SSR 73-2: SECTIONS 202(d)(3), 203(a)(3), and 216(h)(3) (42 U.S.C. 402(d)(3), 403(a)(3), and 416(h)(3)). -- RELATIONSHIP -- LEGITIMACY OF CHILD -- ACKNOWLEDGMENT UNDER STATE LAW -- CALIFORNIA

20 CFR 404.1101(c)(1) and 404.1109(c)

SSR 73-2

Where, under California Civil Code, the father of an illegitimate child by publicly acknowledging him as his own, receiving him as such, with the consent of his wife, if he is married, into his family, and otherwise treating him as if he were a legitimate child, thereby adopts him as such, thus conferring legitimate status upon child from birth, held, a child so legitimated by his father becomes the legitimate child of both his natural parents, and on basis of such status, may become entitled to child's insurance benefits equally with other surviving children on deceased mother's earnings record.

The worker, R, died domiciled in California in November 1970. She was survived, among others, by a child, C, born out of wedlock to her and X in February 1965. Although C's natural parents were never married to each other, pursuant to an arrangement between X and R, C has lived with and been supported by X since C was 16 months old.

Section 202(d)(3) of the Social Security Act provides, in pertinent part, that a child shall be deemed dependent upon his mother at the time of her death unless, at such time, the mother was not living with or contributing to the child's support and (A) the child is neither the legitimate nor adopted child of his mother, or (B) the child has been adopted by some other individual. For purposes of this section a child deemed to be a child of an insured worker pursuant to sections 216(h)(2)(B) or 216(h)(3) of the Act shall be deemed to be the legitimate child of such individual.

Although C, pursuant to section 255, California Probate Code, is entitled to inherit from his mother, he would not meet the dependency requirements of section 202(d)(3), supra, as an illegitimate child. Under California law, a child born out of wedlock who has not been legitimated is illegitimate with respect to his mother as well as to his father. Such child may nevertheless meet the entitlement requirements under section 216(h)(3) of the Act, but his residual benefits in this case would under section 203(a)(3) of the Act be reduced to zero because of the entitlement of three other children.

The question thus presented is whether the legitimation of C by X, his father, under the California statutes would make him the legitimate child of R, his mother, as well. As a legitimate child, C would be entitled to a co-equal share of the child's insurance benefits as a child of R.

Section 230 of the California Civil Code provides in part:

The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth . . .

The Supreme Court of California, in Estate of Garcia, 34 Cal. 2d 419, 210 P.2d 841 (1949), interpreted section 230 as follows:

A child who is 'deemed for all purposes legitimate' cannot be regarded as still illegitimate for some purposes, and a child who has become legitimate can no longer be regarded as an 'illegitimate child.'

Moreover, California district courts of appeal have consistently held that upon the legitimation of a child by his father under this section of the Civil Code the child becomes the legitimate child of both his natural parents. In re Navarro, 77 Cal. App. 2d 500, 175 P.2d 896 (1947); Strong v. Owens, 91 Cal. App. 2d 336, 205 P.2d 48 (1949); Donnally v. Blankenstein, 167 Cal. App. 2d 282, 334, P.2d 260 (1959).

Accordingly it is held that where section 230 of the California Civil Code has been fully complied with, legitimation of C by his natural father also legitimates him as the child of his deceased mother, and for purposes of social security benefits, C is entitled to share equally in the child's insurance benefits payable on account of his mother's death.

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