Rescinded 1984

SSR 73-11: Section 216(h)(2)(A) (42 U.S.C. 416(h)(2)(A)).— Child's Insurance Benefits—Illegitimacy and Acknowledgement or Recognition—Puerto Rico

20 CFR 404.1101 and 404.1109(c)

SSR 73-11

Where the child of an unmarried couple, born in Puerto Rico, is acknowledged by his father, an act which under Puerto Rican law gives a natural child equal inheritance rights with a legitimate child, held, State of New Jersey, under its conflict of laws rules, will allow such child to inherit from his father who was domiciled in New Jersey at time of his death, and thus such child would be entitled to child's insurance benefits to same extent, as legitimate child, under section 216(h)(2)(A) of Social Security Act, payable on account of his father's death.

An unmarried couple, R and B, lived together for two years in the State of New Jersey. B became pregnant and moved to Puerto Rico where her son, C, was born in May 1957. The birth records list R as the father and indicate that he gave formal recognition to the child in September 1957, in accordance with Puerto Rican law. C's parents did not thereafter live together.

In November 1958, R and M were married in New Jersey and subsequently became the parents of three legitimate children. These children became entitled to child's insurance benefits and their mother entitled to mother's insurance benefits upon R's death in 1963 while he was domiciled in New Jersey.

B filed an application in 1970 for child's insurance benefits on behalf of her minor child, C. The question thus to be decided is whether C can be considered R's child under section 216(h)(2)(A) of the Social Security Act because of R's acknowledgment of his child under the law of Puerto Rico.

Since R died domiciled in New Jersey, the question must be resolved by application of the intestacy devolution laws of that State. In order for C to be entitled to benefits under section 216(h)(2)(A), he must be able to inherit intestate personal property from R under New Jersey law.

Section 216(h)(2)(A) of the Act states in part:

In determining whether an applicant is the child . . . of ______ [an] insured individual for purposes of this title, 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 such insured individual is 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.

Although New Jersey statutes only allow natural children to inherit from their father's estate when there is subsequent marriage between the two natural parents, its courts under conflict of laws principles, will allow a child acknowledged by his father to inherit from his father if the child lives in a foreign jurisdiction where acknowledgment under the law of such jurisdiction entitles the child to rights materially comparable to those of adopted, legitimated, or legitimate children under New Jersey law. In re Estate of Spano, 49 N.J. 263, 229 A.2d 645 (1967).

Under the laws of Puerto Rico the acknowledgment of a natural child by his father entitles such child to inheritance rights like those of a legitimate child. Title 31 LPRA § 2661. In addition, such child has the right to use his father's name and to receive support from his father. Title 31 LPRA §506. Perez v. Gardner, 277 F.Supp. 985 (E.D. Wis. 1967). Based on these authorities, it is clear that the courts of New Jersey would consider the acknowledgment under Puerto Rican law of C by R, the deceased worker, to give C inheritance rights in the estate of R, his father.

Accordingly, it is held that C is the child of R within the meaning of section 216(h)(2)(A) of the Act and entitled to child's insurance benefits payable on account of R's death to the same extent as a legitimate child of R.

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