Emerging Issues in Paternity Establishment: Symposium Summary. Appendix: Federal Direct Determination of Parent-Child Relationship

09/17/2007

Determining eligibility for direct federal benefits, such as social security, uses state laws and federal program determinations for parentage, exemplifies the complex relationship between federal social policy and state paternity law. For example, social security benefits are provided to the "child of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual" (42 U.S.C. В§402(d)) Federal social security law has an expansive definition of "child"В  beyond a person's natural and adopted children, 42 U.S.C. В§416(c) includes stepchildren, and grandchild or stepgrandchild.

When considering who qualifies as a "child" the Commissioner of Social Security first looks to the intestate provisions of state inheritance law. If they can inherit, they are considered the decedent's child for purpose of benefits, even if they are not the decedent's biological child. (As to which state law controls, 42 U.S.C. В§416(h)(2) contains choice of law rules that are beyond the scope of this paper.) Saunders ex rel Wakefield v. Apfel, 85 F. Supp. Ed 1275 (M.D. Fla. 1999) provides an interesting example of potential complexities. The U.S. District court found a child qualified for OASDI benefits as the decedent's son, over ruling the agency. The decedent had acknowledged the child on the child's birth certificate and identified him to be his child on an insurance application. Under Florida law that permitted the child to claim a share of the decedent's estate under that state's intestacy laws. The child was awarded benefits even though there had been subsequent paternity litigation and the genetic test results established that he was not the child's biological parent. SSA was bound by Florida's intestacy rather than paternity law.

Every state's intestate law presumes paternity for children born during a marriage. As a result, federal paternity decisions generally involve nonmarital children. State laws vary on whether such children (or children born after decedent's death) are deemed "legitimate". Again, this example is only illustrative of the complexities of federal benefit determinations. (It is interesting to note that when NCCUSL redrafted the Uniform Parentage Act, the drafting committee included members of the estate bar, an attempt to harmonize, at least on a state level paternity and inheritance laws.)

Unlike OASDI, the Longshoreman's and Harbor Worker's Compensation Act, has a more explicit but broader definition of "child" that relies on a state's paternity rather than intestate law. One oft cited case example involves a woman who lived with another man down the road from her husband. She had nine children by her companion; they lived together but she and her husband never divorced. When her husband died, she applied for benefits for all nine children under the Longshoreman's Act. The District Court dismissed her claim, finding quite correctly that none were the decedent's biological children. The Court of Appeals reversed. Under Louisiana law, the husband is presumed to be the father of children born during the marriage. Legitimacy could not be attacked unless the decedent had brought a timely action. Ellis v. Henderson, 204 F.2d 173 (5th Cir. 1953).

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