PR: Title II Regional Chief Counsel Precedents
TN 10 (07-16)
A. PR 16-100 Whether Iowa will Recognize a Marriage in the Netherlands for Surviving Mother’s Benefit
Date: March 17, 2016
1. Syllabus
The issue is whether under Iowa intestacy law, children born during a same-sex marriage are recognized as the non-birthing parent’s children and are entitled to inherit from the non-birthing parent. The number holder (NH) in this case married W~, a Dutch citizen in V~, Netherlands in May 2007. W~ gave birth to two children during the marriage: N~ was born a few weeks after the couple married in the same month and K~ was born in July 2010. Both children are Dutch citizens. The children’s birth certificates show W~ as the mother and no one is listed as the father. The NH did not adopt the children and there is no evidence that the NH had a biological relationship with the children. In February 2012, the family moved to the United States and lived in W~, Iowa until the NH’s death in July 2015. In August 2015, W~ filed an application for the children to receive child’s insurance benefits (CIB) on the NH’s record. The Act’s definition of child is met if the applicant is able to inherit from the insured under state law if the insured were to die without leaving a will. Iowa was the NH’s state of domicile at the time of her death. Under Iowa law, children born to married lesbian couples are presumed to be the children of the non-birthing spouse and are entitled to inherit from the non-birthing parent. Therefore, N~ and K~ are the NH’s children under the Act and deemed dependent and thus, entitled to CIB on the NH’s record.
2. Opinion
Issues Presented
Whether, under Iowa law, children born during a lesbian marriage are recognized as the non-birthing parent’s children and are entitled to inherit from the non-birthing parent under Iowa intestacy law.1
Factual Background
On May XX, 2007, C~, the deceased numberholder (the NH), a United States citizen, married W~ (the mother), a Dutch citizen, in V~, Netherlands. The mother gave birth to two children (the children) during the marriage. On May XX, 2007, N~ was born in T~, Netherlands.2 On July XX, 2010, K~ was born in T~, Netherlands. Both children are Dutch citizens. The children’s birth certificates show the mother as the mother and no one is listed as the father. The NH did not adopt the boys. There is no evidence that the NH had a biological relationship with the children.
In February 2012, the family moved to the United States and lived in W~, Iowa, until the NH’s death on July XX, 2015. On August XX, 2015, the mother filed for surviving mother with child-in-care benefits and a lump-sum death payment (LSDP) on the NH’s record.3 The same day, the children applied for surviving child’s benefits also on the record of the NH. Around August XX, 2015, the mother and children returned to the Netherlands.
Analysis4
Under the Social Security Act (Act), a child of an insured worker who is dependent5 on the insured may receive auxiliary child’s insurance benefits, including surviving child’s benefits, on the record of that worker. See 42 U.S.C. § 402(d) (2014); 20 C.F.R. §§ 404.350(a)(1), 404.354 (2014). In relevant part, the Act defines child as the child or legally adopted child of an individual. See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. §§ 404.350, 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). The Act’s definition of child is met if the applicant is able to inherit from the insured under state law if the insured were to die without leaving a will. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404. 355(a)(1), (b); Capato, 132 S. Ct. at 2028. In determining whether an applicant should be considered the child of an insured individual, the Commissioner applies the law governing intestate transfers in the state where the insured individual was domiciled at the time of her death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), 404.355(b) (apply state law where insured had permanent home when she died); POMS GN 00306.001 (determining which state law applies when insured individual has died). Here, the state of domicile was Iowa, where the NH had her true, fixed, and permanent home at the time of her death. See 20 C.F.R. § 404.303 (definition of permanent home); POMS GN 00305.001 (determining domicile).
Under Iowa law, a child may inherit if he or she is the issue of the decedent. See Iowa Code Ann. §§ 633.219, 633.3. Children born in wedlock are presumed to be the “legitimate issue of the marital spouse” and are entitled to the rights of support and inheritance. See Gartner v. Iowa Dep’t of Public Health, 830 N.W.2d 335, 347 (Iowa 2013); Heath v. Heath, 269 N.W. 761, 761 (Iowa 1936) (noting that the presumption of paternity protects a child’s inheritance rights); Ryke v. Ream, 234 N.W. 196, 197 (Iowa 1931) (The presumption of paternity secures the right of inheritance to any child begotten during wedlock.); see also Iowa Code Ann. § 598.31 (“Children born to the parties, or to the wife, in a marriage relationship which may be terminated or annulled pursuant to the provisions of this chapter shall be legitimate as to both parties, unless the court shall decree otherwise according to the proof.”); Iowa Code Ann. § 252A.3(4) (“A child or children born of parents who, at any time prior or subsequent to the birth of such child, have entered into a civil or religious marriage ceremony, shall be deemed the legitimate child or children of both parents, regardless of the validity of such marriage.”).
In Gartner, the Iowa Supreme Court considered whether the presumption-of-parentage statute, Iowa Code § 144.13(2) (2011), applied to married lesbian couples. See Gartner, 830 N.W.2d at 340-41. The Iowa Department of Public Health had refused to identify the non-birthing spouse as a parent on the birth certificate of a child born in wedlock to the lesbian spouses. See Gartner, 830 N.W.2d at 340-41. The Court concluded that, under the equal protection clause of the Iowa Constitution, the marital parentage presumption also applied to married lesbian couples and the non-birthing spouse was entitled to be listed as a parent on the birth certificates of children born during the marriage. See id. at 353-54. Notably, the Gartner court twice indicated that the presumption of parentage secures the right of inheritance of children born in wedlock:
Specific to Iowa, our court long ago articulated the principal bases for presuming a child born in wedlock is the legitimate issue of the marital spouses: “This rule is founded on decency, morality, and public policy. By that rule, the child is protected in his inheritance and safeguarded against future humiliation and shame.”
Gartner, 830 N.W.2d at 347 (quoting Heath, 269 N.W. at 761 (quoting Craven v. Selway, 246 N.W. 821, 823 (Iowa 1933), overruled on other grounds by In re Marriage of Schneckloth, 320 N.W.2d 535, 537 (Iowa 1982))); see also id. at 345. Thus, Gartner establishes that children born to married lesbian couples are presumed to be the children of the non-birthing spouse and are entitled to inherit from the non-birthing parent under Iowa intestacy law. See Gartner, 830 N.W.2d at 340, 345, 347.
While Iowa law presumes that the children are the NH’s children, the children would not be considered the NH’s children under Dutch law. Although the Netherlands allows same-sex marriage, it has not accorded same-sex spouses the same rights with regard to marital parentage presumptions. Historically, spouses in a same-sex marriage were not by operation of law the legal parents of a child born during marriage. While current law grants the non-birthing female spouse legal status as a co-mother in cases of unknown sperm donations, this law does not apply to children born before April 1, 2014. For children born before April 1, 2014, the non-birthing female spouse must have either adopted the children or acknowledged the children at the Register of Births, Deaths, Marriages, and Registered Marriages or before a notary public. Here, the NH did not adopt the children, and there is no evidence that the NH complied with the acknowledgement provisions set forth in Dutch statutes.6
While there is a conflict of law concerning the children’s status under Iowa and Dutch law, an Iowa court would look to its own law to determine the children’s status as heirs and rights of inheritance. In Pazzi v. Taylor, the Supreme Court of Iowa refused to apply the law of another jurisdiction to determine the status of an heir and held that where the decedent was domiciled in Iowa, its “statutes of descent and distribution govern the determination of those persons who are entitled to inherit from him.” Pazzi v. Taylor, 342 N.W.2d 481, 483 (Iowa 1984) (citations omitted); Mohr v. Langerman, 858 N.W.2d 36 (Iowa Ct. App. 2014) (In a probate action involving no Iowa residents, the court refused to apply another jurisdiction’s law based on the “most significant relationship” test outlined in Restatement (Second) Conflict of Laws § 287 (1971)7 and instead applied Iowa law to determine decedent’s biological child’s status as an heir and rights of inheritance).
While the children are not the biological children of the NH, the NH’s parentage is presumed as they were born in wedlock between the NH and the mother. Thus, the children are entitled to inherit from the NH under Iowa intestacy law. Under section 416(h)(2)(A) of the Act, they are the NH’s children and deemed dependent. Thus, you can find they are entitled to child’s insurance benefits on the NH’s record.
As noted above, the mother filed an application for surviving mother’s benefits. Agency guidance, issued on February XX, 2016, provides instructions for processing benefits for a same-sex surviving spouse who has the child of a deceased numberholder in her care. See POMS GN 00210.420. The mother’s application for surviving mother’s benefits may be processed according to these instructions.
Conclusion
For the reasons outlined above, the children are entitled to benefits on the NH’s record as her children.
Kristi A. Schmidt
Chief Counsel, Region VII
By Assistant Regional Counsel
B. PR 16-074 State of Iowa – Whether a Child Can Receive Benefits on the Record of His Non-Biological Parent Married to the Child’s Biological Mother (Same-Sex Marriage)
Date: January 28, 2016
1. Syllabus
The number holder (NH) and D~ married in Iowa in August 2010. While the couple was residing in Iowa, the claimant, J~ was born in September 2013. The claimant is the biological child of D~ but the birth certificate lists the NH as the other parent. D~ filed for benefits on the NH’s record in July 2014 for J~. Since the NH was domiciled in Iowa at the time of J~’s application, we look to Iowa intestacy law. Under Iowa law, a child may inherit if he or she is the issue of the decedent. Children born in wedlock are presumed to be the “legitimate issue of the marital spouse” and are entitled to the rights of support and inheritance. While J~ is not the biological child of the NH, the NH’s parentage is presumed as J~ was born in wedlock between the NH and D~. Consistent with Iowa law, the parent-child relationship is also established as the NH is listed as a parent on J~’s birth certificate. Thus, J~ is entitled to inherit from the NH under Iowa intestacy law. Under section 416(h)(2)(A) of the Act, J~ is the NH’s child and deemed dependent, therefore entitled to child’s insurance benefits on the NH’s record.
2. Opinion
Issue Presented
You asked whether minor child J~(J~), the biological child of D~ (D~), is entitled to child’s insurance benefits on the Social Security record of K~ (NH). The NH has been married to D~ since before J~’s birth, and the NH is identified as a parent on J~’s birth certificate. The family resides together in Iowa.
Factual Background
On August XX, 2010, the NH and D~ were married in S~, W~ County, Iowa. On the marriage certificate, no gender is noted for the NH and D~ is listed as female. The couple resided in S~, Nebraska.
According to information you provided, the couple moved to Iowa in March 2011. J~ was born on September XX, 2013.8 He is the biological child of D~. J~’s birth certificate, issued October XX, 2013, lists the NH as his other parent. At the time of his birth, J~’s parents resided in S~, Iowa.
The NH applied for disability insurance benefits in August 2007. The agency determined that the NH became entitled to benefits in August 2006. D~ protectively filed for benefits for J~ on NH’s record on July XX, 2014.
Analysis
Under the Social Security Act (Act), a child of an insured worker who is dependent9 on the insured may receive auxiliary child’s insurance benefits on the record of a worker who receives disability or retirement benefits. See 42 U.S.C. § 402(d) (2014); 20 C.F.R. §§ 404.350(a)(1), 404.354 (2014). In relevant part, the Act defines child as the child or legally adopted child of an individual. See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. §§ 404.350, 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). The Act’s definition of child is met if the applicant is able to inherit from the insured under state law if the insured were to die without leaving a will. See id. § 416(h)(2)(A); 20 C.F.R. §§ 404. 355(a)(1), (b); Capato, 132 S. Ct. at 2028. In determining whether an applicant should be considered the child of an insured individual, the Commissioner applies the law governing intestate transfers in the state where the insured was domiciled at the time of the child’s application. See 42 U.S.C. § 416(h)(2)(A). Here, Iowa intestacy law applies because the NH was domiciled in Iowa at the time of J~’s application.
Under Iowa law, a child may inherit if he or she is the issue of the decedent. See Iowa Code Ann. §§ 633.219, 633.3. Children born in wedlock are presumed to be the “legitimate issue of the marital spouse” and are entitled to the rights of support and inheritance. See Gartner v. Iowa Dep’t of Public Health, 830 N.W.2d 335, 347 (Iowa 2013); Heath v. Heath, 269 N.W. 761, 761 (Iowa 1936) (noting that the presumption of paternity protects a child’s inheritance rights); Ryke v. Ream, 234 N.W. 196, 197 (Iowa 1931) (The presumption of paternity secures the right of inheritance to any child begotten during wedlock.); see also Iowa Code Ann. § 598.31 (“Children born to the parties, or to the wife, in a marriage relationship which may be terminated or annulled pursuant to the provisions of this chapter shall be legitimate as to both parties, unless the court shall decree otherwise according to the proof.”); Iowa Code Ann. § 252A.3(4) (“A child or children born of parents who, at any time prior or subsequent to the birth of such child, have entered into a civil or religious marriage ceremony, shall be deemed the legitimate child or children of both parents, regardless of the validity of such marriage.”).
In Gartner, the Iowa Supreme Court considered whether the presumption-of-parentage statute, Iowa Code § 144.13(2) (2011), applied to married lesbian couples. See Gartner, 830 N.W.2d at 340-41. The Iowa Department of Public Health had refused to identify the non-birthing spouse as a parent on the birth certificate of a child born in wedlock to the lesbian spouses. See Gartner, 830 N.W.2d at 340-41. The Court concluded that, under the equal protection clause of the Iowa Constitution, the marital parentage presumption also applied to married lesbian couples and the non-birthing spouse was entitled to be listed as a parent on the birth certificates of children born during the marriage. See id. at 353-54. Notably, the Gartner court twice indicated that the presumption of parentage secures the right of inheritance of children born in wedlock:
Specific to Iowa, our court long ago articulated the principal bases for presuming a child born in wedlock is the legitimate issue of the marital spouses: “This rule is founded on decency, morality, and public policy. By that rule, the child is protected in his inheritance and safeguarded against future humiliation and shame.”
Gartner, 830 N.W.2d at 347 (quoting Heath, 269 N.W. at 761 (quoting Craven v. Selway, 246 N.W. 821, 823 (Iowa 1933), overruled on other grounds by In re Marriage of Schneckloth, 320 N.W.2d 535, 537 (Iowa 1982))); see also id. at 345. Thus, Gartner establishes that children born to married lesbian couples are presumed to be the children of the non-birthing spouse and are entitled to inherit from the non-birthing parent under Iowa intestacy law. See Gartner, 830 N.W.2d at 340, 345, 347.
While J~ is not the biological child of the NH, the NH’s parentage is presumed as J~ was born in wedlock between the NH and D~. Consistent with Iowa law, the parent-child relationship is also established as the NH is listed as a parent on J~’s birth certificate. Thus, J~ is entitled to inherit from the NH under Iowa intestacy law. Under section 416(h)(2)(A) of the Act, J~ is the NH’s child and deemed dependent. Accordingly, you can find he is entitled to child’s insurance benefits on the NH’s record.
Conclusion
For the reasons outlined above, J~ is entitled to benefits on the NH’s record as her child.
Rhonda J. Wheeler
Deputy Chief Counsel, Region VII
By Assistant Regional Counsel
Footnotes:
The request for legal opinion asked whether the agency would recognize a same-sex marriage solemnized in the Netherlands on May XX, 2007. Since the submission of the request, the agency has issued guidance stating that it would recognize the marriage as valid. See Program Operations Manual System (POMS) GN 00210.006.
This legal opinion assumes that the NH and the mother used an anonymous sperm donor to conceive the children.
On February 7, 2016, the agency updated same-sex relationship instructions, which allowed for the processing of all open LSDP claims by recognizing same-sex marriage for benefit purposes as of the date of the marriage. See POMS GN 00210.002 and POMS GN 00210.600. Accordingly, the mother’s application for the LSDP has been processed.
We note that our discussion of the law of the Netherlands is based in part on an opinion we received from the Library of Congress.
An applicant who satisfies the requirements of section 416(h)(2)(A) of the Act is also deemed dependent upon the insured individual. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her . . . .”); Social Security Ruling 77-2c (“[W]here state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life and at his death.”).
The mother advised agency personnel that there was never a legal adoption and, under Dutch law, when the father is unknown, both female spouses get parental authority automatically. Since January 1, 2002, same-sex couples share parental authority, which is the right to raise and take care of minor children, for children born during the marriage. Legal parenthood, however, is distinct from the right to exercise parental authority.
While Iowa has adopted the “most significant relationship” approach articulated in the Restatement (Second) Conflict of Laws, it has only applied it in tort and contract litigation. See, e.g., Veasley v. CRST Int’l, Inc., 553 N.W.2d 896, 897 (Iowa 1996) (“We now follow the Restatement [(Second) of Conflict of Laws]’s ‘most significant relationship’ methodology for choice of law issues. The theory behind this approach is that rather than focusing on a single factor, the court of the forum should apply the policy of the state with the most interest in the litigants and the outcome of the litigation.”) (internal quotation marks and citations omitted); Estate of Pigorsch ex rel. Martin v. York Coll., 734 F. Supp. 2d 704, 712 fn.2 (N.D. Iowa 2010) (“While Iowa courts apply Restatement (Second) of Conflicts of Laws § 188 to contract claims, they apply Restatement (Second) of Conflicts of Laws § 145(2) to tort claims.”).
This legal opinion assumes that the NH and D~ used an anonymous sperm donor to conceive J~.
An applicant who satisfies the requirements of section 416(h)(2)(A) of the Act is also deemed dependent upon the insured individual. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her . . . .”); Social Security Ruling 77-2c (“[W]here state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life and at his death.”).