20 CFR 404.1101 and 404.1109
In 1957, G began living with the worker, R, in Colorado. Early in 1958 the couple moved to Arizona where they continued their cohabitation and in July 1958, a child, C, was born to them. C's birth certificate listed R as the father, R, domiciled in Arizona at the time of C's birth, lived with and supported C and G in Arizona until he left the household in November 1958, thereafter making no further contributions. C and G then returned to Colorado. Following R's death in Colorado in February 1967, then his domicile, G filed an application on behalf of C for child's insurance benefits on R's earnings record.
Section 216(h)(2)(A) of the Social Security Act provides, in pertinent part, that in determining whether an applicant is the child of a deceased insured individual, 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 insured individual was domiciled at the time of his death. An applicant having the status of "child" for such purpose has the status of "child" under section 216(h)(2)(A) of the Act. Accordingly, the issue is whether the applicant, C, would be considered by the courts of colorado (the State in which R died domiciled) to be the "child" of R for purposes of distribution of intestate personalty.
Under the law of Arizona (the State in which R was domiciled at the time of C's birth) C had from birth the personal status of legitimate child of his father. Under that law, every person born after March 17, 1921, is the legitimate child of his natural parents. Section 14-206, Arizona Revised Statutes Annotated.
Further, the general choice-of-laws rule re personal status for purposes of inheritance, as set out in 87 A.L.R. 2d 1274, 1280 (1963), is that:
Although there are no Colorado decisions directly in point, it is reasonable to assume that the courts of Colorado would follow the above-stated general rule, and recognize C's legitimate status under Arizona law with respect to R, his father, for purposes of distribution of intestate personalty in colorado.
It seems unlikely that the application of the Arizona law would be rejected as contrary to the public policy of colorado in a view of the statutory provision permitting illegitimates to inherit from their father merely:
Furthermore, the statutory and decisional laws of Colorado strongly favor legitimacy, as indicated by the following citations from the Colorado Revised Statutes 1963:
"* * * All presumptions favor legitimacy, In Re Seddon's Estate, 110 Colo. 528, 136 P.2d 285 (Colo.)." Lanford v. Lanford, 377 P.2d 115, 116 (Colo. 1962).
Accordingly, it is held that since C was legitimate under Arizona law, Colorado would recognize the legitimate status of C and accord C rights of inheritance from R under the Colorado laws concerning distribution of intestate personalty. Therefore C has the requisite status for purposes of entitlement to child's insurance benefits.
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