20 CFR 404.1101(d)
Section 202(d)(1) of the Social Security Act provides, in part, that a child (as defined in section 216(e) of the Act) of an individual who dies a fully or currently insured individual shall be entitled to a child's insurance benefit if such child has filed application and at the time of application: (1) is unmarried, and (2) either has not attained age 18 or is a full-time student and has not attained age 22, and (3) was dependent on such individual at the time such individual died.
A child, as defined in section 216(e) of the Social Security Act and as here pertinent, is (1) the child or legally adopted child of an individual, and (2) a stepchild. In determining whether an applicant (other than a legally adopted child or stepchild) is a "child" within the meaning of section 216(e), section 216(h)(2)(A) provides in part that such law will be applied as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death; an applicant who, according to such law, would have the same status as the insured individual's child relative to sharing in his intestate personal property shall be deemed to be his child. Further, section 216(h)(2)(B) provides that an applicant who does not qualify as a "child" of the insured individual under the preceding requirement, may nevertheless be deemed his "child" if the insured individual and the applicant's father or mother went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment, would have been a valid marriage.
In most States, an illegitimate child has the status of "child" of his mother for purposes of sharing in her intestate personal property. However, there are situations in some jurisdictions (e.g., under Louisiana law, the child of an adulterous union) in which an illegitimate child has no legal rights in the intestate personal property of either parent and thus would not have the status of "child" of a deceased female worker under section 216(h)(2)(A) of the Social Security Act.
However, section 216(h)(3)(C) of the Act provides in part that an applicant who does not qualify as a "child" of a deceased insured individual under the foregoing provisions of section 216(h)(2)(A) and (B) may nevertheless be deemed the insured individual's "child" if:
Thus, a question has been raised as to whether a child who does not have the status of "child" of his mother under section 216(h)(2)(A), (such as the child of an adulterous union under Louisiana law), may be deemed the "child" of his mother under any of the provisions of section 216(h)(3)(C)(i) of the Act, supra.
Clause (II) of section 216(h)(3)(C)(i) is expressly limited to those situations in which the insured individual is the "father" of the applicant. The language of clauses (I) and (III) is not, however, similarly restricted. The enactment of section 216(h)(3) of the Social Security Act in 1965 was remedial in nature and its purpose was to correct the inequity resultant in some cases from having entitlement to child's insurance benefits depend on the laws governing intestate personal property in the jurisdiction in which a parent happens to live. [Senate Report No. 404, Part I, 89th Congress, 1st Session, pp. 109-110 (1965).] Thus, an interpretation of section 216(h)(3) as providing a remedy in the mother-child, as well as the father-child relationship (where the problem is identical) best promotes the general purpose for the enactment of this section.
Further, the initial statement in section 216(h)(3) refers to an applicant who is the son or daughter but not "the child of [an] insured individual under paragraph (2) [section 216(h)(2)]"; and an "insured individual" under section 216(h)(2) clearly includes either a mother or father, inasmuch as section 216(h)(2)(B) specifically covers the marriage "of such insured individual and the mother or father, as the case may be, of such applicant * * *".
Although the adjectives describing the insured individual in clauses (I) and (III) of section 216(h)(3)(C)(i) are in the masculine gender, such words do not require a literal interpretation. The United States Code specifically points out that:
"In determining the meaning of any Act of Congress, unless the context indicates otherwise, * * * words importing the masculine gender include the feminine as well." 1 U.S.C. 1; see Barbagollo v. Fishbein, 286 F. 780, 782 (D.C. Cir., 1923).
Accordingly, it is held that an applicant who does not have the status of "child" of his deceased mother under section 216(h)(2)(A) of the Social Security Act, may nevertheless be deemed the child of such mother under section 216(h)(3)(C)(i)(I) where she acknowledged the child in writing, or under section 216(h)(3)(C)(i)(III) where she was ordered by a court to contribute to the child's support because the child was her son or daughter.
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