A. Federal Law: Entitlement to Child's Insurance Benefits under the Act as a
"Child"
A claimant may qualify for CIB on the earnings record of an individual who dies fully
or currently insured if the claimant is the deceased individual’s “child ” and was
dependent on the insured individual at the time of the insured’s death.[4] See Act § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350, 404.355. The Act
and regulations define “child” as an insured number holder’s natural child, legally
adopted child, stepchild, grandchild, step grandchild, or equitably adopted child.
See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Our inquiry
in this opinion focuses on whether the Child is the NH’s natural child, as there is
no evidence that the other terms would apply here.
In assessing a claimant’s status as a natural child, the agency must determine whether
the claimant could inherit the insured number holder’s personal property as her child
under the intestate succession laws of the state where the insured number holder was
domiciled at the time of her death. See Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A);
20 C.F.R. § 404.355(a)(1), (b). If a claimant qualifies as a child of the insured
individual under the foregoing analysis, the claimant is deemed dependent on the insured
individual. 20 C.F.R. § 404.361(a). Because the NH was domiciled in Louisiana when
she died, we apply Louisiana intestate succession laws to determine whether the Child
could inherit from the NH as her child.
B. State Law: Inheritance under Louisiana Intestate Succession Laws as a
Child Born of a Valid Same-Sex Marriage
Under Louisiana intestate succession law, a deceased individual’s property passes
to his or her descendants by blood[5] or by adoption. See La. Civ. Code Ann. arts. 880 (intestate succession), 882 (representation
in direct line of descendants), 888 (succession rights of descendants), 1096 (definition
of intestate succession). Descendants includes children. See La. Civ. Code Ann. art.
882 (“Representation takes place ad infinitum in the first line of descendants. It
is permitted in all cases, whether the children of the deceased concur with the descendants
of the predeceased child, or whether all children having died before him, the descendants
of the children be in equal or unequal degrees of relationship to the deceased.”);
In the Matter of Succession of Dangerfield, 207 So. 3d 427, 429 (La. Ct. App. 2016)
(for intestate succession, the first class of intestate heirs is the descendant class,
and children are included in this descendant class).
The Louisiana Civil Code defines the term “children” for purposes of intestate succession
to include the following three groups:
(1) those persons born of the marriage,
(2) persons who are adopted, and
(3) persons whose filiation to the parent has been established in the manner provided
by law.
La. Civ. Code Ann. art. 3506(8); see also In the Matter of Succession of Dangerfield,
207 So. 3d at 429 (in intestate succession, included among descendants are children
born of the marriage, children that have been adopted, and children born out of wedlock
whose filiation has been established through the presumption of paternity due to the
marriage to the mother, presumption of paternity due to a formal acknowledgment of
the father, or the institution of a legal proceeding to prove filiation); In re Succession
of Loustalot, 183 So. 3d 556, 558 (La. Ct. App. 2015) (“In intestate successions,
the first class of intestate heirs is the descendant class. Included among descendants
are legitimates [children born during a marriage], adopted children, and children
born out of wedlock those parentage is established.”); Dennis v. Stewart, 887 So.
2d 539, 542 (La. Ct. App. 2004) (citing to the definition of children in Louisiana
Civil Code article 3506(8) for purposes of inheritance of descendants under intestate
succession).
As to the first group – those persons born of the marriage - this article further
defines “[a] child born of marriage” as “a child conceived or born during the marriage
of his parents or adopted by them.” La. Civ. Code Ann. art. 3506(8). As to the third
group – persons whose filiation to the parent has been established - “[f]iliation
is the legal relationship between a child and his parent,” and it is established by
proof of maternity, proof of paternity, or by adoption. La. Civ. Code Ann. arts. 178,
179. Among the methods of establishing filiation by proof of paternity is the presumption
of paternity of a husband, found in article 185, which states that, “[t]he husband
of the mother is presumed to be the father of the child born during the marriage or
within three hundred days from the date of the termination of the marriage.” La. Civ.
Code Ann. art. 185.
Thus, as relevant here, a child born during her parents’ marriage fits within two
of the groups for establishing the right to inherit under intestate succession law
as a deceased individual’s child: (1) as a child born of the marriage, and (2) as
a child whose filiation with the father has been established by a presumption of paternity
based on his marriage with the child’s mother per article 185. See La. Civ. Code Ann.
art. 3506(8).
Here, the evidence indicates the Child was conceived on November XX, 2016, during
the NH’s and Applicant’s marriage, which began on April XX, 2015. As such, the Child
would appear to be a child born of their marriage. See La. Civ. Code Ann. art. 3506(8)
(“[a] child born of marriage” is “a child conceived or born during the marriage of
his parents . . .”). Additionally, the Child was born on August XX, 2017, which was
218 days (7 months, 6 days) after the NH’s death on January XX, 2017 (which is also
the marriage termination date). See La. Civ. Code Ann. art. 101 (marriage terminates
upon the death of either spouse). As such, the Child would appear to be a child whose
filiation to the NH is established under a presumption of parentage for a child born
within 300 days from the termination of her parents’ marriage, per article 185. See
La. Civ. Code Ann. arts. 185, 3506(8). Therefore, based on her parents’ marriage,
the Child fits within the definition of a child for purposes of inheriting from the
NH as her descendant under Louisiana’s intestate succession laws.[6] See La. Civ. Code Ann. arts. 880, 3506(8).
Given the facts of this particular matter, we further consider: (1) the validity of
the NH’s same-sex marriage to the Applicant, and (2) whether the lack of a biological
link to the Child and the same-sex status of the parents hold any legal significance
in determining the Child’s right to inherit from the NH under Louisiana intestate
succession law.
1. The Validity of the Parents’ Same-Sex Marriage
Because the Child’s right to inherit turns on her parents’ marital relationship, as
explained above, we consider the validity of the NH’s and the Applicant’s same-sex
marriage. With respect to the agency’s application of State marriage laws, we note
that in Obergefell v. Hodges, 135 S. Ct. 2584, 2604-2605 (2015), the Supreme Court
held State laws invalid to the extent that they exclude same-sex couples from marriage
on the same terms and conditions as opposite-sex couples. The Court further recognized
there was no lawful basis to uphold state laws banning recognition of same-sex marriages
performed under the laws of other states. Id. at 2607. Pursuant to the U.S. Supreme
Court’s decision in Obergefell and the Fifth Circuit Court of Appeals’ decision in
Robicheaux v. Caldwell, same-sex marriage was recognized as legal in Louisiana, and
the courts made clear that Louisiana must recognize valid out-of-state same-sex marriages.
See Robicheaux v. Caldwell, 791 F.3d 616 (5th Cir. 2015) (applying Obergefell to find
Louisiana’s same-sex marriage laws unconstitutional); POMS GN 00210.003(B).
Here, the evidence provided includes a copy of the Florida marriage record evidencing
the NH’s and the Applicant’s marriage in Florida on April XX, 2015, after Florida
first permitted same-sex marriage on January XX, 2015, but before Obergefell.[7] See Brenner v. Scott, 999 F.Supp.2d 1278 (N.D. Fla. 2014) (finding the state of Florida
ban on same-sex marriage violated the U.S. Constitution Fourteenth Amendment’s Due
Process and Equal Protection Clauses); POMS GN 00210.003(B) (same-sex marriages were first permitted in Florida on January 5, 2015); POMS
PR 02712.011 (“Florida began issuing marriage licenses to same-sex couples on January 5, 2015.”).
Pursuant to Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 94-98 (1993), SSA should
give Obergefell full retroactive effect in all cases still open on direct review and
as to all events, regardless of whether such events predate or postdate Obergefell.
As a result, SSA will consider State-law same-sex marriage bans, whether based on
State constitutional or statutory provisions or case law void and ineffective. SSA
will apply the relevant law to the facts as usual to evaluate marital status. Thus,
we apply Obergefell retroactively and conclude that Louisiana will recognize an out-of-state
same-sex marriage that was valid under the laws where it took place even if prior
to Obergefell. See Obergefell, 135 S. Ct. at 2607-2608 (“there is no lawful basis
for a State to refuse to recognize a lawful same-sex marriage performed in another
State on the ground of its same-sex character”); Costanza v. Caldwell, 16 So. 3d 619,
620 (La. 2015) (noting that in Obergefell, the U.S. Supreme Court “further recognized
that there is ‘no lawful basis’ to uphold so-called ‘recognition bans’ – such as Louisiana’s
laws banning recognition of same-sex marriages performed under the laws of other states.”);
La. Civ. Code Ann. art. 3520(A) (“A marriage that is valid in the state where contracted
. . . shall be treated as a valid marriage unless to do so would violate a strong
public policy . . .”). As same-sex marriage was permitted in Florida at the time that
the NH and the Applicant were married in April 2015, we consider whether their marriage
was otherwise valid under Florida law. See POMS GN 00210.003(B).
Here, the Applicant presented a copy of a completed and recorded Florida marriage
application, license, and certificate of marriage showing that the NH and the Applicant
completed an application to marry; were issued a marriage license on April XX, 2015,
by the Clerk of Circuit Court for Escambia County, Florida; and were married in a
ceremony in Pensacola, Florida on April XX, 2015, by Kathy Beniot, Deputy Clerk for
the Hon. Pam Childers, Clerk of Courts. Florida courts presume a ceremonial marriage
is legal and valid. See Stewart v. Hampton, 506 So. 2d 70, 71 (Fla. Dist. Ct. App.
1987); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984). Because
their marriage certificate indicates a ceremonial marriage occurred and that the NH
and the Applicant obtained a marriage license before the officiant solemnized the
marriage, all in accordance with Florida law, we believe that SSA could conclude that
Florida would presume the marriage was valid. See Fla. Stat. Ann. §§ 741.01, 741.04,
741.041, 741.07, 741.08, 741.09; see also Hall v. Maal, 32 So. 3d 682, 684-686 (Fl.
Dist. Ct. App. 2010) (Florida’s marriage statutes require substantial compliance).
Therefore, in determining whether the Child could inherit from the NH under Louisiana
intestate succession law as a child born during her parent’s marriage, Louisiana would
recognize their Florida marriage as valid.[8] See La. Civ. Code Ann. art. 185, 3506(8).
2. The Lack of a Biological Link and the Same-Sex Status of the Married
Parents
We also consider whether the IUI procedure and the NH’s lack of a biological link
to the Child has any legal significance under Louisiana intestate succession law impacting
to the Child’s right to inherit from the NH as a child born during her mother’s valid
same-sex marriage to the NH. As noted, according to evidence from the Audubon Fertility
Clinic, the NH and the Applicant sought fertility treatment from November 2016 to
January 2017, and an IUI procedure on November XX, 2016, resulted in the Child’s birth.
Thus, we understand that a third-party donor provided the sperm for the Child’s conception
through means of IUI procedure.[9] As discussed next, Louisiana law in general indicates that the right to inherit as
child born during her parents’ marriage is based on the parents’ martial relationship,
not biological parentage. And recent case law involving same-sex married parents is
consistent with this interpretation and focus upon the parents’ marriage in establishing
the parent-child relationship to the nonbiological parent.
a. Louisiana Law in General: The Parent-Child Relationship for a Child Born
During Her Parents’ Marriage is based on Parents’ Marital Relationship and Not
the Biological Relationship
The fact that the NH is not the Child’s biological parent does not affect the analysis
of whether the Child could inherit from the NH under Louisiana intestate succession
laws because, as noted above, the parent-child relationship for a child born during
her parents’ marriage - stems from the parents’ martial relationship, not biological
parentage. See La. Civ. Code Ann. art. 3506(8) (the term “children” for purposes of
intestate succession includes “those persons born of the marriage” and those whose
filiation has been established, which includes by a presumption of paternity); La.
Civ. Code Ann. art. 185 (the husband of the mother is presumed to be the father of
a child born during the marriage or within 300 days from the date of the termination
of the marriage); In the Matter of Succession of Dangerfield, 207 So. 3d at 429 (in
intestate succession, included among descendants are children born of the marriage);
In re Succession of Loustalot, 183 So. 3d at 558 (explaining that one way to establish
the parent-child relationship for intestate succession is through “legitimate filiation”
where the husband of the mother is presumed to be the father of a child born during
their marriage).
Louisiana courts have applied this presumption of parentage for children born during
a marriage even where evidence indicates they are not the presumed parent’s biological
children, where the time had expired for challenging such a presumption of parentage.[10] See Succession of Verrett, 70 So. 2d 89, 89-90 (La. 1953) (children conceived and
born during a marriage, but admittedly another man’s biological children, were entitled
to inherit as children from the husband’s estate as presumed children of their marriage,
where he did not file a timely action to disavow); Kenney v. Bowen, 1992 WL 37431,
at *4 (E.D. La. 1988) (as the child was both conceived and born during the marriage
of his mother and the deceased wage earner, it is presumed that the child is the child
of the deceased wage earner for inheritance purposes, and, as there was no evidence
of a timely disavowal of paternity, “the presumption of his paternity is exclusive”);
see also State, Dept. of Social Services, Office of Family Support ex rel. K.B.D.
v. Drew, 70 So. 3d 1011, 1012 (La. Ct. App. 2011) (in child support enforcement action,
mother’s husband is presumed to be the father of a child born during the marriage,
and therefore paternity was established by operation of law despite later DNA evidence
showing he was not the biological father).
Thus, in general, it is our understanding that under Louisiana law, the fact that
the NH is not the biological parent does not preclude inheritance as a child born
during her parents’ valid marriage because this method of establishing inheritance
rights is based on the parents’ marital relationship. See La. Civ. Code Ann. arts.
185, 3506(8).
b. Recent Cases on Parent-Child Relationships for Children of Same-Sex
Married Parents Focus on the Parents’ Marital Relationship and Not the
Biological Relationship
With regard to the same-sex status of the married couple as parents - a situation
in which it is also clear that one parent is not the biological parent - although
we are not aware of any Louisiana cases involving the intestate succession inheritance
rights of a child conceived during her biological mother’s same-sex marriage specifically,
treating children of same-sex married couples similarly to children of opposite-sex
married couples is supported by the U.S. Supreme Court’s decision in Pavan v. Smith,
137 S. Ct. 2075 (2017) and two recent Louisiana court of appeals decisions concerning
the parentage of children of same-sex married parents. Pavan considered whether the
birth certificate of children conceived through assisted conception and born to same-sex
married couples should list as the second parent the name of the same-sex spouse of
the child’s biological mother. Id. at 2076-77. At the time of the children’s birth,
the law in the state at issue (Arkansas) specified which names could appear on a child’s
state-issued birth certificate. Id. at 2077. With limited exceptions, the Arkansas
statute indicated that “the mother is deemed to be the woman who gives birth to the
child” and “[i]f the mother was married at the time of either conception or birth…the
name of [her] husband shall be entered on the certificate as the father of the child.”
Id. The Arkansas Supreme Court concluded that the name of a mother’s same-sex spouse
should not appear on a child’s state-issued birth certificate. Id. at 2076-77. Relying
upon Obergefell, the U.S. Supreme Court in Pavan reversed the Arkansas Supreme Court’s
decision and ruled that a married mother’s same-sex spouse is entitled to the same
recognition as parent on a child’s birth certificate that the Arkansas statute provides
to a married mother’s opposite-sex spouse (husband). Id. at 2078-79. The refusal to
provide such recognition amounted to a denial of “access to the constellation of benefits
that the Stat[e] ha[s] linked to marriage.” Id. at 2078 (citation omitted). The Court
stated:
Obergefell proscribes such disparate treatment. As we explained there, a State may
not ‘exclude same-sex couples from civil marriage on the same terms and conditions
as opposite-sex couples.’ 576 U. S., at ---, 135 S.Ct., at 2605. Indeed, in listing
those terms and conditions—the ‘rights, benefits, and responsibilities’ to which same-sex
couples, no less than opposite-sex couples, must have access—we expressly identified
‘birth and death certificates.’ Id., at ---, 135 S.Ct., at 2601. That was no accident:
Several of the plaintiffs in Obergefell challenged a State’s refusal to recognize
their same-sex spouses on their children’s birth certificates. See DeBoer v. Snyder,
772 F. 3d 388, 398–399 (C.A.6 2014). In considering those challenges, we held the
relevant state laws unconstitutional to the extent they treated same-sex couples differently
from opposite-sex couples. See 576 U. S., at ---, 135 S. Ct., at 2605. That holding
applies with equal force to § 20–18–401.
Id. Accordingly, the Pavan Court found that, because Arkansas allowed the husband
of a child’s birth mother to be listed as the parent on her child’s birth certificate
in situations involving assisted reproduction with donor sperm, Arkansas must allow
the same for a birth mother’s wife. Id. at 2079.
Recently, a Louisiana court of appeals reached a similar conclusion on the naming
of a same-sex spouse on a child’s birth certificate based on a presumption of parentage
in Chaisson v. State of Louisiana, 239 So. 3d 1074 (La. Ct. App. 2018), writ denied,
243 So. 3d 567 (La. 2018). In 2014, Chaisson gave birth to a child, who was conceived
via artificial insemination, in Louisiana at a time when she was in a same-sex marriage.
Id. at 1076. She did not alert the hospital that she was married, and the birth certificate
listed Chaisson as the mother but did not list a father. Id. at 1076, 1081. In 2017,
while still married, Chaisson’s same-sex spouse applied to amend the child’s birth
certificate to list her as a parent, providing proof that the child was born during
her marriage to Chaisson. Id. at 1077. The State’s Registrar of Vital Records approved
the application and issued an amended birth certificate based upon the couple’s marriage
license showing that they were married at the time of the child’s birth. Id. Chaisson
filed a writ of mandamus to require the Registrar of Vital Records to restore the
child’s birth certificate to its original form, which the trial court denied. Id.
The Louisiana court of appeals affirmed the trial court’s decision finding that the
Registrar of Vital Records acted in its capacity to amend the birth certificate to
add the mother’s same-sex spouse as the child’s parent based on the marriage license
alone, just as it would have done for an opposite-sex married couple. Id. at 1078-1079
(“The Registrar maintained that there is a legal presumption that the spouse of the
birth mother is also the other parent of the child, per [Louisiana Civil Code] art.
185. The Registrar noted that since the marriage license alone showed the parties
were married at the time of [the child’s] birth, the birth certificate could be amended
with the marriage license alone.”). The court, considering the Obergefell, Robicheaux,[11] and Pavan decisions, noted that the Registrar maintained that “the presumption of
parentage for the non-child bearing spouse provided for in [Louisiana Civil Code]
art. 185 is not biologically based but is based on the marriage contract in existence
at the time of [the child’s] birth,” and therefore, “the Registrar is legally required
to provide equal protection to same sex couples seeking to amend a birth certificate,
under Obergefell and Robicheaux.” Id. at 1081-1082 (“The Registrar testified he extended
the same benefits of marriage, i.e., the presumption that the spouse of the birth
mother is also the parent of the child, regardless of biological relation.”). The
court concluded there was “no error with the trial court’s finding that the Registrar
consistently applied the same procedure to amend a birth certificate of a child born
to a married couple, regardless of sexual orientation.” Id. at 1083.
Even more recently, in an action concerning an untimely disavowal of paternity (parentage),
a Louisiana court of appeals applied Louisiana Civil Code article 185 to find that
a presumption of parentage applied to a child born of a same-sex marriage in Boquet
v. Boquet, 269 So. 3d 895 (La. Ct. App. 2019). See La. Civ. Code Ann. art. 185 (“The
husband of the mother is presumed to be the father of a child born during the marriage
or within three hundred days from the date of the termination of the marriage.”),
art. 189 (“The action for disavowal of paternity is subject to a liberative prescription
of one year. This prescription commences to run from the day of the birth of the child,
or the day the husband knew or should have known that he may not be the biological
father of the child, whichever occurs later.”). The parties entered into a same-sex
marriage in December 2015. Boquet, 269 So. 3d at 897. One of the spouses was pregnant
at the time of their same-sex marriage and a child was born of the marriage in February
2016. Id. The parties filed for divorce in March 2017 and the nonbiological parent
filed an action for disavowal of paternity (parentage) in April 2017. Id. In considering
Obergefell and Pavan, the court of appeals noted that the court must apply article
185 as to the presumption of paternity of a husband and article 189 as to the time
limit for disavowal by the husband “in such a manner that Brittany, the female spouse
of a birth mother, has the same ‘constellation of benefits’ and obligations as those
of a male spouse of a birth mother.” Id. at 899-900. Consequently, the court found
that the child “was born of the marriage” and under article 185, Brittany (the nonbiological
same-sex spouse of the birth mother) was the child’s presumed parent. Id. at 900.
The court further found that as such, she was also subject to the time limitation
for disavowing parentage under article 189 and that she failed to meet this time limitation.
Id. This court’s application of a presumption of parentage to a child born of a same-sex
marriage under article 185 of the Louisiana Civil Code further supports finding that
the Child is “born of the marriage” and a child under article 3506(8) of the Louisiana
Civil Code for purposes of intestate succession.
Although the cases of Pavan, Chaisson, and Boquet did not specifically address intestate
inheritance rights of a child born of a same-sex marriage, we believe parent-child
determinations under Louisiana intestacy law are likely to be considered analogous
and extended to similarly situated same-sex married couples to find parent-child relationships
for inheritance purposes as well.
3. Summary: The Child has a Right to Inherit from the NH under Louisiana
Intestate Succession Law Based on her Parents’ Valid Same-Sex
Marriage
In summary, under Louisiana intestate succession law, a deceased individual’s property
passes to his or her descendants, which includes children. See La. Civ. Code Ann.
arts. 880, 882, 888, 1096. For purposes of intestate succession, “children” includes
those persons conceived or born during her parents’ marriage, and those persons whose
filiation has been established, which includes through application of a presumption
of paternity as a child born during her parents’ marriage. See La. Civ. Code Ann.
art. 3506(8); see also La. Civ. Code Ann. art. 185 (the husband of the mother is presumed
to be the father of a child born during the marriage or within 300 days from the date
of the termination of the marriage); In the Matter of Succession of Dangerfield, 207
So. 3d at 429 (in intestate succession, included among descendants are children born
of the marriage); In re Succession of Loustalot, 183 So. 3d at 558 (“In intestate
successions, the first class of intestate heirs is the descendant class. Included
among descendants are legitimates”).
We believe a Louisiana court would find that the evidence establishes the Child was
conceived while the NH and the Applicant (the Child’s biological mother) were in a
valid same-sex marriage and thus, that the Child was “born of the marriage.” Furthermore,
we believe a Louisiana court would find that the Child’s filiation to the NH has been
established through a presumption of parentage. Accordingly, as a child born during
her parents’ marriage, we believe a Louisiana court would find that the Child could
inherit from the NH under Louisiana intestate succession laws as her child. See La.
Civ. Code Ann. arts. 880, 882, 888, 3506(8). We note that the State has already recognized
the NH as the Child’s other parent on the Louisiana-issued birth certificate as the
NH is listed as the Child’s “father.” See La. Rev. Stat. Ann. § 40:42(A) (“every original
certificate on file in the vital records registry is prima facie evidence of the facts
therein stated”).[12]