SSR 68-29: SECTIONS 202(d)(1) AND 216(h)(3)(C)(ii). -- CHILD'S INSURANCE BENEFITS -- ENTITLEMENT OF ILLEGITIMATE CHILD -- EVIDENCE OF RELATIONSHIP

20 CFR 404.1101(d) and 404.1109(c)

SSR 68-29

Where a worker died domiciled in Louisiana survived by five illegitimate children, and under the law of Louisiana such children did not have the status of children for purposes of inheriting the worker's intestate personalty and where, pursuant to an application on their behalf for child's insurance benefits based on the worker's earnings record, evidence was submitted consisting of birth certificates recorded at birth, school records naming the worker as father, statements from the landlord, relatives of the worker, and the midwife who delivered three of the children, which tended to show that the worker was the natural father of the children and that he was living with and contributing to the support of the children at the time of his death, held, although the children did not have the status of a child to take the worker's intestate personal property under the law of Louisiana, the worker was shown by satisfactory evidence to be the father of the children and he was living with and supporting the children at death. Therefore, they are deemed to be the worker's children under section 16(h)(30(C)(ii) and are entitled to child's insurance benefits on his earnings record.

R, a fully insured worker, died in October 1966, domiciled in the State of Louisiana. In November 1966, W, the woman with whom R had been living for 13 years, filed application for child's insurance benefits on behalf of their five children. W indicated that she had previously married X in 1950 and was never divorced. While admitting the lack of a legal relationship to R, W contended that she and R had lived together continuously from December 1953 until his death in 1966. She also stated that all the children always lived with and were supported by R until his death and that all were his natural children.

Section 216(h)(2)(A) of the Social Security Act provides, as pertinent here, that in determining whether an applicant is the child of an insured worker, the Secretary 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. "Applicants 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)(3)(C) of the Act provides, as pertinent here, that an applicant shall be deemed to be the child of that individual if "(ii) such insured individual is shown by evidence satisfactory to the Secretary to have been the father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died."

The children did not have status as R's children for inheritance purposes under Louisiana law. The question to be decided is whether under section 216(h)(3)(C)(ii) of the Act they are deemed to be his children for purposes of entitlement to child's insurance benefits.

In this case, the mother of the children submitted a birth certificate for each child, recorded shortly after birth, showing R and W as father and mother of the child named. She also submitted school records indicating R as the father. In addition, the evidence included a statement by the landlord of the premises on which they lived that R, W, and the children had lived together on the landlord's property until R's death and that R had always acknowledged paternity of the children. Four of R's relatives stated in writing that R was the children's father and that he had lived with and supported them from birth until his death.

In addition, a statement from a midwife, who was also related to R, indicated that she delivered three of the children, that R came to get her before each delivery, was present in the house when they were born, paid for her services and had told her they were his children.

Satisfactory evidence has been submitted to show that R is the father of the children and to establish that R was living with and contributing to the support of the children at the time of his death. Thus, the requirements of section 216(h)(3)(C)(ii) of the Act are met.

Accordingly, it is held that on the basis of the application filed in November 1966, the children are entitled to child's insurance benefits on R's earnings record, beginning with October 1966, the month in which he died.