QUESTION PRESENTED
You have asked whether, under New Mexico State law, a parent-child relationship exists
between the number holder D~ (number holder) and claimant L~ (claimant) based on a
same-sex marriage between the number holder and claimant’s biological mother, M~ (M),
for purposes of claimant’s entitlement to Title II child’s insurance benefits on the
number holder’s record.[1]
ANSWER
Yes. It is our opinion that claimant is the number holder’s child for purposes of
determining his entitlement to child’s benefits on the number holder’s earnings record.
BACKGROUND
As we understand the facts, M~ and the number holder, both female, were married on
February XX, 2011, in New Hampshire. M~ gave birth to claimant on December XX, 2011,
in New Mexico. Claimant’s New Mexico birth certificate lists the number holder as
his “Father or Parent One” and M~ as his “Mother or Parent Two.” We have no evidence
that the number holder legally adopted claimant. On or about July XX, 2013, the number
holder, while domiciled in New Mexico, applied for disability insurance benefits under
Title II of the Social Security Act (Act). The number holder listed claimant as her
child on her application, and indicated that the parent-child relationship began December
XX, 2011 (claimant’s date of birth) and is based on inheritance rights. The agency
determined that the number holder was entitled to Title II benefits effective August
2012.
ANALYSIS
A. Requirements for Child’s Insurance Benefits under the Act
Under the Act, every unmarried minor child of an insured individual is entitled to
child’s insurance benefits. Act § 202(d)(1). However, to receive child’s insurance
benefits, the applicant must qualify as the insured individual’s “child,” as defined
by section 216(e) of the Act, and be dependent on the insured individual at the time
he filed his application. See id.; 20 C.F.R. § 404.350.
Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child
of an individual.” Act § 216(e)(1). The Act further provides: “[i]n determining whether
an applicant is the child . . . [of an] insured individual . . . apply such law as
would be applied in determining the devolution of intestate personal property by the
courts of the State . . . .” in which the insured individual was domiciled. Act §
216(h)(2)(A). An applicant is eligible for benefits as the insured individual’s “natural
child” if he could inherit property based on this intestacy test. 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. See 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 (SSR)
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 . . . .”).
The number holder was domiciled in New Mexico at the time the application was filed.
Accordingly, New Mexico intestate succession law determines claimant’s relationship
with the number holder, and thus, his entitlement to child’s insurance benefits on
the number holder’s record.
B. New Mexico Intestate Succession Law
Article 2, Part 1 of New Mexico’s Uniform Probate Code (UPC), N.M. Stat. Ann. §§ 45-2-101
– 45-2-122, codifies New Mexico’s law of intestate succession. Any part of a decedent’s
estate that is not disposed of by a will passes by intestate succession to the decedent’s
heirs as provided for in the UPC, which includes the decedent’s surviving spouse and
descendants. N.M. Stat. Ann. §§ 45-2-101(A), 45-2-103(A)(1). “Descendant” means an
individual who has established a parent-child relationship with the decedent. See N.M. Stat. Ann. § 45-1-201(9); see also N.M. Stat. Ann. § 45-1-201(6) (defining “child” as “an individual entitled to take
as a child pursuant to the [UPC] by intestate succession from the parent whose relationship
is involved and excludes a person who is only a stepchild, a foster child, a grandchild
or any more remote descendant”). If a parent-child relationship exists or is established,
“the parent is a parent of the child and the child is a child of the parent for the
purpose of intestate succession.” N.M. Stat. Ann. § 45-2-116. The UPC, however, does
not set forth specific methods for establishing the parent-child relationship for
purposes of intestate succession. We look to New Mexico’s Uniform Parentage Act (UPA),
N.M. Stat. Ann. §§ 40-11A-101 – 40-11A-903, which determines parentage in New Mexico
for all purposes under New Mexico law, including for intestate succession under the
UPC. See N.M. Stat. Ann. §§ 40-11A-103(A), 40-11A-203; see also Estate of Swift ex rel. v. Bullington, 309 P.3d 102 (N.M. Ct. App. 2013) (recognizing that the UPA governs determinations
of parentage in New Mexico, and that a parentage action could be maintained after
a putative father’s death). The UPA defines “child” as “a person of any age whose
parentage may be determined pursuant to the New Mexico [UPA].” N.M. Stat. Ann. § 40-11A-102(F).
The UPA does not expressly address parentage determinations in the context of a same-sex
marriage, such as in this case. Under the UPA, the mother-child relationship is established
between a woman and a child by:
(1) the woman’s having given birth to the child;
(2) an adjudication of the woman’s maternity; or
(3) the woman’s adoption of the child.
N.M. Stat. Ann. § 40-11A-201(A). None of these circumstances apply here to the number
holder’s relationship with claimant. However, the UPA also provides that “[p]rovisions
of the New Mexico [UPA] relating to determinations of paternity apply to determinations
of maternity insofar as possible.” N.M. Stat. Ann. § 40-11A-106. Thus, we look to
the methods for establishing paternity.
Under the UPA, the father-child relationship is established between a man and a child
by:
(1) an unrebutted presumption of the man’s paternity of the child pursuant to the
UPA;
(2) the man’s effective acknowledgment of paternity;
(3) an adjudication of the man’s paternity; or
(4) the man’s consent to assisted reproduction by a woman that resulted in the child’s
birth.
N.M. Stat. Ann. § 40-11A-201(B). Of these four methods, the presumption of paternity
is most applicable to the present matter. Thus, we consider whether New Mexico law
has applied a presumption of paternity in the context of a same-sex relationship to
find a woman to be a child’s presumptive mother.
Under the UPA, a man is presumed to be the child’s father if:
(1) he and the child’s mother are married to each other and the child is born during
the marriage;
(2) he and the child’s mother were married to each other and the child is born within
300 days after termination of the marriage;
(3) before the child’s birth, he and the child’s mother married each other in apparent
compliance with the law, even if the attempted marriage is or could be declared invalid,
and the child is born during the invalid marriage or within 300 days after its termination;
(4) after the child’s birth, he and the child’s mother married each other in apparent
compliance with the law, whether or not the marriage is or could be declared invalid,
and he voluntarily asserted his paternity of the child, and (a) the assertion is in
a valid acknowledgment of paternity, or (b) he agreed to be and is named on the child’s
birth certificate, or (c) he promised in a record to support the child as his own;
or
(5) for the first two years of the child’s life, he resided in the same household
with the child and openly held out the child as his own.
N.M. Stat. Ann. § 40-11A-204(A). Of these five methods, the first method is most applicable
to the present situation. We therefore next analyze whether the number holder is presumed
to be claimant’s mother under section 40-11A-204(A)(1) of New Mexico’s UPA because
she is legally married to claimant’s biological mother (M~), and claimant was born
during their marriage.
New Mexico Law Recognizes a Presumption of Parentage to a Non-biological Mother in
a Valid Same-Sex Marriage
Here, we find that the number holder is presumed to be claimant’s mother under section
40-11A-204(A)(1) of New Mexico’s UPA because she was married to claimant’s biological
mother (M~), and claimant was born during their marriage. See N.M. Stat. Ann. § 40-11A-204(A)(1). As noted, although section 40-11A-204 refers to
the presumption of a man’s paternity, the UPA also states that “[p]rovisions of [New
Mexico’s UPA] relating to determination of paternity apply to determinations of maternity
insofar as possible.” N.M. Stat. Ann. § 40-11A-106. Moreover, in a 2012 decision,
the New Mexico Supreme Court expressly recognized that the UPA’s presumptions of parentage
apply in the context of same-sex relationships. See Chatterjee v. King, 280 P.3d 283, 285-286 (N.M. 2012) (interpreting a prior version of the UPA in the
context of a same-sex relationship to determine the legal relationship between the
non-biological partner and her partner’s adopted child, and applying the UPA’s holding-out
provision for the presumption of paternity, which is similar to the provision now
contained in section 40-11A-204(A)(5)).
The Chatterjee case involved two women, Chatterjee and King, who were in a long-term committed relationship
(not a legal same-sex marriage), during which time King adopted a child from Russia.
See Chatterjee, 280 P.3d at 284. Chatterjee supported King and the child financially, lived together
with King and the child, and co-parented the child with King for several years. See id. When Chatterjee and King ended their relationship, King moved to another state with
the child and sought to prevent Chatterjee from having any contact with the child.
See id. Chatterjee filed a petition in a New Mexico district court to establish her parentage
of the child under New Mexico’s UPA so that she would have standing to seek joint
custody and timesharing of the child. See id. After the New Mexico district court and court of appeals ruled that she could not
establish parentage because she was neither the child’s biological or adoptive parent,
Chatterjee appealed to the New Mexico Supreme Court. See id. at 285.
The New Mexico Supreme Court held that the presumption in New Mexico’s UPA that a
man is the father of a minor child he openly holds out as own also applies to a woman
who openly holds a child out as her own; the fact that Chatterjee was not the child’s
biological or adoptive mother did not preclude her from establishing that she was
the child’s mother within meaning of New Mexico’s UPA; and that Chatterjee had standing
as an interested party to establish parentage under New Mexico’s UPA. See id. at 285-286. In so holding, the New Mexico Supreme Court found that (1) the plain
language of section 40-11-21 (the predecessor to the current section 40-11A-106) requires
courts to apply provisions relating to the father-child relationship to women to determine
the mother-child relationship when it is practicable to do so, and this includes the
holding out provision establishing a presumption of parentage; (2) commentary by drafters
of the UPA supports application of the provisions relating to paternity to determinations
of maternity; (3) this holding is consistent with how other courts in other jurisdictions
(including California, Colorado, and Oregon) interpreted their UPAs, which have provisions
that are similar to the New Mexico UPA; and (4) New Mexico’s public policy is to encourage
the support of children. See id. The Court stated that “[c]onsistent with the underlying policy-based rationale of
New Mexico UPA that equality in child welfare requires laws that achieve equality
in parentage, a child’s need for love and support is no less critical simply because
her second parent also happens to be a woman.” Id. at 292. The Court found that it “is against public policy to deny parental rights
and responsibilities based solely on the sex of either or both of the parents.” Id. at 293. The Court concluded that “the Legislature intended that [the holding out provision
for a presumption of paternity] be applied to a woman who is seeking to establish
a natural parent and child relationship with a child whom she has held out as her
natural child from the moment the child came into the lives of both the adoptive mother
and the presumptive mother.” Id. Therefore, the New Mexico Supreme Court held that under New Mexico law, a child can
have two legal parents of the same sex, and an individual can be a child’s parent
even though he or she has no biological or adoptive relationship to the child. See id. at 285-286; see also Griego v. Oliver, 316 P.3d 865, 871 (N.M. 2013) (holding that same-sex marriage is legal in New Mexico,
and citing Chatterjee and N.M. Stat. Ann. § 32A-5-11 before noting that “New Mexico law recognizes the
right of same-gender couples to raise children,” and later citing Chatterjee and noting that “[t]his Court has held same-gender couples have custody rights to
children under the New Mexico [UPA]”).
Thus, New Mexico law permits and requires application of the presumptions of paternity
set forth in section 40-11A-204 of New Mexico’s UPA to determine whether a presumptive
mother-child relationship exists between the number holder and claimant. As noted,
section 40-11A-204(A)(1) of the UPA provides that “a man is presumed to be the father
of a child if he and the mother of the child are married to each other and the child
is born during the marriage.” N.M. Stat. Ann. § 40-11A-204(A)(1). Here, M~ and the
number holder were married on February XX, 2011, in New Hampshire in a same-sex marriage.
M~ gave birth to claimant on December XX, 2011, in New Mexico, during the number holder
and M~’s same-sex marriage. Claimant’s New Mexico birth certificate lists the number
holder as his “Father or Parent One” and M~ as his “Mother or Parent Two.” Thus, we
next consider whether their same-sex marriage was validly celebrated in order to determine
whether this presumption of parentage applies to establish a parent-child relationship
between the number holder and claimant.
The agency’s POMS instructs that all states must permit same-sex marriage and recognize
valid same-sex marriages from other states. See POMS GN 00210.003(A). Therefore, we are to consider whether the New Hampshire same-sex marriage was
validly celebrated. See id. New Hampshire began permitting same-sex marriages effective January 1, 2010. See N.H. Rev. Stat. Ann. §§ 457:1-a, 457:46. The evidence provided with this request includes
a certified copy of a State of New Hampshire Certificate of Marriage showing that
the number holder and M~ participated in a marriage ceremony C~ performed on February
XX, 2011, in New Hampshire. See N.H. Rev. Stat. § 457:22 (marriage license application required), § 457:26 (marriage
license required before the solemnized marriage ceremony), § 457:31 (solemnized marriage
ceremony by appropriate official required). A certified copy of a marriage record
“shall be received in all courts and places as evidence of the fact of the marriage.”
N.H. Rev. Stat. § 457:38; see also 20 C.F.R. § 404.725 (certified copy of a marriage record is preferred evidence of
ceremonial marriage).[2] Therefore, M~ and the number holder’s marriage in New Hampshire was validly celebrated
on February XX, 2011. See POMS GN 00210.003(B).
In sum, the evidence provided establishes that M~ and the number holder’s same-sex
marriage is valid under New Hampshire law. See POMS GN 00210.003(B). Thus, the number holder is presumed to be claimant’s mother under section 40-11A-204(A)(1)
of New Mexico’s UPA because she is legally married to M~, claimant’s biological mother,
and claimant was born during their marriage.[3] See N.M. Stat. Ann. § 40-11A-204(A)(1).[4] Because a parent-child relationship is established between the number holder and
claimant under New Mexico’s UPA, a parent-child relationship is established for purposes
of intestate succession under New Mexico’s UPC. See N.M. Stat. Ann. § 40-11A-203 (a parent-child relationship established under the UPA
applies for all purposes). Therefore, claimant is the number holder’s natural child
under the Act’s state inheritance law provision. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1).
CONCLUSION
It is our opinion that claimant is the number holder’s child for purposes of his eligibility
to child’s insurance benefits under the Act on the number holder’s record because
he would be able to inherit from the number holder under New Mexico’s intestate succession
laws.
Michael McGaughran
Regional Chief Counsel
By: Shalyn Timmons
Assistant Regional Counsel