Issue
                You asked whether a child-parent relationship exists between A~ (NH) and V~ and J1~
                  (claimants) for purposes of determining the claimants’ entitlement to CIB under Title
                  II of the Social Security Act (Act). The NH was married to the claimants’ biological
                  mother (J2~) in Massachusetts at the time the claimants were born.  The NH currently
                  resides in New Hampshire.  
               
                Short Answer  
               Yes. The claimants are entitled to CIB as the NH’s children because a child-parent
                  relationship is established for purposes of Title II of the Act.
               
                Background
                The NH and J2~ were married on May XX, 2004, in S~, Massachusetts. Their marriage
                  is valid under Massachusetts law, which has recognized same-sex marriages since 2004.
                  Same-sex marriages have been valid in Massachusetts since May 17, 2004, as a result
                  of the Supreme Judicial Court’s decision in Goodridge v. Dep’t of Public Health, 798 N.E. 2d 941 (Mass. 2003). Two years after the couple married, V~ was born on
                  August 2006. J1~ was born on August 2008. Both claimants were born in M~, Massachusetts,
                  and both birth certificates list A~ as the “father” and J2~ as the “mother.” J2~ is
                  the biological mother to both claimants. At this time, the couple is divorcing and
                  have a shared custody agreement in place.
               
                The NH, now resides in New Hampshire, and is currently receiving Social Security
                  disability benefits under Title II.       
               
               Analysis
                The Act and Regulations
                A claimant may be entitled to CIB under section 202(d)(1) of the Act,  if he or she
                  (1) is the “child” of an insured individual NH, as defined in section 216(e) of the
                  Act, and (2) was dependent on the insured individual at the time the application was
                  filed. See Act   § 202(d)(1)(C)(i). In determining whether a claimant qualifies as the child
                  of the NH, the Commissioner 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 application.” In this case, we evaluated whether
                  the claimants would be considered the “natural child[ren]” of the NH under 20 C.F.R.
                  § 404.355 because the facts of the case failed to support any of the alternative “child”
                  classifications. The claimants were not legally adopted by the NH. 20 C.F.R. § 404.356.
                  The claimants also fail to satisfy the definition of “stepchild[ren]” under our rules
                  because they were both conceived and born during the couple’s marriage. 20 C.F.R.
                  § 404.357. Lastly, the NH is not the claimants’ grandparent. 20 C.F.R. § 404.358.
                  See Act § 216(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”); Social Security Ruling 77-2c (“where
                  state intestacy law provides that a child may take personal property from a father’s
                  estate, it may reasonably be thought that the child will more likely be dependent
                  during the parent’s life...”). Thus, if a claimant establishes she has inheritance
                  rights under state intestacy laws, he is deemed the insured’s “child” under the Act.
                  Since the NH is domiciled in New Hampshire, we apply New Hampshire intestacy law to
                  determine whether the claimants are the NH’s children for the purposes of the Act.
               
               State Law
                The New Hampshire inheritance laws relevant to this issue are codified at Section
                  561:1 of the New Hampshire Revised Statutes Annotated. N.H. Rev. Stat. Ann. § 561:1
                  et seq. Under that section, when an individual dies without a will, his or her property
                  shall be distributed primarily, in circumscribed proportionality, to the surviving
                  spouse (if one exists), any surviving “issue,” and the parents of the decedent. N.H.
                  Rev. Stat. Ann. § 561:1. Section 21:20 defines “issue,” in this context, as “all the
                  lawful lineal descendants of the ancestor.” N.H. Rev. Stat. Ann. § 21:20. In Merrow v. Merrow, 105 N.H. 103, 106, 193 A.2d 19, 21 (1963), the Supreme Court of New Hampshire explained
                  that “‘Issue’ in its ordinary meaning is descriptive of lineal descendants of deceased,
                  including children, grandchildren, and great grandchildren.” Thus, if a parent-child
                  relationship has been established under New Hampshire law, then that child will be
                  entitled to inherit property when the parent dies without a will and, for our purposes,
                  will be considered a “natural child” of that parent under 20 C.F.R. § 404.355.
               
               Under Section 458:23 of the New Hampshire Revised Statutes, “children born of a marriage
                  entered into in good faith by the parties thereto shall be regarded as legitimate
                  children and their legitimacy shall not be affected by a decree of nullity, unless
                  it shall be so expressed in the decree.” N.H. Rev. Stat. Ann. § 458:23. See also Bodwell v. Brooks,  141 N.H. 508, 510, 686 A.2d 1179, 1181 (1996) (noting that under common law and
                  by statute, children conceived or born during lawful marriage are presumed to be legitimate.).
                  Although the couple in Bodwell were opposite sex spouses, we believe the same presumption would apply to children
                  born during same-sex marriages because such marriages have been legally recognized
                  in New Hampshire since 2009 On January 1, 2010, same-sex marriage became legal in
                  New Hampshire. N.H. Rev. Stat. Ann. § 457:1-a. and because New Hampshire also recognizes
                  valid same-sex marriages from other states. N.H. Rev. Stat. Ann. § 457:3. See also In re Guardianship of Madelyn B., 166 N.H. 453, 460, 98 A.3d 494, 500 (2014) (holding that N.H. Rev. Stat. Ann. § 168-B:3
                  applies equally to women and men in a parental legitimacy dispute involving a same-sex,
                  unmarried couple, stating “The policy goals of ensuring legitimacy and support would
                  be thwarted if our interpretation of RSA 168–B:3 failed to recognize that a child’s
                  second parent under that statute can be a woman.”)  
               
               This presumption of parenthood is rebuttable, however, “if the court finds that the
                  conclusions of all the experts, as disclosed by the evidence based upon the tests,
                  show that the husband is not the father of the child.” N.H. Rev. Stat § 522:5. Evidence
                  to rebut presumption of legitimacy may include blood tests, expert or lay testimony,
                  medical or scientific evidence, statistical probability evidence, proof of voluntary
                  acceptance of parental responsibility, estoppel for failure to question paternity
                  after substantial period of uninterrupted acquiescence, and physical resemblance between
                  child and putative father. Bodwell, 141 N.H. at 510,  686 A.2d at 1181-82. In this case, there has been no attempt on
                  the part of the NH to rebut this presumption. On the contrary, both parties have entered
                  into a joint parenting agreement, explicitly detailing the joint custody and decision-making
                  authority that will exist once the couple’s divorce becomes final. For this reason
                  alone, we do not believe the presumption of parenthood would be disturbed. Thus, under
                  New Hampshire inheritance law (which also encompasses general parent-child law in
                  the State), we believe the children would be considered the legitimate or “natural”
                  children of the NH.   
               
               Conclusion
                Under New Hampshire inheritance laws the claimants could inherit as the NH’s children
                  if the NH were to die intestate. Accordingly, we conclude that the claimants should
                  be viewed as the NH’s “children” for the purposes of determining eligibility for child’s
                  insurance benefits under the Act.
               
               Christopher Michaels
               Regional Chief Counsel (Acting)
               By: Candace Lawrence  
               Assistant Regional Counsel