SSR 68-54: SECTIONS 202(d)(1) and 216(h)(3)(C)(i)(I). -- RELATIONSHIP -- STATUS OF ILLEGITIMATE CHILD -- OUT-OF-COURT SETTLEMENT AS "ACKNOWLEDGMENT IN WRITING"

20 CFR 404.1101(d)

SSR 68-54

Where a worker signed an agreement with the mother of a child born out of wedlock, whereby he agreed to pay a specified sum of money to relieve himself "of any further liability or obligation by reason of his association with" the woman, held, such agreement does not constitute written acknowledgement of paternity of the child within the meaning of section 216(h)(3)(C)(i)(I) of the Social Security Act.

R, a fully insure worker, died in March 1966. Monthly insurance benefits were awarded to his widow, E, and to four surviving children born to R and E. In July 1966, a second woman, W, filed application as the mother of a child, C, born out of wedlock, which she alleged had been fathered by R. Her application indicated that while R was never decreed by a court to be C's father, nor had a court order ever been issued for support of the child, R had executed a written out-of-court agreement in June 1950. This agreement provided for payment of $2,200 in monthly installments, the final payment of which R made in 1961. The agreement further provided that upon final payment of the agreed sum, R was to be relieved "of any further liability or obligation by reason of his association with" the mother of C. No record of the transaction could be found in the juvenile court or the probate court records from 1950 through the date of R's death, nor was there found any other record of court proceedings between the parties.

Under the circumstances of this particular case, C, an illegitimate child, would not have inheritance rights in the intestate personal property of R under the appropriate State law, even assuming that it is established that R was his natural father. Moreover, no ceremonial marriage occurred between R and W. Accordingly, C cannot qualify as R's child under section 216(h)(2) of the Act.

Section 216(h)(3) of the Social Security Act provides in pertinent part that:

An applicant who is the son or daughter of a fully or currently 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:

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

(i) such insured individual --

(I) had acknowledged in writing that the applicant is his son or daughter,

(II) had been decreed by a court to be the father of the applicant, or

(III) had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter, and such acknowledgment, court decree, or court order was made before the death of such insured individual, or

(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.

W contended that the out-of-court agreement constituted an acknowledgment by R of his paternity of C. She contended that not only had R signed the agreement acknowledging his obligation to W, but he had contributed to the child's support pursuant to his agreement for a number of years.

On the other hand, E, the widow, alleged that R was neither the adoptive nor the biological father of C. She submitted an additional copy of the June 1950 agreement and stated that R had agreed to the settlement regarding paternity of the child only to avoid a family scandal and to relieve himself of any future obligation to the child.

The question thus to be resolved is whether R's actions in effecting a non-judicial settlement of W's claim constituted an "acknowledgment in writing" under section 216(h)(3)(C) of the Act, or whether one of the alternative requirements of section 216(h)(3)(C) is met, so that C may be entitled to child's insurance benefits on R's earnings record.

On the basis of the information submitted, there is no indication that R had stated in writing at any time that C was his child. The out-of-court settlement or agreement does not on its face constitute a written acknowledgment of paternity but rather implies that there was some kind of "association" between R and W and that, to avoid litigation, R agreed to out-of-court settlement of W's claim. An agreement to pay a fixed sum over a period of time in exchange for a release of further liability or obligation does not of itself constitute written acknowledgment of paternity of a child for section 216(h)(3) purposes. Moreover, there had been no decree by a court naming R as the father nor had he been ordered during his lifetime by a court to contribute to C's support because C was his child. Furthermore, there has been no additional evidence submitted to the Secretary which would show R to have been C's father and that he had been living with C or contributing to C's support at the time of his death.

Accordingly, it is held that since none of the requirements of section 216(h)(3)(C) are met, C is not R's "child" within the meaning of the Act and is not entitled to child's insurance benefits on R's earnings record.