SSR 66-47: SECTIONS 202(d)(1) and 216(h)(3)(C). -- CHILD'S INSURANCE BENEFITS -- STATUS OF ILLEGITIMATE CHILD UNDER 1965 AMENDMENTS -- "ACKNOWLEDGMENT IN WRITING"

SSR 66-47

Where a fully insured worker, the biological father of children born out of wedlock, died in 1964, domiciled in Louisiana, without having satisfied State law requirements as to legitimation or recognition of such children so that the children could not inherit from the worker, but where, however, the worker prior to his death had identified each of the children by name and named himself as father in a document executed for a department of public welfare, which he signed, held, such document constitutes "acknowledgment in writing" within the meaning of section 216(h)(3)(C) of the Social Security Act as amended in 1965. Thus, each child is deemed to be the worker's "child" and entitled to child's insurance benefits, other requirements having been met.

In February 1964, R, a fully insured worker, filed an application for disability insurance benefits. On his signed application, he identified four children by name and indicated that they were his illegitimate children. R and the children's mother, W, were never married and W was not married to anyone else at the times the children were conceived. R died on October 10, 1964, domiciled in the State of Louisiana.

On January 5, 1965, W filed application on behalf of the children for child's insurance benefits based on R's earnings record. All the children were under age 18.

Section 202(d)(1) of the Social Security Act, as then in effect, provided in pertinent part that every "child" (as defined in section 216(e) of the Act) of a fully or currently insured deceased worker is entitled to a child's insurance benefit if he: (1) files application; and (2) at the time he files application is unmarried and under age 18 or is under a disability which began before age 18; and (3) was dependent upon the worker at the time the worker died.

Section 216(e), in pertinent part, defines the term "child" as the worker's child, legally adopted child, or under certain conditions, a stepchild. Section 216(h)(2)(A) provides that in determining whether an applicant is the child of a deceased insured worker, the Secretary of Health, Education, and Welfare shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the worker was domiciled at the time of his death. An applicant who according to such law would have the same status relative to taking intestate personal property as a child shall be deemed such. Section 216(h)(2)(B) provides, in pertinent part, that where a child does not qualify under section 216(h)(2)(A), he may nevertheless be deemed the worker's child where the mother and the worker went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment, would have been a valid marriage.

While R indicated on his application for benefits that he was the father of W's children, he never acknowledged them in accordance with the requirements of Louisiana law, and therefore the children did not have the status of R's children for inheritance purposes at the time of his death. Thus, they could not be deemed R's children under section 216(h)(2)(A) of the Act. Further, since the parents did not go through a marriage ceremony, the children are not deemed the worker's children under section 216(h)(2)(B) of the Act. In February 1965, the children's claims were disallowed because they did not have the status of "child" of the worker within the meaning of the Social Security Act as then in effect.

However, the Social Security Amendments of 1965 (P.L. 89-97, enacted July 30, 1965) added section 216(h)(3) of the Act, effective for benefits beginning no earlier than September 1965, which provides that a child who does not qualify as the worker's child under section 216(h)(2)(A) or (B) may nevertheless become entitled to benefits as a male worker's child if he meets certain requirements. Section 216(h)(3) provides in pertinent part:

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:

* * * * *

(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, * * *.

In addition, section 202(d)(3) of the Act, as amended in 1965, provides that a child deemed to be a child of a fully or currently insured worker under section 216(h)(3) shall be deemed to be a legitimate child and dependent on his father, except where such child has been adopted by some other party and the child was neither living with the insured worker nor receiving substantial contributions from him.

In August 1965, W filed a second application for benefits on behalf of the children, this time under the provisions of the Act as amended in July 1965. Evidence submitted in connection with this second application clearly indicates that R was the biological father of the child-claimants. In addition, a document signed by R on December 5, 1962, was introduced from records of the Department of Public Welfare, which listed each of the four children by name, showed each as a son or daughter of W, and showed R as the father of each child. Since that document identified the four children by name, indicated R as father of each child, and was signed by R, it constitutes an "acknowledgment in writing" within the meaning of section 216(h)(3)(C). Each child, therefore, is deemed to be R's "child" for purposes of entitlement to child's insurance benefits under section 202(d)(1) of the Act, and in accordance with section 202(d)(3) of the Act, each child is deemed to have been dependent upon R at the time of his death.

Accordingly, all other requirements for entitlement having been met, it is held that W's children are entitled to child's insurance benefits on R's earnings record, beginning with September 1965.

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