QUESTIONS PRESENTED
Two children, Y.S. and E.S., were born during their mother’s marriage to Mr. J.S. An
Idaho state court terminated Mr. J.S.’s parental rights approximately three years
before he died. On the claim for surviving child’s insurance benefits, you asked whether
there was sufficient evidence to rebut the presumption that Y.S. and E.S. were the
legitimate children of Mr. J.S.
After you posed this question, the United States Supreme Court decided the case of
Astrue v. Capato ex rel. B.N.C., which discussed the definition of “child” in the Social Security Act (Act). In light
of the C~ decision, and the evidence presented in this claim, we must also address the issue
of whether Y.S. and E.S. were Mr. J.S.’s “child[ren]” for purposes of surviving child’s
insurance benefits under the Act.
BRIEF ANSWER
The answer to both questions is “no.” There is insufficient evidence to rebut the
presumption that Y.S. and E.S. are the legitimate, “natural” children of Mr. J.S. However,
consistent with the reasoning in C~, Y.S. and E.S. could only establish that they are Mr. J.S.’s “child[ren]” for purposes
of surviving child’s insurance benefits if they could inherit from Mr. J.S. under
the state intestacy laws of Idaho. Under Idaho law, the termination of Mr. J.S.’s
parental rights also terminated “all rights of inheritance to and from” Y.S. and E.S.
Thus, Y.S. and E.S. are not Mr. J.S.’s “child[ren]” within the meaning of the Act,
and they are not entitled to surviving child’s insurance benefits on Mr. J.S.’s record.
SUMMARY OF FACTS
Mr. J.S. and Mrs. S. were married in 1993. Y.S. was born approximately eleven months
later, and the birth certificate identified Mr. and Mrs. S. as Y.S.’s parents. E.S.
was born in 2001, and the birth certificate identified Mr. and Mrs. S. as E.S.’s parents. Shortly
after E.S. was born, Mr. and Mrs. S. separated and had an “off and on relationship
from that point on,” but they never divorced.
By decree in 2007, an Idaho state court found, in relevant part, that Mr. J.S. had
abandoned Y.S. and E.S. by failing “to provide for their emotional or financial support
or to establish and maintain a normal parent-child relationship with [them].” It concluded
that Mr. J.S. had abandoned and neglected Y.S. and E.S. by failing “to provide support
for [them] or to establish and maintain a relationship with [them].” The state court
also concluded that Mr. J.S. had abandoned and neglected Y.S. and E.S. “by being unwilling
to and not providing for the[ir] morals and well-being.” The state court then terminated
Mr. J.S.’s parental rights as to both Y.S. and E.S., thereby “relinquishing completely
and forever all legal rights, privileges, duties and obligations, including all rights
of inheritance to and from said children.”
Mr. J.S. died in late 2010, and he was domiciled in Idaho at the time of his death. In
January 2011, Mrs. S. applied for surviving child’s insurance benefits on Mr. J.S.’s
record on behalf of Y.S. and E.S. In a written statement dated in September 2011,
Mrs. S. stated that Mr. J.S. was not the biological father of either Y.S. or E.S. A
couple of months later, the Idaho Department of Health & Welfare reported that Mrs.
S. had identified C.M. as Y.S.’s biological father and Z.M. as E.S.’s biological father.
The department did not have any genetic or paternity testing concerning Y.S. and E.S.
ANALYSIS
A. The “Child” Requirement for Entitlement to Surviving Child’s Insurance Benefits
Under the Act, a claimant may be entitled to surviving child’s insurance benefits
if he is the “child” of an insured individual. In addition to being a “child,” the
claimant must file an application; be a “dependent” of the insured at the time of
the insured’s death; be unmarried; and be either under the age of 18, a full-time
elementary or secondary school student under the age of 19, or under a disability
that began before the age of 22. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a).
42 U.S.C. § 402(d); 20 C.F.R. §§ 404.350(a)(1) (2011). Subject to applicable requirements,
any one of several categories of children could satisfy the Act’s definition of “child,”
including “natural” children, legally adopted children, equitably adopted children,
stepchildren, grandchildren, and stepgrandchildren. 42 U.S.C. § 416(e); 20 C.F.R.
§§ 404.354-.359. Here, Y.S. and E.S. must show that they are the “natural” children
of Mr. J.S. There is no allegation or evidence that Y.S. and E.S. were the adopted
children, stepchildren, grandchildren, or stepgrandchildren of Mr. J.S.
In Idaho, there is a rebuttable presumption that the mother’s husband is the father
of a child born during wedlock. Idaho Code Ann. § 7-1119; Alber v. Alber, 472 P.2d 321, 326-27 (Idaho 1970). This presumption of legitimacy can be rebutted
by: (1) “[g]enetic tests which show that the husband is not the father of the child”;
or (2) “[a]n affidavit of nonpaternity signed by the natural mother and her husband
and an affidavit of paternity signed by the natural mother and natural father.” Idaho
Code Ann. § 7-1119. Here, the presumption of legitimacy is not rebutted. Mr. and Mrs.
S. were married before, during, and after the conception and birth of both Y.S. and
E.S. There are no genetic tests showing that Mr. J.S. was not the father of Y.S.
and E.S. Although Mrs. S. now alleges that other men fathered Y.S. and E.S., and that
Mr. J.S. was therefore not the biological father of Y.S. and E.S., there are no affidavits
of paternity and nonpaternity as required by Idaho law to rebut the presumption of
legitimacy. Thus, SSA must presume that Y.S. and E.S. are the legitimate, “natural”
children of Mr. J.S.
However, as confirmed by the recent United States Supreme Court case of Astrue v. Capato ex rel. B.N.C., — S.Ct. —, 2012 WL 1810219 at *2 (May 21, 2012), “[a] biological parent is not always
a child’s parent under law.” In order to be eligible for surviving child’s insurance
benefits as an insured’s “natural” child, a claimant must meet one of the following
four conditions: Prior to Capato, the Ninth Circuit took a broad view of the Act’s definition of “child” and minimized
the role of 42 U.S.C. § 416(h)(2) & (h)(3) and 20 C.F.R. § 404.355 in analyzing the
Act’s definition of “child.” Gillett-Netting v. Barnhart, 371 F.3d 593, 596-97 (9th Cir. 2004). Specifically, the Ninth Circuit found that
the children in that case satisfied the Act’s definition of “child” because they were
the insured’s “natural, biological children,” without analyzing whether they also
met the conditions set forth in 42 U.S.C. § 416(h)(2) & (h)(3) and 20 C.F.R. § 404.355. Id. SSA disagreed with the Ninth Circuit’s interpretation of the Act, but applied it
in cases arising in the Ninth Circuit. See Social Security Acquiescence Ruling 05-1(9), 70 Fed. Reg. 55656 (2005). Eventually,
in the Capato case, the Supreme Court agreed with SSA’s interpretation of the Act, thereby implicitly
overruling the Gillett-Netting case. Thus, in the Ninth Circuit, 42 U.S.C. § 416(h)(2) & (h)(3) and 20 C.F.R. §
404.355 must now be applied in analyzing whether an insured’s “natural” child meets
the Act’s definition of “child.” C~, WL 1810219 at *5 (recognizing that the regulations at § 404.355 “closely track 42
U.S.C. § 416(h)(2) and (h)(3)”).
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1.
The claimant could inherit the insured’s personal property as the insured’s natural
child under state inheritance laws if the insured had died without leaving a will. 42
U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), (b)(1) & (4).
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2.
The claimant is the insured’s natural child, and the insured and the claimant’s mother
or father went through a ceremony which would have resulted in a valid marriage between
them except for a legal impediment. 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).
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3.
The claimant is the insured’s natural child, and the claimant’s mother or father has
not married the insured, but the insured has either acknowledged in writing that the
claimant is his or her child, been decreed by a court to be the claimant’s mother
or father, or been ordered by a court to contribute to the claimant’s support because
the claimant is his or her child. 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3).
or
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4.
The claimant’s mother or father has not married the insured but the claimant has evidence,
other than evidence described in the preceding paragraph, to show that the insured
is the claimant’s natural father or mother, as well as evidence to show that the insured
was either living with the claimant or contributing to the claimant’s support when
he or she died. 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4).
An insured’s “natural” child must satisfy one of these four conditions in order to
qualify as a “child” for purposes of surviving child’s insurance benefits. C~, 2012 WL 1810219 at *6 (“The regulations make clear that the SSA interprets the Act
to mean that the provisions of § 416(h) are the exclusive means by which an applicant
can establish ‘child’ status under § 416(e) as a natural child.”) (quoting Beeler v. Astrue, 651 F.3d 954, 960 (8th Cir. 2011)). Here, only the first condition—pertaining to
state inheritance laws—is potentially applicable to Y.S. and E.S. The second condition
does not apply because there is no allegation or evidence that Mr. and Mrs. S.’s marriage
was invalid due to a “legal impediment,” and the third and fourth conditions do not
apply because Mr. and Mrs. S. were married.
Thus, in order to be Mr. J.S.’s “child[ren]” for purposes of surviving child’s insurance
benefits, Y.S. and E.S. must show that they could inherit from Mr. J.S. under the
intestacy laws of Idaho, the state in which Mr. J.S. was domiciled at the time of
his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) & (4).
B. Idaho Intestacy Laws
Where, as here, there is a surviving spouse of a decedent, the “issue” of the decedent
could inherit one half of the decedent’s separate (non-community) property if the
decedent died without leaving a will. Idaho Code Ann. §§ 15-2-102, 15-2-103. The “issue”
of a decedent “means all of his lineal descendants of all generations, with the relationship
of parent and child at each generation determined by the definitions of child and
parent contained in this code.” Idaho Code Ann. § 15-1-201(26). Thus, if Y.S. and
E.S. met the definition of “child[ren]” of Mr. J.S. under the Idaho probate code,
they would be Mr. J.S.’s “issue” and could therefore inherit one half of Mr. J.S.’s
separate (non-community) property if he died without leaving a will.
In relevant part, the Idaho probate code defines “child” as “any individual entitled to take as a child under this code by intestate succession from the parent whose
relationship is involved.” Idaho Code Ann. § 15-1-201(4) (italics added). Here, the
evidence shows that Y.S. and E.S. are not entitled to take by intestate succession from Mr. J.S. Under Idaho law, “[a]n order
terminating the parent and child relationship shall divest the parent and the child
of all legal rights, privileges, duties, and obligations, including rights of inheritance, with respect to each other.” Idaho Code Ann. § 16-2011 (italics added). By decree dated August 23, 2007—approximately
three years before Mr. J.S.’s death—an Idaho state court terminated “the parent-child
relationship between the minor children, Y.S. and E.S. to their legal father, Mr.
J.S.,” thereby “relinquishing completely and forever all legal rights, privileges,
duties and obligations, including all rights of inheritance to and from said children.”
SSA’s reliance on this state court decree is consistent with agency policy. See Social Security Ruling 83-37c (“Child’s Insurance Benefits—Presumption of Legitimacy
of Child Born During Wedlock—Effect of State Court’s Determination of Legitimacy in
Contested Divorce Case”). As a result, Y.S. and E.S. are not the “child[ren]” of Mr.
J.S. under the Idaho probate code, and they therefore could not inherit from Mr. J.S.
under the intestacy laws of Idaho. Accordingly, Y.S. and E.S. are not Mr. J.S.’s
“child[ren]” within the meaning of the Act, and they are not entitled to surviving
child’s insurance benefits on Mr. J.S.’s record.
CONCLUSION
SSA must presume that Y.S. and E.S. are the legitimate, “natural” children of Mr.
J.S., as there is insufficient evidence to rebut the presumption of legitimacy. However,
as the C~ case confirmed, an insured’s “natural” child must still meet one of four conditions
before he would meet the Act’s definition of “child” for purposes of surviving child’s
insurance benefits. Y.S. and E.S. do not meet the only condition potentially applicable
to them—inheritance under Idaho’s intestacy laws—because their parent-child relationship
with Mr. J.S. was terminated by state court decree, and this decree had the effect
of terminating “all rights of inheritance to and from” Y.S. and E.S. Because Y.S.
and E.S. could not inherit from Mr. J.S. under Idaho’s intestacy laws, they are not
Mr. J.S.’s “child[ren]” within the meaning of the Act, and they are not entitled to
surviving child’s insurance benefits on Mr. J.S.’s record.