Effective Dates: 09/13/2019 - Present Previous | Next

TN 43 (09-19)

GN 00306.014 Use of State Intestacy Laws to Develop Title II Parent-Child Relationship

Citations:

Social Security Act § 216(h)(2)(A)

Code of Federal Regulations § 404.355

A. When to apply State intestacy laws to develop child status

Apply State intestacy laws in GN 00306.405 through GN 00306.680 when using State law to determine child status and you cannot find child status based on the general rules in GN 00306.011.

IMPORTANT: For cases involving surrogacy or posthumous conception, see GN 00306.014C and GN 00306.014D, respectively.

B. Applying State intestacy laws to cases involving retroactive benefits

Some State laws require triggering events, such as a blood test or similar evidence, before a non-marital child can inherit. In these situations, when retroactive benefits are at issue, the child’s status as the NH’s child is effective on the date the last required piece of evidence was generated, unless the evidence points to an earlier date. In some of these cases, the child may not be entitled to retroactive benefits. Information about these laws is annotated with an (I) in our State Law Digest in GN 00306.405 through GN 00306.680. If the evidence points to an earlier date than when the last required piece of evidence was generated, request a legal opinion on the effective date of the parent-child relationship using instructions in GN 01010.815.

C. Applying State intestacy laws to cases involving surrogacy

For all cases involving surrogacy, request a legal opinion using instructions in GN 01010.815.

EXCEPTION: Cases in which a court decree establishes a biological parent-child relationship (see GN 00306.100) do not require a legal opinion unless the decree is questionable (see GN 00306.015).

D. Applying State intestacy laws to cases involving posthumous conception

For all cases involving posthumous conception, i.e., the child was conceived after the NH’s death, request a legal opinion using instructions in GN 01010.815. This area of law is developing, and each parent-child relationship determination involving posthumous conception requires a new legal opinion.

A posthumously conceived child:

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    is a non-marital child; and

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    can only be entitled if he or she has inheritance rights under applicable State intestacy law. Other child relationship categories in GN 00306.002F do not apply to a child conceived posthumously.

Develop for posthumous conception when:

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    information is provided indicating the child was conceived posthumously, or

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    child was born more than 287 days after the NH's death.

E. Establishing paternity for a non-marital child after the NH's death

The appropriate State Law Digest entries in GN 00306.405 through GN 00306.680 indicate the standard of proof to apply when determining paternity. If the State intestacy law imposes a time limit within which someone must act to establish paternity, see GN 00306.014J.

F. When a State court determination of paternity is not required

We do not require a claimant to obtain a court determination of paternity before we can find that a parent-child relationship exists even if State intestacy law would require one before the child could inherit. Instead, evaluate the relationship by applying the standard of proof that the State court would use.

The appropriate State Law Digest entries in GN 00306.405 through GN 00306.680 indicate the standard of proof to apply when determining paternity. If there are questions about meeting the standard of proof, request a legal opinion following instructions in GN 01010.815.

G. Determining which State's intestacy laws apply

For most claims, we look to the intestacy laws of the NH’s State of domicile, as defined in GN 00306.001F. For instructions on developing questionable domicile, see GN 00305.001C.1. Refer questions about the NH’s domicile for a legal opinion using instructions in GN 01010.815.

NOTE: For situations in which we may look to the laws of a State other than the NH’s State of domicile, see GN 00306.014H.

If the NH’s permanent home is not or was not in a State as defined in GN 00306.001R, we look to see which laws the District of Columbia would apply when a NH's domicile is in a foreign country to determine if the claimant could inherit intestate as that person’s child.

After determining which State’s intestacy laws apply, determine which version of the law to apply as instructed in GN 00306.014I.

1. Life cases

If the NH is alive at the time of the application, we consider the case a “life case.” In a life case, apply the intestacy laws of the NH's State of domicile as of the filing date of the child's application. If this does not permit entitlement and the NH moves during the life of the application, you may look to the State law of the NH’s new domicile.

2. Death cases

If the NH is deceased at the time of the application, we consider the case a “death case.” In a death case, apply the intestacy laws of the NH's State of domicile at the time of his or her death.

H. When NH's State of domicile may look to the law of another State

Although the law of the NH’s State of domicile at the time of the child’s application or NH’s death governs in determining relationship, that State may apply the law of the place where an event, e.g., birth or adoption, occurred in determining its validity.

Request a legal opinion using instructions in GN 01010.815 when:

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    NH moved after an event which could establish a parent-child relationship occurred; and

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    the law of the NH’s State of domicile as of the filing date of the child’s application or NH’s death does not permit the child’s entitlement with full retroactivity.

In situations such as these, under the conflict of laws or choice of law principles, we may look to the law of a State other than the NH’s State of domicile to establish a parent-child relationship. A conflict of laws or choice of law issue occurs when there is a question that requires a determination of which State’s laws should govern.

I. Determining which version of State intestacy law to apply

State intestacy law may change over time, resulting in different versions of the law. Because of such changes, after determining which State’s intestacy laws apply, you must determine which version of intestacy law to apply. Use the effective dates in the appropriate State Law Digest entry to determine which version of State law applied at a particular time.

1. Life cases

If the NH is alive, evaluate the versions of State intestacy law in the following order:

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    the version of State law that is in effect when the child applies for benefits; then

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    all other versions of State law that were in effect from the first month the child could be entitled to benefits up until the time of our final determination.

Apply the version of the law that would enable the earliest entitlement date.

2. Death cases

If the NH is deceased, evaluate the versions of State intestacy law in the following order:

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    the version of State law that is in effect when we adjudicate the child’s application for benefits; then

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    the version of State law that was in effect when the NH died; then

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    any version of State law in effect from the first month the child could be entitled to benefits up until the time of our final determination.

Apply the version of the law that would enable the earliest entitlement date.

3. Examples of determining which version of State intestacy law to apply

The following are examples of determining which version of State intestacy law to apply.

a. Example of applying a State law that operates prospectively

The child was born in December 2016. Her father, the NH, died in January 2018. The child’s mother filed an application on the child’s behalf in September 2018. As a survivor, the child is eligible for up to 6 months of retroactive benefits. Therefore, if the child meets entitlement requirements, the child can be entitled to benefits as early as March 2018 based on a September 2018 filing date. We are adjudicating the claim in October 2018.

First, we look at the version of State law in effect when adjudicating the claim. That version is an inheritance rights provision operating prospectively that was effective in August 2018. The child can qualify under this provision, with a first month of entitlement of August 2018. Since this version does not allow us to pay benefits retroactive to March 2018, we must determine whether there is a more beneficial version of State law that would enable an earlier entitlement date. The child cannot meet the standard of proof in the version of law in effect at the time of the NH's death, and there were no subsequent changes in the law until August 2018. Therefore, the child cannot be entitled before August 2018.

b. Example of applying a State law that operates retroactively to the child's birth

The facts are the same as in the example in GN 00306.014I.3.a, except that the State law in effect when adjudicating the claim in October 2018 (the provision that was effective in August 2018), operates retroactively to the child’s birth. Therefore, we can establish the child’s relationship to the NH as of the child’s birth, and the child’s first month of entitlement would be March 2018, providing full retroactivity.

4. When to request a legal opinion on changes in State intestacy law

Request a legal opinion using instructions in GN 01010.815 when you need to establish a child relationship for a prior period and you cannot determine which version of State law to apply because the applicable State Law Digest entry in GN 00306.405 through GN 00306.680:

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    does not provide the date the law went into effect; or

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    shows only effective dates more recent than the child relationship period you are addressing.

J. State intestacy laws that impose time limits

The appropriate State Law Digest entries in GN 00306.405 through GN 00306.680 indicate the standard of proof to apply when determining paternity.

We do not require a claimant to obtain a court determination of paternity before we can find that a parent-child relationship exists even if State intestacy law would require one before the child could inherit. Instead, evaluate the relationship by applying the standard of proof that the State court would use.

Refer all claims involving State intestacy laws that impose time limits within which someone must act to establish paternity for a legal opinion using instructions in GN 01010.815.

K. Reference

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    GN 00306.065 Evidentiary Standards Under State Intestacy Laws

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GN 00306.014 - Use of State Intestacy Laws to Develop Title II Parent-Child Relationship - 09/13/2019
Batch run: 09/12/2023
Rev:09/13/2019