[Federal Register Volume 63, Number 208 (Wednesday, October 28, 1998)]
[Rules and Regulations]
[Pages 57590-57594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28707]
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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: Final rules.
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SUMMARY: These final regulations revise our rules on determining
whether a natural child has inheritance rights under appropriate State
law and therefore may be entitled to Social
[[Page 57591]]
Security benefits as the child of an insured worker. Specifically, they
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. They also clarify our current rule on
determining an applicant's status as a legally adopted child of an
insured individual.
EFFECTIVE DATE: These regulations are effective November 27, 1998.
FOR FURTHER INFORMATION CONTACT: Lois Berg, Legal Assistant, Office of
Process and Innovation Management, Social Security Administration, 6401
Security Boulevard, Baltimore, MD 21235, (410) 965-1713 or TTY (410)
966-5609. For information on eligibility, claiming benefits, or
coverage of earnings, call our national toll-free number, 1-800-772-
1213 or TTY 1-800-325-0778.
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 of Social Security (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 a child born out of
wedlock 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
v. Heckler, 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 our 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. (We are publishing a notice today
to rescind AR 86-17(9) effective with the effective date of these final
regulations.)
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 amending 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 a surviving
child born out of wedlock. Therefore, when the insured is deceased, we
will determine the status of such a 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 final 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 rule in
Sec. 404.354(b) provided that the Commissioner will apply the
inheritance law that was in effect when the child's claim was filed. We
are amending 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 within which 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 final regulations that we
will not apply a State's time limits within 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 a
child born out of wedlock 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 are revising
this policy by stating in these rules that, regarding 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 under intestate inheritance laws, 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
[[Page 57592]]
obtain a State court's determination, we will be guided by such
determination 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 amending 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.
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. 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 the adopting individual
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 final 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 adding 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.
Comments on Notice of Proposed Rulemaking (NPRM)
On January 30, 1997, we published proposed rules in the Federal
Register at 62 FR 4494 and provided a 60-day period for interested
individuals to comment. We received three letters with comments. One
commenter said the proposed regulations' use of the law most beneficial
to the interests of the child is a positive change which is consistent
with the Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 (Public Law 104-193). Following are summaries of the other
two comments and our responses to them.
Comment: One commenter suggested that a mechanism be implemented
whereby SSA would notify the State Child Support Enforcement agency of
all paternity determinations we make.
Response: A determination of paternity made by SSA is not the
equivalent of an administrative order of paternity required by the
States. Paternity determinations made by SSA are used only for SSA
purposes.
Comment: One commenter was concerned that proposed Sec. 404.355
might be interpreted such that a child born out of wedlock for whom
paternity was not established while the insured was alive would not
qualify as the child of the insured. The commenter suggested that we
add clarifying language to Sec. 404.355(a)(3) to address this issue.
Response: We have revised Sec. 404.355(a) to clarify that
paragraphs 1 through 4 are alternative means of establishing a child's
status under the Act. As revised, subsection (a) provides that a child
may be eligible for benefits as the insured's natural child if the
child qualifies under any of the four paragraphs.
After considering the comments on the proposed regulations, we have
revised Sec. 404.355(a), as discussed in the response to the public
comment. We
[[Page 57593]]
have also revised paragraph (b)(3) of Sec. 404.355 to clarify the rule
on selecting the State law that we apply in determining the
relationship between a child and an insured individual when the insured
is alive at the time the child applies for benefits on the insured's
earnings record. As revised, paragraph (b)(3) provides that we
determine the State where the insured individual had his or her
permanent home when the child applies for child's insurance benefits,
and we apply the law of that State. In addition, we have made several
minor, nonsubstantive revisions to the rules. With these exceptions, we
are publishing the proposed regulations unchanged as final regulations.
Regulatory Procedures
Regulatory Flexibility Act
We certify that these final 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 the Regulatory Flexibility Act, as amended, is not
required.
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these final rules do not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
were not subject to OMB review.
Paperwork Reduction Act
These final regulations impose no additional reporting or
recordkeeping requirements necessitating clearance by OMB.
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.
(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)
Dated: October 20, 1998.
Kenneth S. Apfel,
Commissioner of Social Security.
For the reasons set out in the preamble, we are amending 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 any 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.
(4) Your mother or father has not married the insured but you have
evidence other than the evidence described in paragraph (a)(3) of this
section 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, we apply the law
of the State where the insured has his or her permanent home when you
file your application for benefits. We apply the version of State law
in effect when we make our final decision on your
[[Page 57594]]
application for benefits. 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:
(i) 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
(ii) 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. 98-28707 Filed 10-27-98; 8:45 am]
BILLING CODE 4190-29-P
