AR 05-1(9): Rescinded

Rescinded November 13, 2012 by Federal Register Vol. 77, No. 219, Page 67724

Acquiescence Ruling 05-1(9)

EFFECTIVE/PUBLICATION DATE: 09/22/2005

Issues:

Whether a child conceived by artificial means after the

death of the insured is a "child" for purposes of child's

insurance benefits under section 202(d)(1) of the Social

Security Act (Act) solely because he or she is the biological

child of the insured. Whether such child can be deemed

dependent on the deceased insured individual under section 202(d)(3) of the Act [1] because he is considered legitimate under State law.

Statute/Regulation/Ruling Citation:

Sections 202(d)(3) , 216(e) and (h) of the

Social Security Act (42 U.S.C. 402(d)(3), 416(e) and (h)); 20 CFR 404.355 .

Circuit:

Ninth (Alaska, Arizona, California, Guam, Hawaii,

Idaho, Montana, Nevada, Northern Mariana Islands, Oregon,

Washington).

Gillett-Netting v. Barnhart , 371 F.3d 593 (9th Cir. 2004), reh'g

denied (9th Cir. Dec. 14, 2004)

Applicability of Ruling:

This ruling applies to determinations

or decisions at all administrative levels, i.e., initial,

reconsideration, Administrative Law Judge (ALJ) hearing, and

Appeals Council.

Description of Case:

On August 19, 1996, Rhonda Gillett-Netting filed applications for

child's insurance benefits on behalf of her twin children as survivors

of the insured, Robert Netting. The twins, born 18 months after the

insured's death, were conceived through in-vitro fertilization using

sperm that the insured had frozen and stored before he died. The Social

Security Administration (Agency) denied the claims, finding that neither

twin met the statutory definition of "child" and that neither twin was

dependent on the father at the time of his death as required by the Act.

The district court upheld the Agency's decision. After the district

court denied the plaintiff's motion for reconsideration, Gillett-Netting

filed an appeal with the Court of Appeals for the Ninth Circuit.

Holding:

ed the claims, finding that neither

twin met the statutory definition of "child" and that neither twin was

dependent on the father at the time of his death as required by the Act.

The district court upheld the Agency's decision. After the district

court denied the plaintiff's motion for reconsideration, Gillett-Netting

filed an appeal with the Court of Appeals for the Ninth Circuit.

Holding:

On appeal, the Ninth Circuit reversed the decision of the district court

and held that the twins were entitled to benefits because, as the

insured's biological children, they met the "child" definition of the

statute. Finding that there was no dispute about the twins' parentage,

the court held that section 216(h)(2) , (3) of the Act had

"no relevance to the issue before [it]" and thus there was no need to

consult State inheritance law. The court concluded that the twins were

deemed dependent upon the insured under section 202(d)(3) of the Act

because under Arizona law, they were his "legitimate" children. Under

Arizona law, "[e]very child is the legitimate child of its natural

parents and is entitled to support and education as if born in lawful

wedlock." [2] The court

reasoned that because the insured was married to the mother of the twins

and was the twins' biological father, the twins are legitimate under

State law.

Statement as to How Gillett-Netting Differs from SSA's

Interpretation of the Social Security Act

ry child is the legitimate child of its natural

parents and is entitled to support and education as if born in lawful

wedlock." [2] The court

reasoned that because the insured was married to the mother of the twins

and was the twins' biological father, the twins are legitimate under

State law.

Statement as to How Gillett-Netting Differs from SSA's

Interpretation of the Social Security Act

We determine that an individual may be eligible for child's

insurance benefits under section 202(d)(1) of the

Act if he is the "child" of an insured individual as defined in section 216(e) and was dependent on the insured at the time of his death under

section 202(d)(3) .

Section 216(e)(1) defines a "child" as "the child or legally adopted child of an

individual." Section 216(h) provides the analytical framework that we must follow for

determining whether a child is the insured's child for the

purposes of section 216(e) . Section 216(h)(2)(A) directs us to "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...." (See also 20 CFR 404.355(a)(1) ).

A child who cannot inherit personal property from the deceased

insured individual under State intestacy law may nonetheless be

eligible for child's insurance benefits under limited

circumstances under sections 216(h)(2)(B) and (3)(C) ; these

circumstances do not apply to an after-conceived child. (See

also 20 CFR

404.355(a) ). [3] Consequently, to meet the definition of "child" under the Act,

an after-conceived child must be able to inherit under State law.

dividual under State intestacy law may nonetheless be

eligible for child's insurance benefits under limited

circumstances under sections 216(h)(2)(B) and (3)(C) ; these

circumstances do not apply to an after-conceived child. (See

also 20 CFR

404.355(a) ). [3] Consequently, to meet the definition of "child" under the Act,

an after-conceived child must be able to inherit under State law.

If the individual satisfies the definition of "child" under

section 216(e) ,

the child must also show he or she "was dependent upon" the insured

individual "at the time of [the insured's] death" in order to be

eligible for benefits under section 202(d)(1)(C)(ii) .

Under section 202(d)(3) ,

a "legitimate" child is "deemed dependent" upon the insured

individual at the time of his death unless the child has been

adopted by someone else. A child who satisfies the requirements

of section 216(h)(2) , (3) is deemed

legitimate for purposes of section 202(d)(3) and,

therefore, deemed dependent. Section 202(d)(3) ;

Social Security Ruling 77-2c .

Other children, though, must establish that they were living with

their father at the time of his death or that he was contributing to

their support in order to be found dependent under section 202(d)(3) .

The Ninth Circuit in Gillett-Netting held that the twins

established "child" status under the Act solely because they are

the biological children of the insured. The court found that

section 216(h) did not apply unless a child's parentage is

disputed. The court also found that, under Arizona law, an

insured individual's biological child conceived by artificial

means after the death of the insured would be considered

"natural" if the parents were married at the time of the

insured's death. Further, the court concluded that every child

in Arizona is the legitimate child of his natural parents

ly unless a child's parentage is

disputed. The court also found that, under Arizona law, an

insured individual's biological child conceived by artificial

means after the death of the insured would be considered

"natural" if the parents were married at the time of the

insured's death. Further, the court concluded that every child

in Arizona is the legitimate child of his natural parents. As a

result, the Ninth Circuit deemed the twins dependent on the

insured under section 202(d)(3) because it considered them to be legitimate under Arizona law.

The court concluded that the twins were eligible for child's benefits

under section 202(d) of the Act.

Explanation of How SSA Will Apply the Gillett-Netting Decision

Within the Circuit

This ruling applies only to cases involving an applicant for

surviving child's benefits who applies on the earnings record of

a person who, at the time of death, had his permanent home in

Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana,

Nevada, Northern Mariana Islands, Oregon, and Washington. While

the court based its dependency determination on State law, it

ruled that State law was irrelevant for determining "child"

status if parentage was not in dispute.

In a claim for survivor's benefits, we will determine that a

biological child of an insured individual who was conceived by

artificial means after the insured's death is the insured's

"child" for purposes of the Act. We will not apply section 216(h) of the Act in determining the child's status. In

addition, if such child is considered legitimate under State law,

we will consider the child to be the insured's "legitimate"

child and thus deemed dependent upon the insured for purposes of

section 202(d)(3) of the Act. All of the States and jurisdictions within the Ninth

Circuit, except Guam, have eliminated distinctions between legitimate

and illegitimate children

child's status. In

addition, if such child is considered legitimate under State law,

we will consider the child to be the insured's "legitimate"

child and thus deemed dependent upon the insured for purposes of

section 202(d)(3) of the Act. All of the States and jurisdictions within the Ninth

Circuit, except Guam, have eliminated distinctions between legitimate

and illegitimate children. These States allow all children the same

rights which flow between parents and their children, regardless of the

parents' marital status. A child acquires these rights if he

establishes that an individual is his parent under State family

law provisions. Accordingly, if all other requirements are met,

adjudicators will consider such child entitled to child's

benefits under section 202(d) .

[1] Section 202(d)(3) provides, in pertinent part, that "A child

shall be deemed dependent upon his father or adopting father or

his mother or adopting mother at the time specified in paragraph

(1)(C) of this subsection. . . . [A] child deemed to be a child

of a fully or currently insured individual pursuant to section 216(h)(2)(B) or section 216(h)(3) . . .

shall be deemed to be the legitimate child of such individual," and

therefore presumptively dependent.

[2] Ariz. Rev. Stat. § 8-601 (1975).

[3] An applicant will be deemed a "child" under section 216(e)(1) if he or she is the biological child of the insured and his or

her parents went through a marriage ceremony that would have

been valid but for a legal impediment. See section 216(h)(2)(B) of the Act; 20 CFR 404.355(a)(2) .

An applicant will also be considered a "child" if: (1) the insured had,

before his death, acknowledged parentage in writing, been decreed a

parent by a court, or been ordered to pay child support; or (2) there is

satisfactory evidence that the deceased insured is the

biological parent of the applicant and the insured was, at the

time of his death, living with the applicant or contributing to

his support

also be considered a "child" if: (1) the insured had,

before his death, acknowledged parentage in writing, been decreed a

parent by a court, or been ordered to pay child support; or (2) there is

satisfactory evidence that the deceased insured is the

biological parent of the applicant and the insured was, at the

time of his death, living with the applicant or contributing to

his support. See section 216(h)(3)(C) of the Act; 20 CFR 404.355(a)(3)-(4) .

These additional tests for eligibility require action by the insured

during the lifetime of the child.