20 CFR 404.1101
R and W lived together in an alleged marital relationship without ceremonial solemnization in the State of Guanajuato, Mexico. Five children were born of the relationship. R is shown as the father on each of the children's birth certificates and each child is named therein as R's child. These documents were signed by R. r, a citizen of Mexico, died fully insured while domiciled in Guanajuato in 1961. In 1962 W filed an application for mother's insurance benefits, as the alleged widow of R, and an application for child's benefits on behalf of the children. Following the disallowance of her application, W requested the Appeals Council to review the hearing examiner's adverse decision.
Section 216(h)(1)(A) of the Social Security Act, as amended and as pertinent here, provides in effect that an applicant is the widow of a deceased individual who was domiciled outside the United States at the time of his death if the courts of the District of Columbia would find that such applicant and such individual were validly married. This section further provides that even if not validly married, an applicant will be deemed to be the widow if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a widow of such individual.
Under section 216(h)(2)(A) of the Act, an applicant is the child of a deceased individual who was not domiciled in any State at the time of his death, if such applicant would have the status of a child of the individual for the purpose of distribution of the individual's intestate personal property under the laws of intestate succession of the District of Columbia. Section 216(h)(3)(C)(i)(1) of the Act, added by the 1965 amendments to the Act, effective September 1965, provides in pertinent part that an applicant is deemed to be the child of an insured worker if such worker acknowledged in acknowledge in writing that the applicant was his child.
The question thus presented is whether W and her children qualify as "widow" and "child" of the deceased worker within the meaning of section 216(h) of the Act, as amended.
Since R was domiciled in Guanajuato, Mexico when he died, the applicant has the status of widow of the worker for benefit purposes if (1) the courts of the District of Columbia would find that the worker and the applicant were validly married, or (2) the applicant would have the same status as the worker's widow in determining the devolution of his intestate personal property under the law of intestate succession of the District of Columbia. Under Article 15 of the (Guanajuato) Law on Family Relations of 1918, which law continues in effect, "Marriage must be celebrated before the officials provided by law and with all the formalities required thereby." Under that law, a purported marriage which does not comply with those provisions has no legal effect. The courts of the District of Columbia will not recognize a nonceremonial marriage contracted in another jurisdiction if marriage cannot be contracted in another jurisdiction if marriage cannot be contracted in that form in the other jurisdiction. R and W were never ceremonially married and their nonceremonial union would not be recognized as a marriage under the law of Guanajuato. Therefore, the courts of the District would not find that W was validly married to R. Moreover, since under the law of the District only a valid marriage gives rise to status as a spouse for inheritance purposes, W would not have the same status as a widow to take R's intestate personal property. Accordingly, W does not have status as R's widow for benefit purposes.
Under the law of Guanajuato the children, born out of wedlock, are the "natural children" of the deceased worker, R, but not his legitimate children. The relationship to him as such is established by R's acknowledgment of them on their birth certificates, made in connection with the registration of their births in the civil registry. Articles 93 and 193, Civil Code of Guanajuato. Under the law of Guanajuato, these children, although not legitimate, would have the right to inherit from R, their natural father, where, as here, he left no legitimate children. Article 3592, Civil Code of Guanajuato.
Under the laws of intestate succession of the District of Columbia, only a legitimate child has the status of "child" relative to inheriting the intestate personal property of his natural father. Blethyn v. Bidder, 80 F. Supp. 962 (D.C. 1948). In determining whether or not a child is legitimate at birth for this purpose the courts of the District of Columbia would refer to the law of the jurisdiction of the father's domicile at the time of the birth of the child Restatement, Conflict of Laws, section 138. In this case, that is the Mexican State of Guanajuato. Since by such reference the children here involved would not be found to be legitimate, they do not have the requisite status for inheriting R's intestate personal property under District of Columbia law, even though they had such right of inheritance under the law of Guanajuato, Restatement, Conflict of Laws, section 120.
Since the children under the law in effect prior to July 30, 1965 (the date of enactment of the 1965 amendments), did not have status as R's children for benefit purposes, they were not entitled to child's insurance benefits. However, the requirement of section 216(h)(3)(C)(i)(1) of the Act is satisfied here. The birth certificates pertaining to the minor children show R as father and were signed by R during his lifetime. This constitutes evidence of a written acknowledgment of paternity permitting a finding that they have status as children of the worker.
Accordingly, the Appeals Council held that W is not entitled to mother's insurance benefits since she does not qualify as R's "widow" for such purposes; that the child-claimants did not have the status of "child" of the deceased worker and were not entitled to child's insurance benefits prior to the 1965 amendments to the Social Security Act, but are entitled beginning the first month for which payment can be made under the Act as amended in 1965.
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