20 CFR 404.1101(d)(3)
R and W had lived together as man and wife in the same household for several years until R's death in January 1967, although during that period R had a prior undissolved marriage. R provided W's entire support during this relationship. Three months after R's death, his illegitimate child, C, was born in April 1967. W, the child's mother, filed application on his behalf for child's insurance benefits in June 1967, based on r;s earnings record.
Section 216(e) of the Social Security Act defines the term "child" to mean (1) the child or legally adopted child of an individual, and (2) a stepchild. In determining whether a claimant (who is neither a legally adopted child nor a stepchild) is the child of an insured individual within the meaning of section 216(e), section 216(h)(2) of the Act provides, in pertinent 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 death. A claimant who according to such law would have the same status relative to taking intestate personal property as a child shall be deemed the insured individual's child. Failing this requirement, section 216(h)(2) further provides that the claimant may nevertheless be deemed the child of the insured individual if such individual and the mother or father, as the case may be, of such claimant went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment (as described in section 216(h)(1)(B)) would have been a valid marriage.
Under the law of the State of R's domicile at death, C had no rights of inheritance in R's intestate personal property. Further, since R and W did not undertake a ceremonial marriage, it follows that C cannot be deemed R's child under section 216(h)(2) of the Act.
However, section 216(h)(3) of the Act provides in pertinent part, as follows:
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The question to be resolved is whether the child, C, conceived outside of marriage and born after R's death, may nevertheless be deemed to be R's child under section 216(h)(3) of the Act.
The biological paternity of C has been satisfactorily established. It has also been established that R had lived with and had supported W until his death. Remaining for answer, however, is whether such living with or support of W constituted living with or support of W's unborn child, C.
While there appears to be no case law which interprets the "living with" provision of section 216(h)(3)(C)(ii) of the Act as applicable to posthumous children, the Social Security Administration holds that the illegitimate child of a deceased father, conceived before, but born after, the father's death, is sufficiently "in being" to be capable of "living with" the father at the time of his death, provided the child is born alive. (Compare SSR 67-17, C.B. 1967, p. 16, in which a child born after the beginning of the worker's period of disability was considered sufficiently "in being" at the beginning of the period of disability to be capable of "living with the worker at that time.) Moreover, it is clear that one purpose of the child's benefits provision of the Act is to provide for children of deceased insured individuals. The fact that a worker dies before the birth of a child already "in being" is no legal or equitable reason to foreclose his entitlement. Therefore, since R was "living with" W at the time of his death, he was also then living with C. (See also SSR 60-9, C.B. 1960-1961, p.35.) Similarly, the Social Security Administration holds that if a worker was, in fact, contributing to the support of the mother of an unborn child, he was contributing to the support of the child.
Accordingly, it is held that C, having met all requirements, may be deemed the child of R under section 216(h)(3)(C)(ii) of the Act and therefore is entitled to child's insurance benefits.
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