Thursday, March 24, 2011

Social Security and Paternity

The Social Security Act permits a child to receive benefits as the survivor of by making an application for benefits after the death of the parent.  42 U.S.C. § 402(d).   In order to qualify for child's insurance benefits, the child must show that he was a child of, and dependent on, the wage earner at the time of the wage earner's death. 42 U.S.C. §§ 402(d)(1)(C); 416(h)(3)(C)(ii).  The Act provides a safe harbor by turning to state law to determine paternity.  42 U.S.C. § 416(h)(2)(A).  

In California, the law has a strong preference for identifying the parents of a child.  The legal parent can be related by blood or by relationship.  A presumption of child-parent status in California can arise from holding out the child as the wage earner's offspring.  Family Code  § 7611.  Sometimes a child will not have a sociological parent and may have to resort to blood evidence to prove paternity.  Family Code § 7555(a).  

The Social Security Administration resists applications of unacknowledged minor children of a decedent under the Uniform Act on Blood Tests to Determine Paternity.  California Family Code §§ 7550 ff.  The administration seems to think that the Probate Code § 6453 requirement for an action during the parent's lifetime, holding out, or impossibility is required.  But that section only applies to actions under the Uniform Parentage Act and in particular Family Code § 7630.  Those provisions do not facially apply to sec. 7555.  

The upshot of all this is that the child is deprived one last time of identifying his father.  The lack of legal recognition in the only forum that has an interest can be devastating.  SSA needs to get into the 21st century and permit blood evidence to control when that evidence is in the best interests of the child, even if the father did not want to acknowledge his own child.  

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