelter, routine medical
care, and other ordinary and customary items needed for your maintenance; and (2)
the contributions are made regularly and are large enough to meet an important part
of your ordinary living costs, which are the costs for your food, shelter, routine
medical care, and similar necessities); POMS RS 01301.005 (defining “contributions for support” as regular and substantial contributions in
cash or in kind support; stating that “substantial support” is an amount we consider
large enough as a material factor in the reasonable cost of the child’s support; and
defining “regular support” as a consistent pattern of contributions).
In summary, the evidence as a whole is consistent and supports a parent-child relationship
between the NH and the Claimant. We believe there is satisfactory evidence that establishes
the NH’s biological parentage as to the Claimant. Further, we believe there is satisfactory
evidence that establishes that the Claimant was living with the NH at the time of
his death. We also believe there is satisfactory evidence that establishes that the
NH was making contributions for the Claimant’s support at the time of his death. Therefore,
we believe the agency may reasonably determine that the Claimant is the NH’s child
under section 216(h)(3)(C)(ii) of the Act.
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3.
Stepchild under the Act
As noted, under the Act, a child may be eligible for surviving child’s insurance benefits
if, among other things, he or she is the child of an insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. § 404.350(a)(1). The Act and regulations
define child to include the individual’s stepchild. See 42 U.S.C. §416(e)(2); 20 C.F.R. § 404.357. To qualify as the insured individual’s
stepchild, the agency must determine whether after the claimant’s birth, his natural
parent validly married the insured individual and that he was the stepchild for at
least nine months prior to the day the insured individual died. See 42 U.S.C. § 416(e)(2); 20 C.F.R. § 404.357.
The Claimant was born on May XX, 2006, in Canada to the Mother. The Claimant’s birth
certificate identifies the Mother as his mother and does not list a father. As evidenced
by a Nevada marriage certificate, the Mother married the NH on May XX, 2007, in Nevada
and remained married to the NH until his death on July XX, 2019, in Canada. Based
on the Mother’s marriage to the NH after the Claimant’s birth, we believe the Claimant
would qualify as the NH’s stepchild.
Consistent with the scope of your legal opinion request and the evidence provided,
we have only addressed the requirement for a parent-child relationship and have not
addressed the other requirements for child’s insurance benefits, including dependency
as a stepchild. See
20 C.F.R. §§ 404.357, 404.363; POMS GN 00210.505.
CONCLUSION
We believe the agency may reasonably conclude that there is satisfactory evidence
of a biological relationship between the Claimant and the NH, and that the NH was
living with or contributing to the Claimant’s support at the time of his death. Thus,
we believe there is legal support for the agency to find the Claimant to be the NH’s
child under section 216(h)(3)(C)(ii) of the Act. Alternatively, we believe there is
legal support for the agency to find the Claimant to be the NH’s stepchild under the
Act. Therefore, there is legal support for the agency to find that the Claimant is
the NH’s child under the Act for purposes of determining the Claimant’s entitlement
to child’s insurance benefits on the NH’s record.