20 CFR 404.1101 and 404.1109

SSR 66-46

Where the worker and an unmarried woman lived in the same household in Puerto Rico as man and wife for over 15 years prior to the worker's death, and, while the worker never formally acknowledged the child born of such relationship as his child, the evidence established that the worker always treated the child as his and reared and supported the child as his child, held, since under Puerto Rico law the child may be considered to have been "voluntarily recognized" by the worker and thus has inheritance rights in the worker's estate, the child qualifies as "child" of the worker for social security purposes under section 216(h)(2)(A) of the Act.

R, a fully insured worker, and E, an unmarried woman, began living together as man and wife in Puerto Rico in 1949. While no formal ceremony of marriage was ever conducted, the couple continued to live together in Puerto Rico until R's death in 1963. He was survived by E and a child, C, born in 1952. E filed an application on behalf of C for child's insurance benefits on R's earnings record, and presented statements by various individuals indicating that R had always considered C as his child and treated him as such. The evidence further showed that R had fully supported his child, sent him to school, and spoke of C in public as his son.

Under section 202(d) of the Social Security Act, as pertinent here, every "child" (as defined in section 216(e) of the Act) of an insured worker, who meets other requirements, is entitled to child's insurance benefits. Section 216(e) provides, in pertinent part, that the term "child" means (1) the child or legally adopted child of an individual, and (2) a stepchild where such relationship has existed at least 1 year prior to the worker's death.

Section 216(h)(2)(A) of the Act provides that in determining whether a claimant is the child of a deceased insured individual the law applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death shall be applied. Section 210(h) of the Act, as in effect since January 1, 1951, provides that the term "State" includes the Commonwealth of Puerto Rico. In this instance R died domiciled in Puerto Rico; therefore, the laws of that Commonwealth are applicable.

The question thus presented is whether C has status as the "child" of R for purposes of inheriting R's intestate personal property under the law of Puerto Rico, as required for entitlement to child's insurance benefits. All other requirements were met.

On August 20, 1952, the Puerto Rican Legislative Assembly approved, with retroactive effect to July 25, 1952 (the date of adoption of a new Constitution), a statute providing that: "All children shall have with respect to their parents and with respect to the property left by the latter the same rights that correspond to legitimate children." (31 Laws of Puerto Rico Annotated, 441.) On June 27, 1963, the Supreme Court of Puerto Rico handed down an opinion of major importance incorporating the appeals in several cases, including Ocasio v. Diaz, No. 85, in which it interpreted the new provision and reversed a number of its prior decisions.

The court ruled, in effect, that from July 25, 1952, with respect to the legal status of children, there were no longer any distinctions based on the circumstances of their birth, i.e., that all children simply have the status of "children" of their parents to whom they are legally filiated and that, accordingly, all children have equal inheritance rights with respect to such parents. As to the children born out of wedlock, their filiation to their natural father, where possible, may be by "voluntary recognition" by the father or may be judicially compelled. The term "voluntary recognition," in light of the decision in Ocasio v. Diaz, supra, includes any act or deed, express or implied, by which the father (or his heirs) acknowledges or recognizes the child as his own. The "voluntary recognition" may have occurred either before or after July 25, 1952. Prior to this decision the Social Security Administration, on the basis of earlier decisions of that court, held that "voluntary recognition" of a child could occur only in the record of birth, a testament, or some other public document. While these documents may still be used as evidence, the new procedure is less formal.

The evidence in this case showed that R had always treated and considered C as his child and because of these acts, R was, among friends and neighbors, generally reputed to be the child's father. Such acts on the part of R were sufficient to constitute a "voluntary recognition" of paternity by R. Accordingly, it is held that at the time of R's death C had the status of R's child under the laws of Puerto Rico relative to taking intestate personal property, and therefore, C qualifies as R's child under section 216(h)(2)(A) of the Act, and is entitled to child's insurance benefits on R's earnings record.

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