TN 27 (12-00)

A. Policy — general

GN 00306.400 - GN 00306.680 show a digest of individual State intestacy laws on how a child or parent can be legitimated/acquire inheritance rights, and when each provision is effective.

B. Policy — how SSA applies state intestacy law

1. General

On 11/27/98, amendments to Social Security regulations became effective changing three aspects of SSA's policy on application of State intestacy law in determining child relationship under section 216(h)(2)(A) of the Act. The policies concern:

• choosing the version of State law to apply in death cases;

• State intestacy law time limits (see GN 00306.075B.3.); and

• State court determinations of paternity (see GN 00306.075B.4.).

The policies contained in the regulation apply to claims filed on or after 11/27/98, or pending on that date. ("Pending" means a claim that has not been adjudicated at the initial level or its current level of appeal. See GN 01010.001 for the definition of "adjudication.") In entitling a claimant under these policies, we will give normal benefit retroactivity based on the claimant's application.

2. Which Version of State Law to Apply

a. Life Cases

NOTE: The regulations that became effective on 11/27/98 clarify SSA's policy on choosing the version of State law to apply in life cases. The following is an expanded description of SSA's policy in life cases.

In a life case, SSA applies the State law that is in effect when the child applies for benefits. This means that we look at the versions of State inheritance laws that were in effect from the first month for which the child could be entitled to benefits based on his/her application up to and including the time of our final decision, and apply the version most beneficial to the child.

Use the effective dates in the appropriate State law entry to determine which version of State law applied at a particular time.

b. Death Cases

The regulations that became effective on 11/27/98 changed SSA's policy on choosing the version of State law to apply in death cases. This change is intended to be beneficial to child claimants in cases where the law has been changed since the NH died.

Previously, we applied the version of State law that was in effect at the time the NH died, with the exception of cases adjudicated under the Owens Acquiescence Ruling (see GN 00306.275). For cases adjudicated under the policy contained in the new regulations:

• Apply the version of State law that is in effect when the child's claim is adjudicated (see GN 01010.001 for the definition of "adjudicated").

• If the child does not have inheritance rights under that version of State law (or that version may not enable the earliest possible entitlement date for the child), apply the version of State law that was in effect when the NH died.

• If the child does not have inheritance rights under the version of State law in effect when the NH died (or that version may not enable the earliest possible entitlement date for the child), apply any version of State law in effect from the time the child first could be entitled to benefits based on his/her application until the time the final decision on the claim is made, whichever version is most beneficial to the child.

Use the effective dates in the appropriate State law digest entry to determine which version of State law applied at a particular time. For example, to determine which provision was effective when the NH died, a provision listed as "effective 12/1/97" in the entry would apply if the NH died on or after that date. To determine which provision applied at the time the child could first be entitled, a provision listed as "effective 12/1/97" would apply if the time the child could first be entitled was on or after that date.

NOTE: SSA has not changed how it determines which State's law to apply; we will still apply the law of the State where the NH was domiciled at the time he died. Also, effective with the regulations change on 11/27/98, the Owens Acquiescence Ruling (AR) is rescinded. See GN 00306.275 for background on the Owens AR.

EXAMPLE 1:

The NH dies in 1/99. The child (born in 12/98) files in 9/99 and we are adjudicating the claim in 10/99. The version of State law in effect when the claim is adjudicated is an inheritance rights provision (operating prospectively) that was effective 8/99, under which inheritance rights can be established based on a preponderance of the evidence. The child can qualify under this provision, with a first month of entitlement of 8/99. Since the application has retroactivity to 3/99, we must determine whether there is a more beneficial version of State law that would enable an earlier entitlement date. Since the law in effect at the time of the NH's death had a clear and convincing standard of proof that the child could not meet, and there were no subsequent changes in the law until 8/99, the child cannot be entitled before 8/99.

EXAMPLE 2:

The facts are the same as in example 1, except that the preponderance of the evidence provision that became effective in 8/99 is a legitimating provision, which operates back to the child's birth. In this case, the child's first month of entitlement would be 3/99.

3. State Law Time Limits

The regulations that became effective on 11/27/98 changed SSA's policy on applying State law time limits within which paternity must be established for inheritance purposes. Previously, SSA applied those time limits, which were shown in the appropriate State law digest entries in GN 00306.400 - GN 00306.680. For cases adjudicated under the policy contained in the new regulations, SSA will not apply the following types of time limits: (1) requirements that an action to establish paternity must be taken within a specified period of time measured from the NH's death or the child's birth; and (2) requirements that an action to establish paternity must have been started or completed before the NH's death. The appropriate State law digest entries in GN 00306.400 - GN 00306.680 reflect this policy.

4. State Court Determinations of Paternity

The regulations that became effective on 11/27/98 changed SSA's policy on requiring State court determinations of paternity. Previously, if State intestacy law required such a determination in order for the child to inherit intestate personal property from the NH, SSA required that the claimant must have obtained one. For cases adjudicated under the policy contained in the new regulations, if applicable State inheritance law requires a court determination of paternity, SSA no longer requires that the claimant have obtained such a determination. Instead, the adjudicator will determine paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

The appropriate State law digest entries in GN 00306.400 - GN 00306.680 reflect this policy and indicate the standard of proof that the adjudicator is to apply when determining paternity.

See GN 00306.055 for the effective date of SSA adjudications of paternity under inheritance rights provisions that operate prospectively.

C. Procedure — reopening of disallowed child claims

1. General

To decide if a disallowed child claim can be reopened, follow the rules for reopening in GN 04001.001 - GN 04001.140. To decide if SSA correctly applied State intestacy law in determining an out-of-wedlock child's relationship to the NH, restrict your review to the transmittals for GN 00306.400 - GN 00306.680 dated December 1998 and later. The State law entries in those transmittals represent a complete chronology of each State's intestacy provisions as interpreted by the Regional Chief Counsels. Pay particular attention to the effective date for each provision, as well as the effective date of 11/27/98, which permits SSA to consider alternative versions of State intestacy law in deciding paternity in death cases (see GN 00306.075B.2.b.).

2. Example

a. Facts

• the NH died in 12/75;

• the claimant filed for CDB benefits in 11/94;

• evidence of paternity consisted of statements from friends and relatives that the NH orally acknowledged the claimant as his child;

• the RPOC screen shows that, at the time of the denial, a child born out of wedlock could inherit from his natural father under applicable State intestacy law where death occurred before 01/01/76 only if the natural parents married;

• the NH was not living with or contributing to the child's support and there was no court order of support or paternity for purposes of section 216(h)(3) of the Act;

• benefits were denied in 12/94; and

• in 12/98, the claimant requested that his application be reopened based on a newspaper article reporting a significant liberalization, with possible retroactive effect, in how SSA decides an out-of-wedlock child's entitlement in death cases.

b. Scenario # 1

The applicable State intestacy law entry published in the transmittal dated
12/98 permits the use of clear and convincing evidence to establish paternity where death occurred before 01/01/76 and the claim was adjudicated 01/01/78 or later. Remember, it is immaterial that the provision allowing the use of clear and convincing evidence for deaths before 01/01/76 was not in the POMS when SSA denied the claim. What is controlling is that, under applicable State intestacy law, there was a clear and convincing evidence standard against which evidence could be evaluated for all death cases adjudicated after 12/77. Based on the version of State intestacy law that was retroactive to the month and year the NH died, the 1994 denial may be reopened. The reopening is the result of an error on the face of the evidence—failure to consider all the options for establishing paternity that were available under State intestacy law, not the result of the change in policy affecting which version of State intestacy law to apply in death cases.

c. Scenario #2

The applicable State intestacy law entry published in the transmittal dated
12/98 permits after-death adjudications of paternity effective with deaths occurring or applications for child's benefits filed 06/96 and later. The evidentiary standard for evaluating evidence is clear and convincing. Since an after-death paternity adjudication was not an option at the time of the NH's death and, in 1994, the law in effect at the time of the NH's death was the only law which could be applied in death cases, the denial was correct and cannot be reopened.

However, if the child files a new application on or after 11/27/98 (the effective date allowing SSA to use alternative versions of State intestacy law in death cases), SSA can apply the version of State intestacy law in effect at the time of adjudication. Since the version of State intestacy law allowing the use of clear and convincing evidence to establish paternity after death is in effect at the time of adjudication and the statements of friends and relatives attesting to the NH's oral acknowledgment of paternity constitute clear and convincing evidence in this case, the child can be paid for the full retroactive life of the new application.

NOTE: Several State intestacy law provisions are effective for "claims adjudicated" on or after a specified date. This terminology is used when the highest State court or the Federal Supreme Court declared that a State law was unconstitutional. Any denial under State intestacy law that was made prior to the provision being declared unconstitutional, i.e., prior to the claims adjudicated date, was correct. Only claims denied on or after that date in which SSA did not consider the superseding provision can be reopened.

D. References

• See GN 00306.005 for change of domicile situations.

• See GN 00306.085 for effective date of legitimation.

• See GN 00306.055A.1. for explanation of “I” entry.