QUESTION
You asked whether there is a parent-child relationship between the number holder (NH),
C~, and A~ (Claimant) for purposes of determining Claimant’s entitlement to Title
II child’s insurance benefits on the NH’s account, where Claimant was born during
her biological mother’s same-sex marriage to the NH.
ANSWER
Yes. Under Ohio intestacy law, Claimant may inherit intestate from the NH as her child.
Thus, we can conclude that you may find Claimant is the NH’s child for purposes of
entitlement to child’s insurance benefits under the Social Security Act.
FACTS
On June XX, 2005, the NH and Claimant’s biological mother, M~, entered into a same-sex
marriage in Ontario, Canada. The NH provided a copy of their marriage certificate
issued in Ontario, Canada.
According to a declaration completed by the NH, Claimant was conceived via donor insemination
at the University Hospital of Cleveland in 2007. Per the declaration, the NH was fully
aware of and consented to the procedure.[1]
On January XX, 2008, Claimant was born in Ohio. Claimant’s birth certificate lists
M~ as her biological mother. Claimant’s birth certificate does not list a father or
second parent.
The NH began receiving disability insurance benefits in July 2013. The NH has filed
an application on behalf of Claimant for child’s insurance benefits under the NH’s
Social Security record. The NH currently resides in L~, Ohio, with M~ and Claimant.
ANALYSIS
Under the Social Security Act (Act), every unmarried minor child of an individual
entitled to old-age or disability insurance benefits shall be entitled to child’s
insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). As relevant
here, the applicant must qualify as the insured individual’s “natural child” and be
dependent on the insured individual at the time she filed her application for child’s
insurance benefits. See id.; 20 C.F.R. §§ 404.350, 404.355. In determining whether an applicant qualifies as
the child of the insured individual, the Commissioner applies the law governing the
devolution of intestate personal property by the courts of the State in which such
insured individual was domiciled at the time of application. Social Security Act §
216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who
satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent
upon the insured individual. 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. . .
.”).
Here, the NH was domiciled in Ohio at the time Claimant’s application for child’s
insurance benefits was filed. Accordingly, the agency looks to Ohio intestacy law
to determine whether the NH is Claimant’s parent. Under Ohio law, a child may inherit
intestate from his or her parent. See Ohio Rev. Code Ann. § 2105.06 (statute of intestate descent and distribution). Thus,
if Claimant is the child of the NH under Ohio law, she would be able to inherit from
the NH and would therefore be a “child” under 42 U.S.C. § 416(h)(2)(A).
Ohio Revised Code section 3111.03 sets forth three presumptions for establishing that
an individual is the natural father of a child. See Ohio Rev. Code. Ann. § 3111.03(A). These presumptions apply equally in determining
the existence or non-existence of a mother and child relationship. See Ohio Rev. Code Ann. § 3111.17 (“[i]nsofar as practicable, the provisions of sections
3111.01 to 3111.18 of the Revised Code that are applicable to the father and child
relationship shall apply to an action brought under this section” to determine the
existence or non-existence of a mother and child relationship); S.N. v. M.B., 188 Ohio App. 3d 324, 332 (Ohio Ct. App. 2010) (it is appropriate to look at presumptions
under § 3111.03 pertaining to establishment of a father and child relationship when
determining the existence of a mother and child relationship). One of the three presumptions
applies in this case. Specifically, pursuant to Ohio Revised Code section 3111.03(A)(1),
a man is presumed to be the natural father of a child if the man and the child’s biological
mother are married to each other, and the child is born during the marriage or is
born within 300 days after termination of the marriage.
Claimant’s biological mother and the NH were married in Ontario, Canada on June XX,
2005. The NH provided proof of the foreign ceremonial same-sex marriage. At the time
of their marriage, same-sex marriages were valid and recognized in Ontario, Canada.
See Program Operations Manual System (POMS) GN 00210.006.D (Ontario, Canada permitted same-sex marriages on June 10, 2003). Therefore, under
POMS GN 00210.006.B, the agency will recognize the marriage as of the date it was established. Further,
Ohio must also recognize the validity of the Canadian same-sex marriage. Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015) (“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”).
Because Claimant was born during the valid marriage of her biological mother to the
NH, Ohio law presumes that Claimant is the NH’s child, with the right to inherit intestate
from the NH. See Ohio Rev. Code Ann. §§ 2105.06, 3111.03(A)(1). This presumption may only be rebutted
by clear and convincing evidence, including the results of genetic testing. See Ohio Rev. Code Ann. § 3111.03(B). However, the presumption is conclusive if Ohio
Revised Code section 3111.95(A) applies. Ohio Revised Code section 3111.95(A) provides
that, where the mother conceives the child through non-spousal artificial insemination
and the spouse consents to the artificial insemination, the spouse is conclusively
presumed to be the parent of the child. See id. §§ 3111.03(B), 3111.95(A). Here, Claimant’s mother conceived her through non-spousal
artificial insemination in 2007, and the NH consented to the artificial insemination.
Therefore, Ohio law conclusively presumes that Claimant is the NH’s child.
Accordingly, we conclude that you may reasonably find Claimant is the child of the
NH under section 216(h)(2)(A) of the Act, for purposes of entitlement to child’s insurance
benefits on the NH’s record.
CONCLUSION
Under Ohio law, Claimant may inherit intestate from the NH as her child because Claimant
was born during her biological mother’s marriage to the NH, and because the Claimant
was conceived through non-spousal artificial insemination with the NH’s consent. Accordingly,
Claimant is the child of the NH for purposes of entitlement to child’s insurance benefits
on the NH’s account.
Kathryn Caldwell
Regional Chief Counsel, Region V
By: Francesco P. Benavides
Assistant Regional Counsel