Martin on Social Security Treatise

Martin on Social Security

Part 2 – Topics

Entitlement as Child

§ J 000. Entitlement as Child – In General

There are several different ways an individual can qualify as child of the insured for benefit eligibility purposes:

(a) By being treated as a child by the intestate succession law applying to personal property in the relevant state (Most children born to or of an insured or adopted by an insured qualify by this route.);

(b) By being the child of an invalid marriage that involved a marriage ceremony which failed to establish a valid marriage because of a procedural flaw or the existence of a prior undissolved marriage;

(c) By being a child born to or of the insured, not qualifying under (a) or (b), if the insured has acknowledged the child in writing or there is a court order of parentage or support; or

(d) By establishing both the fact of parentage (with satisfactory evidence) and that the insured was either living with or contributing to the support of the child.

Most children who qualify under (a), (b), (c), or (d) need prove no further connection to the insured. The statute requires that to be eligible a child must be “dependent” on the insured, but then establishes a conclusive presumption of “dependency” that applies in most cases. If the child is eligible under (a) as the adopted or the “legitimate” child of the insured, the child is deemed “dependent.” If the child fails to qualify under (a) but qualifies under either (b) or (c), the child is deemed “legitimate” and thus deemed “dependent.” Test (d) incorporates a dependency requirement explicitly. If it is satisfied there is no further one.

In addition to these rules there are special provisions for stepchildren and grandchildren that allow them to qualify in some circumstances without meeting any of the above tests.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 100. Child’s Status – State Law – In General

For children the Act refers to the law “applied in determining the devolution of intestate personal property by the courts of the [relevant] State.” On certain other questions of child status, the Act’s reference is less specific. For example, the Act provides benefits for stepchildren and for adopted children. These benefits are not explicitly tied to state intestate succession law although the phrase “legally adopted” contains a clear reference to state law. Consequently, if the state does not recognize “equitable adoption,” that is, adoption arising out of intention and action, but insists that there be a judicial proceeding for an adoption to have legal effect, that carries over to a potential Social Security claim as well.

In Trimble v. Gordon, 430 U.S. 762 (1977), the Supreme Court held unconstitutional a state intestacy law that allowed children born outside marriage to inherit from their mother (but not their father) while providing that children born within a valid marriage could inherit from both parents. Through its effect on state intestacy laws, Trimble has had a major effect on Social Security child benefit entitlement.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 110. Child’s Status – State Law – Focus on State Intestacy Law

For children the Act refers only to the law “applied in determining the devolution of intestate personal property by the courts of the [relevant] State.” Although distinctions may arise in other legal settings, “applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.” Thus, for example the question about a child of a worker who died domiciled in Texas is whether the child can inherit. If the child is an acknowledged child born outside of marriage, the question is whether such children inherit under Texas law. In Moorehead v. Bowen, 784 F.2d 978, the Ninth Circuit held that under Texas intestate succession law only “legitimate” children inherited person property. It also held, though, that Texas courts would look to the law of the state where all the relevant acts bearing on status took place on the issue of legitimacy. Since that state was California which allows children to take as legitimate if the “father receives the child into his home and openly holds ... [it] out as his natural child,” the Ninth Circuit went on to hold the child eligible.

Social Security Ruling, SSR No. 06-2p, addresses the situation in which one child qualifies for benefits on a ground other than state intestacy law and a second child, who presumably does not qualify on that ground, is established to be his or her sibling by DNA testing.

In AL, FL, and GA an acquiescence ruling (AR No. 97-3(11)) implements the Eleventh Circuit’s ruling in Daniels v. Sullivan, 979 F.2d 1516 (11th Cir. 1992) that to apply a state intestacy requirement that paternity be established during the lifetime of the father violates equal protection if applied to create an insurmountable barrier to Social Security child benefits.

Rev. 11/07

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 120. Child’s Status – State Law – Effect of State Law Presumptions

Since the reference in the Act to state law is a reference to what the courts of a state would find it incorporates not only “substantive law” but state law presumptions that bear on the resolution of factual disputes important to a child’s status. For example, if state law presumes that a child born to a married couple during the marriage is the child of both marriage partners that presumption will operate in a dispute over entitlement to Social Security child benefits.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 200. Child’s Status – Social Security Act Recognition of Child Who Fails to Meet State Law Tests – In General

The Act extends child benefits to several categories of children who do not meet the state law test:

(a) children born of a marriage that is invalid due to a procedural flaw in the marriage ceremony or due to a prior undissolved marriage

(b) children born to or of the insured, not qualifying under state law, if the insured has acknowledged the child in writing or is subject to a court order of parentage or support.

Finally, the Act provides for child benefits in cases where the fact of parentage is established to the satisfaction of the Agency and the insured was either living with or contributing to the support of the child at the critical time for entitlement.

In Mathews v. Lucas, 427 U.S. 495 (1976), the Supreme Court upheld the Act’s provisions dealing with proof of dependency by children born outside of marriage. The decision, which provides important interpretation of those provisions, concludes that requiring proof of financial dependency of those children who cannot establish a purported marriage or written acknowledgment of parenthood or a court order does not violate the equal protection component of the Due Process clause of the 5th Amendment.

Rev. 11/07

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 210. Child’s Status – Social Security Act Recognition of Child Who Fails to Meet State Law Tests – Written Acknowledgment

A child born outside of marriage to the insured worker who does not qualify on the basis of state law will, nonetheless, be eligible for child benefits on the worker’s account if the worker has acknowledged in writing that the child is his son or daughter. The writing need not be in any particular form, letters or other informal documents are sufficient. A Social Security Ruling, (SSR No. 72-32), specifically provides that the document does not need the worker’s signature.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 220. Child’s Status – Social Security Act Recognition of Child Who Fails to Meet State Law Tests – Living With or Supported by Parent

A child of the insured worker, born outside of marriage, who does not qualify on the basis of state law will, nonetheless, be eligible for child benefits on the worker’s account if there is adequate proof of the parent-child relationship and child is living with or supported by the worker at the time of the child’s application for benefits (or if the worker is dead and the child is applying for survivors benefits, at the time of the worker’s death). The Act and regulations spell out the type of evidence that will establish that the child was living with or supported by the insured worker. When the insured worker has meager resources, issues of the amount and regularity of support necessary to meet this test can prove especially troublesome. The Agency’s position is that regular and substantial contributions are required.

In DE, NJ, PA, and VI, an acquiescence ruling (AR 86-13) implements the Third Circuit’s ruling in McNeal v. Schweiker, 711 F.2d 18 (3d Cir. 1983) that the Agency must consider the worker’s and household’s income when evaluating the amount of the worker’s contributions to support of the child.

In MD, NC, SC, VA, and WV, an acquiescence ruling (AR 86-14) implements the Fourth Circuit’s ruling in Jones v. Harris, 629 F.2d 334 (4th Cir. 1980) that the Agency must consider the worker’s and household’s income when evaluating the amount of the worker’s contributions to support of the child.

In KY, MI, OH, and TN, an acquiescence ruling (AR 86-15) implements the Sixth Circuit’s ruling in Childress v. Secretary, 679 F.2d 623 (6th Cir. 1982) and earlier decisions that the Agency must consider the worker’s and household’s income when evaluating the amount of the worker’s contributions to support of the child.

In CO, KS, NM, OK, UT, and WY, an acquiescense ruling (AR 94-1) implements the Tenth Circuit’s ruling in Wolfe v. Sullivan, 988 F.2d 1025 (10th Cir. 1993) that the proper test for determining whether the father was “contributing to the support” of a posthumous child is whether the father’s support was commensurate with the needs of the unborn child at the time of the father’s death and that the economic circumstances of the worker must be taken into account when making such a determination.

Rev. 10/94

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 230. Child’s Status – Social Security Act Recognition of Child Who Fails to Meet State Law Tests – Proof of Parentage and Actual Dependency

A child of the insured worker, born outside of marriage, who does not qualify on the basis of state law will, nonetheless, be eligible for child benefits on the worker’s account if there is adequate proof of the parent-child relationship and child is living with or supported by the worker at the time of the child’s application for benefits (or if the worker is dead and the child is applying for survivors benefits, at the time of the worker’s death). Since this child status test is independent of state law, state law standards of proof of parentage do not apply. The Act provides that children qualifying on the basis of this test must establish parentage to the satisfaction of the Agency. In Jones v. Chater, 101 F.3d 509 (7th Cir. 1996) the Seventh Circuit concluded that this set the burden of proof at the “preponderance of evidence” level.

rev. 3/97

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 240. Child’s Status – Social Security Act Recognition of Child Who Fails to Meet State Law Tests – Court Order or Decree

A child born outside of marriage to the insured worker who does not qualify on the basis of state law will, nonetheless, be eligible for child benefits on the worker’s account if the worker was ordered by a court to support the child based on a finding that it was his son or daughter or if a court, without ordering support, decreed the worker to be the child’s parent.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 250. Child’s Status – Social Security Act Recognition of Child Who Fails to Meet State Law Tests – Child of a Defective Ceremonial Marriage

A child born to a parent who, even though not legally married, did participate in a marriage ceremony which was invalid because of a prior undissolved marriage or for some other reason will still be eligible for child benefits on the working parent’s account despite state law disqualification.

Unlike the comparable provision applicable to spouse benefit claimants, this test does not require that either of the parents participating in the ceremony hold a good faith belief that it will establish a valid marriage.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 300. Special Issues With Posthumous Child

A child born after the worker’s death can pose special problems of interpretation or proof. If the child is born within a marriage or otherwise qualifies on the basis of state law the timing poses little difficulty. However in cases where eligibility depends on the child’s living with or being supported by the worker, the test may be difficult if not impossible to meet. The provisions for written acknowledgment or eligibility based on a court order can also prove troublesome in such cases.

In CT, NY, and VT an acquiescence ruling (AR 86-21) implements the Second Circuit’s ruling in Adams v. Weinberger, 521 F.2d 656 (2d Cir. 1975) that the support test is met when the worker’s contributions to an unborn child were commensurate with its needs at the time of the worker’s death.

In MD, NC, SC, VA, and WV an acquiescence ruling (AR 86-22) implements the Fourth Circuit’s ruling in Parsons v. HHS, 762 F.2d 1188 (4th Cir. 1985) that the support test is met when the worker’s contributions to an unborn child were commensurate with its needs at the time of the worker’s death.

In AK, AZ, CA, HI, ID, MT, NV, OR, WA, and GU an acquiescence ruling (AR 86-23) implements the Ninth Circuit’s ruling in Doran v. Schweiker, 681 F.2d 605 (9th Cir. 1982) that the support test is met when the worker’s contributions to an unborn child were commensurate with its needs at the time of the worker’s death.

Several recent cases have wrestled with the question whether a child conceived posthumously, by artificial insemination, can qualify for surviving child benefits. See, e.g., Woodward v. Commissioner of Social Security, 435 Mass. 536 (2002).

In AK, AZ, CA, HI, ID, MT, NV, OR, WA, and GU an acquiescence ruling (AR 05-1) implements the Ninth Circuit’s ruling in Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004) that so long as state law treats posthumously conceived children as legitimate children of the deceased insured they are eligible for survivors benefits.

Rev. 11/05

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 400. Special Issues With Legally Adopted Child

Adoption can be a basis for receiving child benefits. At least one category of adopted children, however, must meet a more stringent set of requirements than children who are born to or of the insured. These are older children (i.e. children 18 and over qualifying for benefits by virtue of disability) whose adoption did not come until after the insured had begun old-age or disability benefits. Unless they fall within certain categories (such as stepchildren or some grandchildren) they must establish actual financial dependence on the insured in the year prior to their adoption.

Legally adopted children who are claiming survivors benefits do not have to meet an actual dependency test. Children adopted by a grandparent or the spouse of a deceased are also exempt from this test under some circumstances. And children adopted by a natural parent, a stepparent or someone on whom they were dependent prior to the adoption need not meet the test.

A child adopted by the surviving spouse of a deceased worker can qualify for surviving child benefits if the adoption proceedings were begun before the worker’s death or the adoption was completed within 2 years after that death. In addition, the child must have been living in the worker’s home or have received 1/2 support from the worker in the year before the worker’s death.

Legal adoption can also undercut child benefits in the case where a child is adopted by someone other than the parent on whose account he or she might otherwise be able to claim benefits. If that adoption occurs during the insured’s lifetime, dependence on the birth parent is no longer presumed but must be established by proof of support by the insured birth parent or by proof that the child was living with the birth parent.

In CT, NY, and VT, an acquiescence ruling (AR 86-16) has implemented the Second Circuit’s ruling in Damon v. Secretary, 557 F.2d 31 (2d Cir. 1977) that payments for foster parents will be treated as income in determining whether the worker has met the support requirement associated with adoption.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 500. Claims Based on Equitable Adoption of Child

Some states define children whom an individual agreed to adopt but failed to as “equitably adopted,” treating them as children for purposes of intestate succession. Children who have such status under such state law are eligible for Social Security. They must, however, establish dependence on the insured at one of several critical times. Those times are the insured’s death or disability or eligibility for old-age benefits or their own application. In the case of a living insured they must also establish that equitable adoption occurred before the insured’s disability or eligibility for old-age insurance benefits.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 600. Special Child Issues With Stepchildren

The Act provides benefits for stepchildren without explicitly tying this status to intestate succession law. Some courts have held, however, that the status derives from state law so that a liberal state definition of stepchild may furnish a basis for benefits.

A child who would not otherwise qualify as a stepchild will, nonetheless, be eligible for child benefits on the worker’s account if the worker and the child’s other parent, even though not legally married, did participate in a marriage ceremony which was invalid because of a prior undissolved marriage or for some other reason. Unlike the comparable provision applicable to spouse benefit claimants, this test does not require that either of the parents participating in this ceremony hold a good faith belief that it will establish a valid marriage.

In AK, AZ, CA, HI, ID, MT, NV, OR, WA, and GU, an acquiescence ruling (AR 86-12) implements the Ninth Circuit’s ruling in Hutcheson v. Califano, 638 F.2d 96 (9th Cir. 1981) that “stepchild” should be defined by the appropriate state law.

Stepchildren are not eligible for benefits merely by virtue of that status. They must establish dependency on the insured worker at the time of the worker’s death or, if the worker is alive, the time of their benefit application. Prior to a 1996 amendment, living with the insured worker was one way of satisfying that requirement. As of June 1996, dependency can only be established by proof that the insured was contributing one-half the child’s support.

Prior to the 1996 amendment, once benefits for a stepchild had begun they did not depend on the marriage between the child’s natural parent and the stepparent continuing. Under the Act, as amended, if the two divorce benefits to the child on the account of the stepparent will cease the month after the divorce becomes final.

Rev. 6/96

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 700. Child Claims Involving Grandparents – In General

An individual who is actually dependent on his or her grandparent at the time of the grandparent’s death, disability, or eligibility for old-age insurance benefits can claim child benefits on the grandparent’s account so long as the grandparent’s child (the individual’s parent) is either dead or disabled at that point. Actual dependence on the grandparent is established by proof of living with the grandparent or receiving 1/2 support at the critical time.

The Agency’s position that provisions extending child benefits to grandchildren do not reach great-grandchildren or step-great-grandchildren is set out in Social Security Ruling SSR No. 73-41.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 710. Child Claims Involving Grandparents – Special Issues With Child Adopted by Grandparent

An individual who is legally adopted by his or her grandparent need not meet an actually dependency test if the adoption occurred prior to the grandparent’s death, disability, or eligibility for old-age insurance benefits. Where the adoption occurs subsequent to the grandparent’s disability or old-age insurance eligibility, the individual must meet the same requirements as other adopted children.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 720. Child Claims Involving Grandparents – Special Issues With Stepgrandchild

An individual who is dependent on his or her stepgrandparent under circumstances that allow a child to claim on the account of a grandparent (whether or not legally adopted) is entitled to child benefits.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 800. Older Child Eligible While a Full-Time Student

Ordinarily child benefit eligibility ends at age 18. A child who is a full-time elementary or secondary school student remains eligible for an additional year, to age 19, so long as he or she remains in school.

Regulations provide that in some situations scheduled attendance of fewer than 20 hours a week can constitute full-time attendance.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ J 900. Effect of Child’s Marriage

To be eligible for child benefits an individual must be unmarried. Marriage, at any age, will cause child benefits to end. One important exception exists for individuals who are eligible for child benefits because of disability. Their marriage to other individuals eligible for Social Security benefits will not end child benefits.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]