[Federal Register Volume 62, Number 20 (Thursday, January 30, 1997)]
[Proposed Rules]
[Pages 4494-4497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2315]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 404
RIN 0960-AE30
Application of State Law in Determining Child Relationship
AGENCY: Social Security Administration (SSA).
ACTION: Proposed rule.
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SUMMARY: We are proposing to revise our rules on determining whether a
natural child has inheritance rights under appropriate State law and
therefore may be entitled to Social Security benefits as the child of
an insured worker. Specifically, we propose to revise our rules to
explain which version of State law we will apply, depending on whether
the insured is living or deceased, how we will apply State law
requirements on time limits for determining inheritance rights, and how
we will apply State law requirements for a court determination of
paternity. We are also proposing to clarify our current rule on
determining an applicant's status as a legally adopted child of an
insured individual.
DATES: Your comments will be considered if we receive them no later
than March 31, 1997.
ADDRESSES: Comments should be submitted in writing to the Commissioner
of Social Security, P.O. Box 1585, Baltimore, MD 21235, sent by telefax
to (410) 966-2830, sent by E-mail to regulations@ssa.gov,'' or
delivered to the Division of Regulations and Rulings, Social Security
Administration, 3-B-1 Operations Building, 6401 Security Boulevard,
Baltimore, MD 21235, between 8:00 a.m. and 4:30 p.m. on regular
business days. Comments received may be inspected during these same
hours by making arrangements with the contact person shown below.
FOR FURTHER INFORMATION CONTACT: Lois Berg, Legal Assistant, Division
of Regulations and Rulings, Social Security Administration, 3-B-1
Operations Building, 6401 Security Boulevard, Baltimore, MD 21235,
(410) 965-1713.
SUPPLEMENTARY INFORMATION:
Time for Determining Relationship of Natural Child
Section 216(h)(2)(A) of the Social Security Act (the Act) states in
part that in determining whether an applicant is the child of a
deceased insured individual, the Commissioner 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 or her death. A child of a valid marriage
has inheritance rights under the laws of all States.
When determining the relationship of an illegitimate child to a
deceased insured person under section 216(h)(2)(A), we have always
looked to the law that was in effect in the insured's State of domicile
at the time he or she died. Some Federal courts have also interpreted
the provision this way. See Schaefer on behalf of Schaefer, 792 F.2d 81
(7th Cir. 1986); Ramon v. Califano, 493 F. Supp. 158 (W.D. Tex. 1980);
and Allen v. Califano, 452 F. Supp. 205 (D. Md. 1978).
Other courts have adopted different interpretations. For example,
in Owens v. Schweiker, 692 F.2d 80 (9th Cir. 1982), the court held that
section 216(h)(2)(A) should be read to require the use of the State law
of domicile that was in effect at the time of the Secretary's
determination on the child's claim. We, therefore, published a final
rule (49 FR 21512) on May 22, 1984, amending Sec. 404.354 of our
regulations to clarify and reinforce our policy on applying State
inheritance laws. However, after we amended our regulations, we also
published Acquiescence Ruling (AR) 86-17(9) to clarify that we would
apply the Owens decision to claims of children residing in the 9th
Circuit. (When these
[[Page 4495]]
proposed regulations are published as final rules, we will rescind AR
86-17(9).)
Still other courts have held that the relevant law is the law in
force at the time the child applies for benefits (see Cox on behalf of
Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982); and Hart by and through
Morse v. Bowen, 802 F.2d 1334 (11th Cir. 1986)).
Recognizing that the language in section 216(h)(2)(A) could be
viewed as ambiguous and has not been interpreted the same by all
courts, we are proposing to amend our policy as stated in
Sec. 404.354(b). We believe that a policy that permits us to apply any
of several potentially applicable State inheritance laws would best
effectuate Congress' intent with regard to serving the interests of
surviving illegitimate children. Therefore, when the insured is
deceased, we propose to determine the status of his or her illegitimate
child by applying the State inheritance law that is in effect when we
adjudicate the child's claim for benefits. If the child does not have
inheritance rights under that version of State law, we will apply the
State law that was in effect when the insured died, or any version of
State law in effect from the time the child first could be entitled to
benefits based on his or her application until the time we make our
final decision on the claim, whichever version is more beneficial to
the child.
We also explain in these proposed regulations how we will determine
which law was in effect as of the date of death. First we will look to
the inheritance law that was in effect on the date of the insured's
death. Then, if a law enacted after the insured's death is retroactive
to the date of his or her death, we will apply that law. However, if a
law in effect at the time of death was later declared unconstitutional,
we will apply the State law which superseded the unconstitutional law.
Regarding the child of a living insured worker, our current rule in
Sec. 404.354(b) provides that the Commissioner of Social Security (the
Commissioner) will apply the inheritance law that was in effect when
the child's claim was filed. We are proposing to amend Secs. 404.354
and 404.355 to clarify that we will look to the versions of State
inheritance laws that were in effect from the first month for which the
child could be entitled to benefits up to and including the time of our
final decision and we will apply the version most beneficial to the
child.
State Law Time Limits
As previously stated, section 216(h)(2)(A) of the Act provides
that, in determining whether an applicant is the child of a deceased
insured individual, the Commissioner 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 or her death. That section further states that an
applicant who, according to such law, would have the same status
relative to taking intestate personal property as a child or parent
shall be deemed such respective child or parent.
Many State laws impose time limits on when someone must act to
establish paternity for purposes of intestate succession. Such time
limits are intended to provide for an orderly and expeditious
settlement of estates. Since this is not the purpose of Social Security
benefits for children, we provide in these proposed regulations that we
will not apply a State's time limits relative to the time at which a
child's relationship must be established when we determine the child's
status under section 216(h)(2)(A). Not applying time limits is
consistent with our belief that such a policy on applying State
inheritance laws will best serve the interests of the children Congress
sought to protect when it enacted section 216(h)(2)(A) of the Act.
Court Order Requirements
Some State laws require a court determination of paternity for an
illegitimate child to have inheritance rights. In determining a child's
status under section 216(h)(2)(A), our policy has been to require that
a claimant submit a court determination of paternity if one is required
under State inheritance law. However, we propose to revise this policy
by stating in these rules that in a State that requires a court
determination of paternity, we will use the standard of proof that the
State court would use as the basis for such a determination, but we
will not actually require a determination by a State court. Of course,
if a State court with jurisdiction over the matter declares that a
child can take a child's share of an insured individual's estate
through intestacy, or if a State court determines a child's paternity
and such determination would prevail in that State's intestacy
proceedings, SSA could generally rely on such State court findings. So,
while we will not require an applicant to obtain a State court's
determination, we will be guided by such determinations that an
applicant has obtained, subject to the prerequisites stated in Social
Security Ruling 83-37c for accepting State court determinations. Those
prerequisites are: (1) an issue in a claim for Social Security benefits
previously has been determined by a State court of competent
jurisdiction; (2) this issue was genuinely contested before the State
court by parties with opposing interests; (3) the issue falls within
the general category of domestic relations law; and (4) the resolution
by the State trial court is consistent with the law enunciated by the
highest court in the State.
If we evaluate paternity by using the same standards that the
appropriate State court would use if the issue were properly before it,
we believe we will satisfy the intent of section 216(h)(2)(A) that we
apply ``such law as would be applied'' by the State court to determine
inheritance rights. We believe that the requirement of section
216(h)(2)(A) to apply State law will be satisfied if we apply the same
substantive standard as a State court would apply to determine
paternity.
Legally Adopted Child
The provisions for paying benefits to children of an insured
individual were added to the Act by the Social Security Act Amendments
of 1939 (Public Law 76-379). Our policy for determining whether an
applicant qualifies as the ``child'' of an insured individual has
always been that we apply State law on inheritance rights to determine
the status under the Act of a natural child, i.e., biological child,
and State law on adoption to determine the status of a child legally
adopted by the insured. To avoid any uncertainty about our policy, we
are proposing to amend our regulations to state more clearly how we
determine a child's status as an individual's natural child or adopted
child.
Section 202(d)(1) of the Act provides for benefits to a child as
defined in section 216(e) of the Act. Section 216(e) states, in part,
that the term ``child'' means the child or legally adopted child of an
individual. Section 216(e) further states the requirements for a person
to be deemed the legally adopted child of a deceased individual.
Section 216(e) thus distinguishes between a natural child and an
adopted child.
Further, section 216(h)(2)(A) provides that the status of an
applicant for benefits as a child (as opposed to a legally adopted
child, a stepchild, or other type of individual who can qualify under
section 216(e) of the Act as a ``child'' for purposes of section 202(d)
of the Act) is determined by applying the law on devolution of
intestate personal property that would be applied by the courts in the
State of the insured individual's domicile. This is a test for the
status of a natural child only.
[[Page 4496]]
The legislative history of sections 216(e) and 216(h)(2)(A) shows
that Congress intended us to use section 216(h)(2)(A) to determine the
status of natural children only. Section 209(k), enacted in 1939,
provided the first definition of ``child'' by stating in part that the
term means the child of an individual, the stepchild of an individual,
and a child legally adopted by an individual before he or she attained
age 60 and prior to the beginning of the twelfth month before the month
in which he or she died. Section 209(m), also enacted in 1939,
contained language that is the same as the present section 216(h)(2)(A)
and described how we determine whether an applicant is the ``child'' of
the insured individual.
Then in 1946, Congress amended section 209(k) to allow some
children adopted by individuals aged 60 or older to receive benefits.
Congress' explanation of the amended section 209(k) was that under
existing provisions of the Act, a stepchild or an adopted child is not
a ``child'' for benefit purposes unless certain conditions are met.
H.R. Rep. No. 2526, 79th Cong., 2d Sess. 26 (1946); S. Rep. No. 1862,
79th Cong., 2d Sess. 34 (1946). Thus, since the first provision for
paying benefits to children of an insured worker, there has been a
clearly defined distinction between natural children and adopted
children and clearly defined conditions for determining the status of
an adopted child, which conditions are not affected by section
216(h)(2)(A).
Along with the structure of the Act and the legislative history of
provisions defining ``child,'' we have consistently interpreted the
State intestacy law provisions of section 216(h)(2)(A) as not applying
to children legally adopted by the insured individual. Our first
regulation on the status of a child was published in 1940. That
regulation defined a ``child'' as a son or daughter (by blood) of a
wage earner and then went on to define ``adopted children.'' 5 FR 1880
(May 21, 1940). We have maintained that position from the first
regulation to the present. In the present Sec. 404.354, we state that a
child may be related to the insured as a natural child, legally adopted
child, stepchild, grandchild, stepgrandchild, or equitably adopted
child. In Sec. 404.355, we explain the conditions for eligibility as a
natural child, which include applying State inheritance law, and in
Sec. 404.356 we state the requirement for eligibility as a legally
adopted child.
In these proposed regulations, we are amending Sec. 404.356 to
explicitly provide that we will determine an applicant's status as a
legally adopted child by applying the adoption laws of the State or
foreign country where the adoption took place.
Addition of Northern Mariana Islands
Further, we are proposing to add the Northern Mariana Islands to
the names of entities whose laws we will use to determine a child's
relationship to the insured individual, depending on his or her
permanent home.
Electronic Versions
The electronic file of this document is available on the Federal
Bulletin Board (FBB) at 9:00 a.m. on the date of publication in the
Federal Register. To download the file, modem dial (202) 512-1387. The
FBB instructions will explain how to download the file and the fee.
This file is in WordPerfect and will remain on the FBB during the
comment period.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these proposed rules do not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
were not subject to OMB review.
Regulatory Flexibility Act
We certify that these proposed regulations will not have a
significant economic impact on a substantial number of small entities
because they affect only individuals. Therefore, a regulatory
flexibility analysis as provided in Public Law 96-354, the Regulatory
Flexibility Act, is not required.
Paperwork Reduction Act
These proposed regulations impose no additional reporting or
recordkeeping requirements necessitating clearance by OMB.
(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social
Security-Disability Insurance; 96.002 Social Security-Retirement
Insurance; 96.004 Social Security-Survivors Insurance)
List of Subjects in 20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-age, Survivors and Disability Insurance, Reporting and
recordkeeping requirements, Social security.
Dated: January 17, 1997.
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set out in the preamble, we are proposing to amend
subpart D of part 404 of chapter III of title 20 of the Code of Federal
Regulations as set forth below.
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart D--[Amended]
1. The authority citation for subpart D of part 404 continues to
read as follows:
Authority: Secs. 202, 203 (a) and (b), 205(a), 216, 223, 225,
228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402,
403 (a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).
2. Section 404.354 is revised to read as follows:
Sec. 404.354 Your relationship to the insured.
You may be related to the insured person in one of several ways and
be entitled to benefits as his or her child, i.e., as a natural child,
legally adopted child, stepchild, grandchild, stepgrandchild, or
equitably adopted child. For details on how we determine your
relationship to the insured person, see Secs. 404.355 through 404.359.
3. Section 404.355 is revised to read as follows:
Sec. 404.355 Who is the insured's natural child?
(a) Eligibility as a natural child. You may be eligible for
benefits as the insured's natural child if one of the following
conditions is met:
(1) You could inherit the insured's personal property as his or her
natural child under State inheritance laws, as described in paragraph
(b) of this section.
(2) You are the insured's natural child and the insured and your
mother or father went through a ceremony which would have resulted in a
valid marriage between them except for a ``legal impediment'' as
described in Sec. 404.346(a).
(3) You are the insured's natural child and your mother or father
has not married the insured, but the insured has either acknowledged in
writing that you are his or her child, been decreed by a court to be
your father or mother, or been ordered by a court to contribute to your
support because you are his or her child. If the insured is deceased,
the acknowledgment, court decree, or court order must have been made or
issued before his or her death. To determine whether the conditions of
entitlement are met throughout the first month as stated in
Sec. 404.352(a), the written acknowledgment, court decree, or court
order will be considered to have occurred on the first day of the month
in which it actually occurred.
[[Page 4497]]
(4) Your mother or father has not married the insured but you have
evidence other than the evidence described in paragraph (a)(3) to show
that the insured is your natural father or mother. Additionally, you
must have evidence to show that the insured was either living with you
or contributing to your support at the time you applied for benefits.
If the insured is not alive at the time of your application, you must
have evidence to show that the insured was either living with you or
contributing to your support when he or she died. See Sec. 404.366 for
an explanation of the terms ``living with'' and ``contributions for
support.''
(b) Use of State Laws--(1) General. To decide whether you have
inheritance rights as the natural child of the insured, we use the law
on inheritance rights that the State courts would use to decide whether
you could inherit a child's share of the insured's personal property if
the insured were to die without leaving a will. If the insured is
living, we look to the laws of the State where the insured has his or
her permanent home when you apply for benefits. If the insured is
deceased, we look to the laws of the State where the insured had his or
her permanent home when he or she died. If the insured's permanent home
is not or was not in one of the 50 States, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, or the Northern Mariana
Islands, we will look to the laws of the District of Columbia. For a
definition of permanent home, see Sec. 404.303. For a further
discussion of the State laws we use to determine whether you qualify as
the insured's natural child, see paragraphs (b)(3) and (b)(4) of this
section. If these laws would permit you to inherit the insured's
personal property as his or her child, we will consider you the child
of the insured.
(2) Standards. We will not apply any State inheritance law
requirement that an action to establish paternity must be taken within
a specified period of time measured from the worker's death or the
child's birth, or that an action to establish paternity must have been
started or completed before the worker's death. If applicable State
inheritance law requires a court determination of paternity, we will
not require that you obtain such a determination but will decide your
paternity by using the standard of proof that the State court would use
as the basis for a determination of paternity.
(3) Insured is living. If the insured is living, the inheritance
laws that we use are those that are in effect in the State where the
insured has his or her permanent home when we make our final decision
on your application for benefits. We will apply the version of State
law in effect when we make that decision. If you do not qualify as a
child of the insured under that version of State law, we look at all
versions of State law that were in effect from the first month for
which you could be entitled to benefits up until the time of our final
decision and apply the version of State law that is most beneficial to
you.
(4) Insured is deceased. If the insured is deceased, we apply the
law of the State where the insured had his or her permanent home when
he or she died. We apply the version of State law in effect when we
make our final decision on your application for benefits. If you do not
qualify as a child of the insured under that version of State law, we
will apply the version of State law that was in effect at the time the
insured died, or any version of State law in effect from the first
month for which you could be entitled to benefits up until our final
decision on your application. We will apply whichever version is most
beneficial to you. We use the following rules to determine the law in
effect as of the date of death:
(A) If a State inheritance law enacted after the insured's death
indicates that the law would be retroactive to the time of death, we
will apply that law; or
(B) If the inheritance law in effect at the time of the insured's
death was later declared unconstitutional, we will apply the State law
which superseded the unconstitutional law.
4. Section 404.356 is amended by adding a sentence at the end to
read as follows:
Sec. 404.356 Who is the insured's legally adopted child?
* * * We apply the adoption laws of the State or foreign country
where the adoption took place, not the State inheritance laws described
in Sec. 404.355, to determine whether you are the insured's legally
adopted child.
[FR Doc. 97-2315 Filed 1-29-97; 8:45 am]
BILLING CODE 4190-29-P
