SSR 68-49: SECTION 216(h)(3)(C). -- RELATIONSHIP -- ILLEGITIMATE CHILD HAVING NO INHERITANCE RIGHTS IN ESTATE OF DECEASED MOTHER

20 CFR 404.1101(d)

SSR 68-49

Section 202(d)(1) of the Social Security Act provides, in part, that a

child (as defined in section 216(e) of the Act) of an individual who dies

a fully or currently insured individual shall be entitled to a child's

insurance benefit if such child has filed application and at the time of

application: (1) is unmarried, and (2) either has not attained age 18 or

is a full-time student and has not attained age 22, and (3) was dependent

on such individual at the time such individual died.

A child, as defined in section 216(e) of the Social Security Act and as

here pertinent, is (1) the child or legally adopted child of an

individual, and (2) a stepchild. In determining whether an applicant

(other than a legally adopted child or stepchild) is a "child" within the

meaning of section 216(e), section 216(h)(2)(A) provides in 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 his death; an applicant

who, according to such law, would have the same status as the insured

individual's child relative to sharing in his intestate personal property

shall be deemed to be his child. Further, section 216(h)(2)(B) provides

that an applicant who does not qualify as a "child" of the insured

individual under the preceding requirement, may nevertheless be deemed his

"child" if the insured individual and the applicant's father or mother

went through a marriage ceremony resulting in a purported marriage between

them which, but for a legal impediment, would have been a valid

marriage.

tion 216(h)(2)(B) provides

that an applicant who does not qualify as a "child" of the insured

individual under the preceding requirement, may nevertheless be deemed his

"child" if the insured individual and the applicant's father or mother

went through a marriage ceremony resulting in a purported marriage between

them which, but for a legal impediment, would have been a valid

marriage.

In most States, an illegitimate child has the status of "child" of his

mother for purposes of sharing in her intestate personal property.

However, there are situations in some jurisdictions (e.g., under Louisiana

law, the child of an adulterous union) in which an illegitimate child has

no legal rights in the intestate personal property of either parent and

thus would not have the status of "child" of a deceased female worker

under section 216(h)(2)(A) of the Social Security Act.

However, section 216(h)(3)(C) of the Act provides in part that an

applicant who does not qualify as a "child" of a deceased insured

individual under the foregoing provisions of section 216(h)(2)(A) and (B)

may nevertheless be deemed the insured individual's "child" if:

Thus, a question has been raised as to whether a child who does not have

the status of "child" of his mother under section 216(h)(2)(A), (such as

the child of an adulterous union under Louisiana law), may be deemed the

"child" of his mother under any of the provisions of section

216(h)(3)(C)(i) of the Act, supra.

A) and (B)

may nevertheless be deemed the insured individual's "child" if:

Thus, a question has been raised as to whether a child who does not have

the status of "child" of his mother under section 216(h)(2)(A), (such as

the child of an adulterous union under Louisiana law), may be deemed the

"child" of his mother under any of the provisions of section

216(h)(3)(C)(i) of the Act, supra.

Clause (II) of section 216(h)(3)(C)(i) is expressly limited to those

situations in which the insured individual is the "father" of the

applicant. The language of clauses (I) and (III) is not, however,

similarly restricted. The enactment of section 216(h)(3) of the Social

Security Act in 1965 was remedial in nature and its purpose was to correct

the inequity resultant in some cases from having entitlement to child's

insurance benefits depend on the laws governing intestate personal

property in the jurisdiction in which a parent happens to live. [Senate

Report No. 404, Part I, 89th Congress, 1st Session, pp. 109-110 (1965).]

Thus, an interpretation of section 216(h)(3) as providing a remedy in the

mother-child, as well as the father-child relationship (where the problem

is identical) best promotes the general purpose for the enactment of this

section.

Further, the initial statement in section 216(h)(3) refers to an

applicant who is the son or daughter but not "the child of [an] insured

individual under paragraph (2) [section 216(h)(2)]"; and an "insured

individual" under section 216(h)(2) clearly includes either a mother or

father, inasmuch as section 216(h)(2)(B) specifically covers the marriage

"of such insured individual and the mother or father, as the case may be,

of such applicant * * *".

Although the adjectives describing the insured individual in clauses (I)

and (III) of section 216(h)(3)(C)(i) are in the masculine gender, such

words do not require a literal interpretation. The United States Code

specifically points out that:

216(h)(2)(B) specifically covers the marriage

"of such insured individual and the mother or father, as the case may be,

of such applicant * * *".

Although the adjectives describing the insured individual in clauses (I)

and (III) of section 216(h)(3)(C)(i) are in the masculine gender, such

words do not require a literal interpretation. The United States Code

specifically points out that:

"In determining the meaning of any Act of Congress, unless the context

indicates otherwise, * * * words importing the masculine gender include

the feminine as well." 1 U.S.C. 1; see Barbagollo v. Fishbein, 286 F. 780, 782 (D.C. Cir., 1923).

Accordingly, it is held that an applicant who does not have the

status of "child" of his deceased mother under section 216(h)(2)(A) of the

Social Security Act, may nevertheless be deemed the child of such mother

under section 216(h)(3)(C)(i)(I) where she acknowledged the child in

writing, or under section 216(h)(3)(C)(i)(III) where she was ordered by a

court to contribute to the child's support because the child was her son

or daughter.