AR 86-17(9) (Rescinded 11/27/98)
EFFECTIVE DATE: 5/21/86
Whether, for purposes of determining a child's status under Section 216(h)(2)(A) of the Social Security Act, the Secretary must apply the State law of interstate succession in effect at the time of the worker's death, rather than the law in effect at the time of the Secretary's determination.
Section 216(h)(2)(A) of the Social Security Act (42 U.S.C. 416(h)(2)(A)); 20 C.F.R. 404.354(b)
NINTH (ALASKA, ARIZONA, CALIFORNIA, GUAM, HAWAII, IDAHO, MONTANA, NEVADA, NORTHERN MARIANA ISLANDS, OREGON, WASHINGTON)
Owens v. Schweiker, 692 F.2d 80 (9th Cir. 1982)
Jason Owens alleges that he is entitled to child's insurance benefits on the earnings record of Elvis Joe Quinton because he is the worker's illegitimate son. Mr. Quinton, a Washington domiciliary, died six months before Jason was born. Theresa Owens, Jason's mother, was never married to Mr. Quinton nor did she live with him. Mr. Quinton was unaware of the pregnancy at the time of his death, and left no will or other writing acknowledging the unborn child as his own. Jason's right to benefits was dependent on his right to inherit from his father under the laws of intestacy of the State of Washington. Under Washington law in effect at the time of Mr. Quinton's death in 1971, an illegitimate child could not take by intestate succession from a deceased father unless the father had either married the child's mother or acknowledged the child in writing. Jason could therefore not qualify as Mr. Quinton's child under either provision.
In 1976, after Mr. Quinton's death but before Jason's Social Security claim was filed, Washington amended its law of intestate succession so that a child's right to inherit by intestate succession does not depend on whether the parents married each other. Under the amended statute, Jason may be an intestate heir of Quinton and therefore may be his child for purposes of claiming benefits under the Act.
Ms. Owens' 1978 claim for benefits on behalf of Jason was denied by the administrative law judge (ALJ) on the ground that the applicable State law to apply for purposes of section 216(h)(2)(A) of the Social Security Act was that in effect at the time of Mr. Quinton's death. Ms. Owens appealed to the United States District Court for the Western District of Washington which affirmed the Secretary's decision. Ms. Owens then appealed to the United States Court of Appeals for the Ninth Circuit which reversed the district court's decision and remanded the case to the district court with instructions to remand it to the Secretary for a determination under the Washington law of intestate succession, as amended in 1976.
The Court of Appeals held that the Secretary erred by applying the law of intestate succession in effect at the time of the insured worker's death, rather than the law in effect at the time of the Secretary's determination.
42 U.S.C. 416(h)(2)(A) states in pertinent part that to determine ". . . whether an applicant is the child . . .of a fully or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate property by the courts of the State in which . . . if such insured individual is dead, . . . he was domiciled at the time of his death. . . ." Under the Secretary's regulation (20 C.F.R. 404.354(b)), interpreting the statute, SSA applies intestacy laws which were in effect in the State of the worker's domicile at the time of the worker's death.
The Court of Appeals in Owens held that the Secretary must apply the intestacy law in effect at the time of the Secretary's determination.
This ruling applies only to cases where the child resides in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, or Washington at the time of determination or decision at any level of administrative review, i.e., initial, reconsideration, administrative law judge hearing or Appeals Council.
In a claim for surviving child's benefits involving section 216(h)(2)(A) of the Social Security Act (42 U.S.C. 416(h)(2)(A)), to determine the right of the child to inherit under the intestacy law in the State of the worker's domicile at the time of death, the law which is in effect at the time of the determination or decision at any level of administrative review, i.e., initial, reconsideration, administrative law judge hearing or Appeals Council review, shall be applied to determine the child's entitlement to benefits.