SSR 67-60

A worker and a woman with whom he lived for one year separated and did not live together again. Shortly after separation, the woman was admitted to a hospital by the worker as his "wife" for delivery of a child. The worker was named as "father" on the child's birth certificate and he voluntarily contributed monthly to the child's support until July 1965 when he died domiciled in Illinois. An application for child's insurance benefits was filed on the child's behalf in July 1965. Held, there was sufficient evidence to establish the biological paternity of the worker within the meaning of section 216(h)(3)(C)(ii) of the Act and since the worker was contributing to the child's support at the time of his death, the child is deemed to be the worker's "child" and is entitled to child's insurance benefits on his earnings record, other requirements having been met.

The worker, R, and a woman, W, commenced living together in 1958 and lived together for about one year. They did not intermarry. A child, C, was born on January 16, 1959, and, according to hospital records, W was admitted to the hospital by R, her "husband." R was a regular visitor to the hospital and paid all expenses in connection with C's birth. The birth certificate showed R as the father. R, who was fully insured under the Social Security Act, died on July 15, 1965, domiciled in Illinois.

W filed application in July 1965 on behalf of C for child's insurance benefits based upon R's earnings record. She stated that she and R had not been living together at the time of C's birth and that R had never lived with C. R did not acknowledge paternity of C in writing nor was C ever legitimated in accordance with Illinois law so as to become eligible for inheritance of R's intestate personal property.[1] However, R had regularly contributed substantial amounts to C's support and these payments continued until R's death.

The question thus presented is whether C, who had not been legitimated and thus was unable to inherit R's intestate personalty under Illinois law, may nevertheless be deemed to have the status of R's child for purposes of entitlement to child's insurance benefits.

Section 202(d)(1) of the Social Security Act provides in pertinent part that a child (as defined in section 216(e) of the Act) of an insured deceased worker may upon filing application become entitled to child's insurance benefits if (among other requirements not here at issue) he was dependent upon the worker at the time of the worker's death.

Section 216(e), in pertinent part, defines the term "child" as the worker's child, legally adopted child, or under certain conditions, a stepchild. Section 216(h)(2)(A) provides that in determining whether an applicant is the child of a deceased insured worker, the Secretary of Health, Education, and Welfare shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the worker was domiciled at the time of his death. An applicant who, according to such law, would have the same status relative to taking intestate personal property as a child shall be deemed such. Section 216(h)(2)(B) provides, in pertinent part, that where a child does not qualify under section 216(h)(2)(A) he may nevertheless be deemed the worker's child where the child's mother and the worker went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment of the kind defined in section 216(h)(1)(B) of the Act, would have been a valid marriage.

In this case, there is no evidence that C was legitimated in accordance with Illinois law, and therefore C does not have the status of R's child for inheritance purposes under applicable State law; thus, he cannot be deemed R's "child" under section 216(h)(2)(A) of the Act. Moreover, since C's parents did not go through a marriage ceremony, he cannot be deemed R's "child" under section 216(h)(2)(B) of the Act.

However, section 216(h)(3) of the Act, added by the Social Security Amendments of 1965 (P.L. 89-97), provides that a child who does not qualify as the worker's child under section 216(h)(2)(A) or (B) may nevertheless become entitled to benefits as a male worker's child if he meets certain requirements. Section 216(h)(3) provides in pertinent part:

(3) An applicant who is the son or daughter of a fully * * * insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) [section 216(h)(2)], shall nevertheless be deemed to be the child of such insured individual if:

* * * * *

(C) in the case of a deceased individual --

* * * * *

(ii) Such insured individual is shown by evidence satisfactory to the Secretary to have been the father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.

In addition, section 202(d)(3) of the Act, as amended in 1965, provides in pertinent part, that a child deemed to be a child of a fully or currently insured worker under section 216(h)(3) shall be deemed a legitimate child for dependency purposes at the pertinent time.

The provisions of sections 202(d)(3) and 216(h)(3) as amended in 1965 are applicable with respect to monthly benefits beginning with September 1965 based on applications filed in or after July 1965.

There was evidence submitted by W which strongly indicates that R was the biological father of C, e.g., C's birth certificate, the hospital records, and the fact that R admitted W to the hospital as his "wife," paid all expenses in connection with C's birth, and voluntarily made regular payments toward C's support. This evidence of paternity, and the established fact that at the time of his death R was contributing to C's support, satisfy the requirements of section 216(h)(3)(C)(ii) of the Act. C, therefore, is deemed to be R's "child," and, under section 202(d)(3) of the Act, he is deemed dependent upon R.

Accordingly, it is held that on the basis of his July 1965 application, C is entitled to child's insurance benefits on R's earnings record, beginning with September 1965.

[1] Under Illinois law an illegitimate child cannot inherit from his natural father. Such child can be legitimated only through the marriage of his natural parents and recognition of his paternity by his father. Smith-Hurd Annotated, ch. 3, § 12, as amended in 1961, Laws 1961, p. 481, § 1.

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