SSR 61-64. LEGITIMATION OF CHILD BY INTERMARRIAGE OF PARENTS

Where, under applicable Alabama law, an illegitimate child is legitimated by the intermarriage of the parents and recognition of the child by the father, held, the child qualifies as a child for purposes of entitlement to child's insurance benefits on the father's earnings record.

In October 1950, 10 months after C's birth, her mother W, married H, C's alleged father. H and W, at the time of their marriage and continuously afterward up to the time of H's death, were domiciled in Alabama. Except for occasional intervals spent with W and H when W was not working, C lived with her maternal grandmother. H died in August 1960. At the time of death, he and W had been separated for approximately a year. During that year, W and C had received no support from H. In September 1960, C's grandmother filed application on C's behalf for child's insurance benefits based on H's earnings record. As proof of the relationship between H and C, W filed a signed statement that H was the father of C. Additional evidence was submitted showing that, generally, H claimed C as a dependent child for income tax purposes. Insurance policies containing H's signature (witnessed by an agent of the insurance company) showed C as H's daughter and beneficiary. It was established that in conversations with his mother-in-law, his employer, and other persons, H had spoken of C as his daughter.

Section 202(d) of the Social Security Act provides, in pertinent part, that a child of an insured individual shall be entitled to child's insurance benefits if he meets certain requirements. Although C meets all other requirements for entitlement, it must be established that she is H's child and that she was dependent upon him at the time he died.

Section 216(h)(2)(A) of the Act provides, as pertinent here:

In determining whether an applicant is the child * * * of a fully or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual * * * was domiciled at the time of his death, * * *. Applicants who according to such law would have the same status relative to taking intestate personal property as a child * * * shall be deemed such.

The legitimate child of a worker is his child for purposes of entitlement to child's insurance benefits on his earnings record, subject to certain exceptions not applicable in the present case. The legitimacy of a child is determined by reference to applicable State law, in this case the law of Alabama.

Under Alabama law, a child born out of wedlock becomes the legitimate child of the father, and is considered to be legitimate from birth, if the parents intermarry and the father recognizes the child as his. Evidence in this case establishes that C is the natural child of H and W and was recognized by H as his child after his marriage to W. Therefore, C qualifies as H's legitimate child under Alabama law.

Even though H was not living with or contributing to the support of C, under section 202(d)(3), C is deemed to have been dependent upon H at the time of his death if she is his legitimate child and has not been adopted by some other individual. C meets these dependency requirements.

Accordingly, it is held that C is H's child and was dependent upon H at the time of his death, as required by the Act and is entitled to child's insurance benefits on H's earnings record.