EFFECTIVE DATE: 7/3/86
Whether the contributions for support by the father of an unborn child commensurate with the needs of the unborn child at the time of the father's death establish support of the child in order to entitle the child to survivor's benefits as a deemed child, even though the contributions to the child or the child's mother were not regular and substantial. Further, whether the Secretary in determining if the worker was "contributing to the support" of the unborn child, must consider such contributions in relation to the worker's economic circumstances.
Section 216(h)(3)(C)(ii) of the Social Security Act (42 U.S.C. 416(h)(3)(C)(ii); 20 C.F.R. 404.366(a)(2); Social Security Ruling 68-22
NINTH (ALASKA, ARIZONA, CALIFORNIA, GUAM, HAWAII IDAHO, MONTANA, NEVADA, NORTHERN MARIANA ISLANDS, OREGON, WASHINGTON)
Doran v. Schweiker, 681 F.2d 605 (9th Cir. 1982)
Kyle Doran is the illegitimate child of Doris Clark and Kim Mace. Mr. Mace and Ms. Clark began living together in December 1969. In early January 1970, after Ms. Clark discovered that she was pregnant, Mr. Mace publicly acknowledged his paternity. At the end of January, after a disagreement, Ms. Clark moved out to a cabin on a ranch, where she was provided free lodging, and, in return for taking care of a child, free meals. During the time they lived together, Mr. Mace and Ms. Clark were both unemployed. Each contributed to the rent and food from other funds. After Ms. Clark left, Mr. Mace took a job. He did not contribute money to her support, but at her request, he made three or four trips moving her to the cabin, and hurried out to repair her roof during a rainstorm. He killed himself March 16, 1970 when Ms. Clark was three months pregnant. Kyle Doran was born October 3, 1970.
In 1974, Kyle Doran's application for child's insurance benefits on the earnings record of Kim Mace was denied by an Administrative Law Judge (ALJ) who found Doran ineligible for benefits because at the time of Mr. Mace's death he was not living with or contributing to Doran's support: Section 216(h)(3)(C)(ii). Doran appealed to the District Court for the Northern District of California which remanded the case to the Secretary for reconsideration in light of the Second Circuit's decision in Adams v. Weinberger, 521 F.2d 656 (2nd Cir. 1975). On remand, the ALJ again found Doran ineligible. The District Court affirmed the ALJ's decision. Claimant appealed to the United States Court of Appeals for the Ninth Circuit which reversed the District Court.
The Court of Appeals following Adams held that the proper test for determining whether the father was "contributing to the support" of his illegitimate posthumous child is whether the parent's support was commensurate with the needs of the unborn child at the time of the father's death. The court further held that the economic circumstances of the worker must be taken into account when making such a determination. The court concluded that based on the record Mr. Mace had contributed support according to his ability and the needs of the three-month-old fetus. Thus the test was met.
According to the Social Security Administration's (SSA's) regulations implementing section 216(h)(3)(C)(ii) of the Social Security Act (20 C.F.R. 404.366(a)), "contributions for support" of the claimant must be made regularly and must be substantial. To be substantial, contributions must be large enough to meet an important part of the ordinary living costs of the claimant. A consistent pattern of contributions is sufficient to show regularity. Under SSR 68-22, and SSA's operating instructions, the "living with" or "contributing to support" requirements are established for the posthumous child of a worker if the worker was living with, or contributing to the support of, the child's mother at the time of the worker's death.
The court in Doran held that the proper test for contributions is whether the father's support was commensurate with the needs of the unborn child at the time of the father's death. The court opined that the Secretary must take into account the economic circumstances of the child's father in determining whether, at death, he was contributing to the claimant's support.
This ruling applies only to cases involving an applicant for child's benefits as a deemed child under Section 216(h)(3)(c)(ii) of the Social Security Act who resides in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon or Washington 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 and who was born after the worker died.
Such an applicant will be deemed to be the worker's child when satisfactory evidence establishes that the worker is the father of the child and the worker's contributions to his unborn child were commensurate with the needs of the unborn child at the time of the worker's death, even though those contributions were not regular and substantial. The economic circumstances of the worker (i.e., ability to contribute) will also be taken into account in determining whether the worker was contributing to the claimant's support.
Date of Publication
 Adams held that the test of support by a father of his illegitimate posthumous child is whether the support that was provided was commensurate with the needs of the unborn child at the time of the father's death.
Back to Table of Contents