SSR 79-35


PURPOSE: To state policy regarding the dependency requirements for children who can inherit intestate property from the insured parent under State law.

CITATIONS (AUTHORITY): Sections 202(d)(3), 216(h)(2)(A), 216(h)(2)(B), and 216(h)(3)(A) of the Social Security Act; Regulations No. 4, sections 404.350-404.368.

PERTINENT HISTORY: Previous policy was based on a literal statutory interpretation in determining dependency for illegitimate children who can inherit property from their insured father or mother.

Section 202(d)(3) of the Act provides that legitimate children, children of a deemed marriage, and illegitimate children who have been either acknowledged in writing by the father, or for whom there was a court order of paternity or support, are deemed dependent upon the father. All other children of the wage earner must establish dependency by showing that they were either "living with" or "receiving contributions from" the wage earner at the time specified in the law. Thus, a child under section 216(h)(2)(A) of the Act, that is, a child who can inherit from the worker under State law, was required to establish dependency.

Although previous policy required a child who can inherit from the wage earner to establish dependency, in many States the same action by the parent which gives a child the right to inherit, such as a written acknowledgment, may also be used to establish the child's entitlement (and deemed dependency) under section 216(h)(3) of the Act.

The Supreme Court, in Jimenez v. Weinberger, 417 U.S. 628 (1974), stated, by way of dictum, that an illegitimate child who may inherit under State law is deemed dependent upon his or her father. Because this statement is contrary to the literal statutory language, SSA's position that such children are not deemed dependent was argued to the Supreme Court in later litigation.

After full briefing, the Supreme Court, in Mathews vs. Lucas, 427 U.S. 495 (1976), declined to accept SSA's position, and stated its view that the child who may inherit under State law is dependent and need not prove dependency. SSA accepted this statement as establishing the law of the matter.

POLICY STATEMENT: A claimant for child's benefits, who qualifies as a child because he or she can inherit intestate personal property under the law of the State of the wage earner's domicile, is deemed dependent upon the wage earner. Proof that the child was living with, or receiving contributions from, the wage earner is not required.

EFFECTIVE DATE: This policy represents a change in position from policy previously followed. This new policy is required by the court decision, Mathews vs. Lucas, and is effective June 29, 1976, the date of that decision.

Any claim adjudicated on or after that date which did not conform to the revised policy and which resulted in an unfavorable decision, may be reopened to conform to the revised policy.

CROSS-REFERENCES: Claims Manual Sections T2425-T2427, 2650 and 2652(a).

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