20 CFR 404.325(a), 404.722 (c), and 404.1101(d)(3)

SSR 77-31

The deceased wage earner, while married to one woman, allegedly fathered two children by a second woman. He did not live with the second woman or her children but was a frequent visitor to their home. The wage earner never acknowledged these children in writing, was never decreed by a court to be their father, and was never ordered by a court to contribute to their support. during the year immediately preceding his death, he contributed a total of $100.00 toward the children's support. Contributions prior t that were in small amounts and infrequent. Held, the provision of section 216(h)(3)(C)(ii) of the Social Security Act, which requires that at the time of his death the wage earner must have been contributing to the support of the applicant for child's insurance benefits, will not be satisfied where the wage earner has not provided regular and substantial contributions for the support of the child.

The wage earner died December 20, 1975, and was survived by his lawful wife, A, and three children of that marriage. A applied for surviving child's insurance benefits on behalf of her three children.

A week later, M applied for child's insurance benefits on behalf of her two children stating that while she and the deceased had never been married, he was the father of both of her children, and at the time of his death was living not only with A, but also with M and her two children.

No question is raised about the entitlement of A's children since they are the lawful children of the marriage between the deceased and A and are therefore entitled to child's insurance benefits on his earnings record.

It was determined that the deceased wage earner and M were never lawfully married, and moreover never entered into any type of marriage ceremony; that the wage earner never acknowledged in writing that M's children were his children; that co court ever decreed that they were his children; and that he was never ordered by any court to contribute to the support of either child. As a consequence, the only way that M's children can establish entitlement to child's insurance benefits is to prove by satisfactory evidence; that they are the children of the wage earner; and that either:

1. They were living with him at the time of his death or
2. He was making contributions to their support when he died

in accordance with section 216(h)(3)(C)(ii) of the Social Security Act.

M has stated that the wage earner had at least four other girl friends and that moreover he was, at most, a transient visitor at M's home. He visited her mostly from 11:00 p.m. to 1:00 a.m., at which time he would leave and either return to his home or go to some other unknown destination. The facts show that he was a frequent visitor in M's home, but that he never actually lived with M and her children within the contemplation of the Social Security Act (see Regulations No. 4, section 404.1113).

M additionally stated that the wage earner furnished no more than $100.00 to support her and the two children during the entire year immediately preceding his death. Moreover, it was clear that even before this, contributions to their support had been sporadic and had been small and insubstantial in amount.

A disclosed that she was aware that the wage earner was seeing M and several other women, but that he always came home to A and brought his pay check with him. He never asked for a divorce, and he supported their three children. He never claimed either of M's children as dependents of his Federal Income tax return.

Therefore, it is held that the deceased wage earner never lived with M's children; and that he never regularly and substantially contributed to the support of these children. M's children have failed to establish that either is entitled to surviving child's insurance benefits on the earnings record of the deceased.

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