Paternity and children’s Social Security benefits

Children can often receive Social Security benefits if a parent is disabled or deceased. I have previously written about these kind of Social Security auxiliary and survivors benefits. However, there are times when proving paternity becomes an issue. Here are a couple of situations where this comes up:

  • Parents separate and, the non-custodial father becomes disabled (potential auxiliary benefits based on a disabled parent).
  • Common law marriages with a disabled husband or wife splitting with the father denying paternity (potential auxiliary benefits based on a disabled parent).
  • Father dies (potential survivors benefits based on a deceased parent) but Social Security denies the claim because there is not enough evidence proving paternity.

Note: most of the examples deal with paternity. However, the same laws apply if there is a question  of who the mother is.

Also, I am focusing on resolving paternity without a court ordered DNA test or exhumation.

Social Security has regulations describing when a child is a “natural child” of the parent (full text below). Note: for adopted children, check out this article.

According to Social Security’s regulations, a child may be eligible to receive benefits from the insured if:

  1. The child could inherit under intestacy laws of the state where the disputed parent had permanent residence. Intestacy laws are the state laws describing how property is distributed if an individual dies without a will. These laws often differ from state to state.
  2. Mother and father went through a good faith marriage ceremony but there was some problem keeping the marriage from being legal.
  3. The father acknowledged the child in writing as his child. For example: a will, a soldier’s application for an allotment, an insurance application, even in a letter. See Social Security Handbook Section 1709. See also POMS GN 00306.105.
  4. A court has ordered that the individual is the parent. See POMS GN 00306.110.
  5. A court has ordered that the individual has to pay support as the parent.
  6. “Other evidence” supporting paternity. This can be any other evidence which shows who the child’s parent is. However, if you are relying on “other evidence” to prove paternity, you must also show that the disputed parent was either living with the child or contributing to the child’s support at the time the child applied for benefits. If the disputed parent has died,  the child must show the disputed parent was either living with the child or contributing to the child’s support when he or she died.

Keep in mind that these requirements all start off with, “you are the insured’s natural child.” If someone can disprove paternity, a plain reading of the regulations suggests that the child might not be eligible for any benefits (even if you could meet the other requirements).

The easiest way to prove paternity is if you have written acknowledgment of the child from the disputed parent or a court order. If you do not have either, things get much tougher. However, you may have “other evidence” of the disputed parent’s paternity. According to the Social Security Handbook Section 1712 (See also POMS GN 00306.125), this includes:

  • Hospital, religious, or school records;
  • A court order or decree that [does not meet all of the following requirements in §404.355(a)(3) but otherwise supports paternity].
  • A statement from the attending physician, relative, or other person who knows the child’s relationship to you, including the basis for that knowledge; and
  • Evidence that you and the child’s mother were living together at the time of the child’s conception.

These are just examples. “Other evidence” can be anything that shows paternity, including videos, birthday cards, even school registration or permission forms. Use your imagination here.

Ultimately though, you may have to contact a family law and/or probate attorney in the state of the disputed parents permanent residence (either at the time the application was filed – if the disputed parent is living, or at the time of the disputed parents death – if deceased) to determine the state intestacy laws.

For an idea of what you may be facing, take a look at Social Security’s list of state intestacy laws here (scroll half way down the page to the section titled “State Intestacy Laws”). Colorado’s intestacy laws are listed at POMS GN 00306.435. However, state laws are subject to change and the POMS may not have the most current version.

Here is the Social Security regulation re-formated for easier reading:

§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 §404.346(a).

[Per §404.346(a)] A legal impediment includes only an impediment which results because a previous marriage had not ended at the time of the ceremony or because there was a defect in the procedure followed in connection with the intended marriage. For example, a defect in the procedure may be found where a marriage was performed through a religious ceremony in a country that requires a civil ceremony for a valid marriage. Good faith means that at the time of the ceremony you did not know that a legal impediment existed, or if you did know, you thought that it would not prevent a valid marriage.

(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 §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 §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 §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 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.

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Disclaimer: This is NOT legal advice. This site provides general information about Social Security disability cases in Colorado. To discuss your particular circumstances, please contact a lawyer in your area. Please review the full disclaimer .

About Tomasz Stasiuk

Tomasz Stasiuk is a Colorado Springs Social Security disability lawyer and the founding attorney of the Stasiuk Firm - a law firm specializing in Social Security disability cases in Colorado. Follow Tomasz Stasiuk on Google and Twitter

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  • Lisa Bullock

    It is not fair how this process works…how is a family supposed to survive when there is only one working parent in a house – we have gone through absolutely every fund we ever had to survive – now we are down to nothing, and our family can only help for so long – they are tapped out too. This process is making it emotionally harder on the patient – the disabled person – how fair is that? We have done everything asked of us, we have given every document asked for – what else is there? We have been waiting on this appeal leg of the process for over 7 months, and the whole process a year and a half!

  • http://www.findlostlifeinsurancepolicy.com Admin

    While most people know to check with the Social Security Administration for survivor benefits they forget to also look for life insurance benefits. Often a parent or spouse will have had a policy on their own or through their employer but the benefits only get paid-out if the insurance company is contacted about the death. All survivors should do a search for any lost or old life insurance benefits.

  • Roberta

    I am over 50 disabled, and never worked outside the home. My husband is disabled. Can I draw on his social security benifits right now, before I turn 62?

  • http://www.StasiukFirm.com TomaszStasiuk

    A disabled individual may be eligible to receive Social Security disability benefits through the Supplemental Security Income program. However if an individual does not qualify for that, there is the possibility of qualifying for auxiliary benefits under the spouses earnings: http://www.socialsecurityinsider.com/2009/02/disabled-husband-or-wife-you-may-be-entitled-to-social-security-benefits/

  • Charitybussell

    my cousin and i had a bad wreck back in 2007 and she did now started her ssi and her husband left her can her kids get a check too she cant work or anything

  • http://www.Planet10Tech.com TomaszStasiuk

    Under the Social Security system, children of a disabled parent may be eligible to receive what is called “auxiliary benefits” when a parent is disabled. http://www.socialsecurityinsider.com/category/benefits/auxiliary-benefits-benefits/

    However, auxiliary benefits only apply when an individual is receiving Social Security Disability Insurance benefits (SSDI). There are no auxiliary benefits under the Supplemental Security Income (SSI) program.

    Nonetheless, I would encourage your cousin to contact Social Security to see if her children might be eligible under her specific circumstances.

    Good luck!

  • Michele_lopez91709

    social security goes until the child reaches 18..or graduates from high scool. If he graduates early-it is until he is 18…if he graduates late-it is until he graduates. There is one amount of benefit that is split between the children. So, if the benfit is $1000 and he has 2 children-each get $500..sound simple..if he has 1 child, that child gets the full benefit. As the children graduate-that child’s benefit is put back in and split between the remaining children.
    I found out that hard way though, who is considered a dependent. My ex had been remarried to a woman who did not work and who had a 12 year old. Our benefit was given to that child too, even though he was not his natuarl child and had never been adopted etc…he was still considered a dependent. The mother did not work, so she received an equal share too for herself until her child turned 16-then her portion was put back in and split between the children. I found this so crazy and difficult to believe!! But, it was true. He had know this woman and her child less than a year…they received equal benefit and also more. I was told a the local social security office that I should be glad…at least her California welfare was being reduced by the amount social security was sending her…why would that make me happy? I had not received chaild support and now that he had died, we were having to split a benefit this way…just one more reason why this country has troubles….

  • http://twitter.com/xanskinner Alexandria Skinner

    Great post — well written and very helpful information! Soc sec is not accepting fact of name on birth certificate as evidence of paternity and demanding a paternity test, but it sounds like if probate court will establish as an heir, that’s the shortest route from point A to point B. Again, thanks for summarizing.

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