Last updated: 10/15/2018
Peter W. Martin
Cornell Law School

Benefits Payable to an Insured Worker's Children

A Social Security Law Guide

1. Overview

Social Security benefits are available to the dependent children of a worker who is entitled to old-age insurance (retirement) or disability benefits if those children are:

  1. under 18 or
  2. under 19 and full-time students or
  3. age 18 and older and under a disability that began before the age of 22.

Survivors benefits are also available at the same ages to dependent children of a deceased insured worker. 42 U.S.C. § 402(d)20 C.F.R., Part 404, Subpart D20 C.F.R. §§ 404.350 - 404.368.

While child benefit eligibility ordinarily ends at age 18, a child who is a full-time elementary or secondary school student remains eligible for an additional year, to age 19, so long as he or she remains in school. 20 C.F.R. § 404.367. (Regulations provide that in some situations scheduled attendance of fewer than 20 hours a week can constitute full-time attendance.) No age-limit applies to those who are eligible because of a disability that arose before 22. With very limited exceptions, eligibility ends with marriage.

Certain categories of children must prove that they were dependent on the insured worker. For others dependency is presumed.

Eligibility for these child benefits begins when the insured worker dies or becomes entitled to old-age insurance or disability benefits. As is true of other benefits, child benefit entitlement requires the filing of an application. As a consequence, delayed filing can lead to a period for which benefits are not received. Bang v. Colvin, No. 12-cv-629-wmc (W.D. Wis. Jan. 20, 2015).

There are several different ways an individual can qualify as an eligible child of the insured:

  1. By being treated as a child under the intestate succession law that applies to personal property in the relevant state (Most children born to or of an insured or adopted by an insured qualify by this route.);
  2. By being the child of an invalid marriage that involved a marriage ceremony which failed to establish a legal marriage because of a procedural flaw or the existence of a prior undissolved marriage;
  3. By being a child born to or of the insured, not qualifying under 1 or 2, if the insured has acknowledged the child in writing or there is a court order of parentage or support; or
  4. By establishing both the fact of parentage (with satisfactory evidence) and that the insured was either living with or contributing to the support of the child.

Most children who qualify under tests 1, 2, 3, or 4 need prove no further connection to the insured. The statute requires that to be eligible a child must be "dependent" on the insured, but then establishes a conclusive presumption of "dependency" that applies in most cases. If the child is eligible under test 1 as the adopted or the "legitimate" child of the insured, the child is deemed "dependent." If the child fails to qualify under test 1 but qualifies under either test 2 or test 3, the child is deemed "legitimate" and thus deemed "dependent." Test 4 contains an explicit dependency requirement. If it is satisfied there is no further one.

In addition to these rules there are special provisions for stepchildren and grandchildren that allow them to qualify in some circumstances without meeting any of the above tests.

Contents

  1. Overview
  2. Status as a Child of the Insured Worker – State Law
    1. In General
    2. Effect of State Law Presumptions
  3. Status as a Child of the Insured Worker - Social Security Act Recognition of Child Who Fails to Meet State Law Tests
    1. In General
    2. Living with or Supported by
    3. Proof of Parentage and Actual Dependency
    4. Written Acknowledgement
    5. Court Order of Support
    6. Child of a Defective Ceremonial Marriage
  4. Children Born after the Worker’s Death
  5. Adopted Children
    1. Formally Adopted
    2. Equitably Adopted
    3. Adopted by a Grandparent
  6. Stepchildren
  7. Grandchildren
  8. Effect of a Child's Marriage
  9. Benefit Amount
    1. Before Adjustments
    2. Reduction Due to Family Maximum
    3. Reduction Due to Earnings
  10. The Need to File an Application
  11. Payment of Benefit to Child's Parent or Some Other "Representative Payee"
  12. Supporting and Elaborating References

2. Status as a Child of the Insured Worker – State Law

a. In General

For children the Act refers only to the law "applied in determining the devolution of intestate personal property by the courts of the [relevant] State." 42 U.S.C. § 416(h)(2)(A). Although distinctions may arise in other legal settings, "applicants who according to such law would have the same status relative to taking intestate personal property as a child ... shall be deemed such." Thus, for example the question about a child of a worker who died domiciled in Texas is whether the child can inherit. If the child is an acknowledged child born outside of marriage, the question becomes whether such children would inherit under Texas law. In Moorehead v. Bowen784 F.2d 978 (9th Cir. 1986), the court held that under Texas intestate succession law of the time only "legitimate" children inherited personal property. However, it determined that Texas courts would, on the question of legitimacy, look to the law of the state where all the acts bearing on status took place. Since that state was California, it applied California law. Further, since California law allowed children to take as legitimate if the "father receives the child into his home and openly holds ... [it] out as his natural child," the child claimant in Moorehead was found eligible.

In 2007, the Office of Legal Counsel in the Justice Department issued an opinion on the effect of the federal Defense of Marriage Act (DOMA) on the eligibility of children of same sex marriages. That opinion advised the Social Security Administration that since eligibility for child benefits does not depend upon there being a marital relationship but rather on the existence of a parent-child relationship under state law and "specifically, the right to inherit under state law," DOMA did not block benefits to children. It followed that a non-biological child of a partner to a Vermont civil union could inherit under Vermont law, such a child qualified for child benefits. Whether the Defense of Marriage Act Precludes the Non-biological Child of a Member of a Vermont Civil Union from Qualifying for Child's Insurance Benefits under the Social Security Act31 Op. O.L.C. 243 (2007).

b. Effect of State Law Presumptions

Since the reference in the Act to state law is a reference to what the courts of a state would find, it incorporates not only the state's "substantive law" but also state law presumptions that bear on the resolution of factual disputes important to a child's status. For example, if state law presumes a child born to a married couple during the marriage to be the child of both marriage partners, that presumption will operate in a dispute over entitlement to Social Security child benefits. See, e.g., Javier v. Comm'r of Soc. Sec.407 F.3d 1244 (D.C. Cir. 2005); Schoenfeld v. Apfel237 F.3d 788 (7th Cir. 2001).

3. Status as a Child of the Insured Worker – Social Security Act Recognition of Child Who Fails to Meet State Law Tests

a. In General

The Act extends child benefits to several categories of children who do not meet the state law test. These include:

  1. children born of a marriage that is invalid, either due to a procedural flaw in the marriage ceremony or due to a prior undissolved marriage
  2. children born to or of the insured, not qualifying under state law, if the insured has acknowledged the child in writing or is subject to a court order of parentage or support.

Finally, the Act provides for child benefits in cases where the fact of parentage is established to the satisfaction of SSA and the insured was either living with or contributing to the support of the child at the critical time for entitlement.

Social Security Ruling SSR 06-2p addresses the situation in which one child qualifies for benefits on a ground other than state intestacy law and a second child, who presumably does not qualify on that ground, is established to be his or her sibling by DNA testing.

In Mathews v. Lucas427 U.S. 495 (1976), the Supreme Court upheld the Act's provisions dealing with proof of dependency by children born outside of marriage. The decision, which provides important interpretation of those provisions, concludes that requiring proof of financial dependency of those children who cannot establish a purported marriage or written acknowledgment of parenthood or a court order does not violate the equal protection component of the Due Process clause of the 5th Amendment.

b. Living with or Supported by

A child of the insured worker, born outside of marriage, who does not qualify on the basis of state law will, nonetheless, be eligible for child benefits on the worker's account if there is adequate proof of the parent-child relationship and child is living with or supported by the worker at the time of the child's application for benefits (or if the worker is dead and the child is applying for survivors benefits, at the time of the worker's death). The regulations spell out the type of evidence that will establish that the child was living with or supported by the insured worker. 20 C.F.R. § 404.355(a)(4)20 C.F.R. § 404.366.

When the insured worker has meager resources, issues of the amount and regularity of support necessary to meet this test can prove especially troublesome. The Agency's position is that regular and substantial contributions are required.

c. Proof of Parentage and Actual Dependency

Since this child status test is independent of state law, state law standards of proof of parentage do not apply. The Act provides that children qualifying on the basis of this test must establish parentage to the satisfaction of the agency. In Jones v. Chater101 F.3d 509 (7th Cir. 1996) the Seventh Circuit concluded that this set the burden of proof at the "preponderance of evidence" level.

d. Written Acknowledgement

The Social Security Administration holds to the view that for a written acknowledgement to establish eligibility the existence of a biological parent-child relationship is a pre-condition or at least that, in the event of evidence that it does not exist, acknowledgement standing alone will not suffice. The case law is divided on this point. See Jones v. Sullivan953 F.2d 1291 (11th Cir. 1992); Patterson v. Bowen839 F.2d 221 (4th Cir. 1988); Vance v. Heckler757 F.2d 1324 (D.C. Cir. 1985).

e. Court Order of Support

A child born outside of marriage who does not qualify on the basis of state law will, nonetheless, be eligible for child benefits on the insured worker's account if the worker was ordered by a court to support the child based on a finding that it was his son or daughter or if a court, without ordering support, decreed the worker to be the child's parent during the worker's lifetime. See Trammell ex rel. Trammell v. Bowen819 F.2d 167 (7th Cir. 1987).

f. Child of a Defective Ceremonial Marriage

A child born to a parent who, even though not legally married, did participate in a marriage ceremony that was invalid because of a prior undissolved marriage or for some other reason will still be eligible for child benefits on the working parent's account despite state law disqualification. Unlike the comparable provision applicable to spouse benefit claimants, this test does not require that either of the parents participating in the ceremony hold a good faith belief that it would establish a valid marriage. See Eisenhauer v. Mathews535 F.2d 681 (2d Cir. 1976).

4. Children Born after the Worker's Death

A child born after the worker's death can pose special problems of interpretation or proof. If the child is born within a marriage or otherwise qualifies on the basis of state law, the timing poses little difficulty. However in cases where eligibility depends on the child's living with or being supported by the worker, the test may be difficult if not impossible to meet. The provisions for written acknowledgment or eligibility based on a court order can also prove troublesome in such cases.

Recent cases have had to address the question whether a child conceived posthumously, by artificial insemination, can qualify for surviving child benefits. In May 2012, the Supreme Court reversed a Court of Appeals decision which had held, in a case involving posthumously conceived children, that a biological child of a married couple need not be able to inherit under state law to qualify for survivor benefits. In Astrue v. Capato, 566 U.S. 541 (2012) the Supreme Court held that posthumously conceived children that cannot inherit under state law (or, presumably, meet tests 2, 3 or 4) are not eligible for child benefits. In doing so, it rejected the position taken by the Ninth Circuit in Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004). Following Capato, the eligibility of posthumously conceived children will vary from state to state, depending on the terms of the state's law governing intestate succession under these circumstances. The Capato decision led the Agency to rescind its ruling acquiescing in Gillett-NettingAR 05-1(9). In some situations state law may not yet be clear. See Delzer v. Berryhill, 886 F.3d 1282 (9th Cir. 2018) (denial of benefits subsequently upheld after California Supreme Court decline to take the certified question, 722 Fed. Appx. 700).

5. Adopted Children

a. Formally Adopted

Adoption can be a basis for receiving child benefits. At least one category of adopted children, however, must meet a more stringent set of requirements than children who are born to or of the insured. These are older children (i.e. children 18 and over qualifying for benefits by virtue of disability) whose adoption did not come until after the insured had begun old-age or disability benefits. Unless they fall within certain categories (such as stepchildren or, in some cases, grandchildren) they must establish actual financial dependence on the insured in the year prior to their adoption. Legally adopted children who are claiming survivors benefits do not have to meet an actual dependency test. Children adopted by a grandparent or the spouse of a deceased grandparent are also exempt from this test under some circumstances. And children adopted by a natural parent, a stepparent or someone on whom they were dependent prior to the adoption need not meet the test. A child adopted by the surviving spouse of a deceased worker can qualify for surviving child benefits if the adoption proceedings were begun before the worker's death or the adoption was completed within 2 years after that death. In addition, the child must have been living in the worker's home or have received 1/2 support from the worker in the year before the worker's death. 20 C.F.R. § 404.362.

When a child is adopted by someone other than the parent on whose account he or she might otherwise be able to claim benefits, that adoption can undercut child benefits. If that adoption occurs during the insured's lifetime, dependence on the birth parent is no longer presumed but must be established by proof of support by the insured birth parent or by proof that the child was living with the birth parent.

b. Equitably Adopted

Some states define children whom an individual agreed to adopt, but failed to, as "equitably adopted," treating them as children for purposes of intestate succession. Children who have such status under state law are eligible for Social Security. They must, however, establish dependence on the insured at one of several critical times. Those times are the insured's death or disability or eligibility for old-age benefits or their own application. In the case of a living insured they must also establish that equitable adoption occurred before the insured's disability or eligibility for old-age insurance benefits. 20 C.F.R. § 404.365.

c. Adopted by a Grandparent

An individual who is legally adopted by his or her grandparent need not meet an actually dependency test if the adoption occurred prior to the grandparent's death, disability, or eligibility for old-age insurance benefits. Where the adoption occurs subsequent to the grandparent's disability or old-age insurance eligibility, the individual must meet the same requirements as other adopted children. 20 C.F.R. § 404.362.

6. Stepchildren

The Act provides benefits for stepchildren without explicitly tying this status to intestate succession law. The Agency's regulations follow suit. 20 C.F.R. § 404.357 Some courts have held, however, that the status derives from state law so that a liberal state definition of stepchild may furnish a basis for benefits. See, e.g.Hutcheson v. Califano638 F.2d 96 (9th Cir. 1981). Stepchildren must establish dependency by showing receipt of 1/2 support at the critical time ("living with" does not suffice). 20 C.F.R. § 404.363See Reutter v. Barnhart372 F.3d 946 (8th Cir. 2004).

A child who would not otherwise qualify as a stepchild will, nonetheless, be eligible for child benefits on the worker's account if the worker and the child's other parent, even though not legally married, did participate in a marriage ceremony which was invalid because of a prior undissolved marriage or for some other reason. Unlike the comparable provision applicable to spouse benefit claimants, this test does not require that either of the parents participating in this ceremony hold a good faith belief that it will establish a valid marriage.

In the event the stepparent and the child's biological parent subsequently divorce benefits on the stepparent's account cease. 42 U.S.C. § 402(d)(1)(H).

7. Grandchildren

An individual who is actually dependent on his or her grandparent at the time of the grandparent's death, disability, or eligibility for old-age insurance benefits can claim child benefits on the grandparent's account so long as the child's parents are either dead or disabled at that point. 42 U.S.C. § 416(e). Actual dependence on the grandparent is established by proof of living with the grandparent or receiving 1/2 support at the critical time.

An individual who is dependent on his or her stepgrandparent under circumstances that allow a child to claim on the account of a grandparent (whether or not legally adopted) is entitled to child benefits.

8. Effect of Child's Marriage

To be eligible for child benefits an individual must be unmarried. Ordinarily, marriage, at any age, will cause child benefits to end. 42 U.S.C. § 402(d)(1)(D). One important exception exists for individuals who are eligible for child benefits because of disability. Their marriage to other individuals eligible for Social Security benefits will not end their disabled adult child benefits. 42 U.S.C. § 402(d)(5).

9. Benefit Amount

a. Before Adjustments

The pre-adjustment benefit amount for a child is set at a percentage of the Primary Insurance Amount (P.I.A.) of the covered and insured worker. That percentage figure is 50% for a child of a recipient of disability or old-age insurance benefits, 75% for child receiving survivor benefits. 42 U.S.C. § 402(d)(2).

b. Reduction Due to Family Maximum

Like other auxiliary benefits, benefits for the child of a worker receiving disability or retirement benefits or a surviving child are subject to the family maximum. 20 C.F.R. § 404.403. For retired or deceased workers, that cap is calculated by a formula that yields a figure between 150% and 188% of the worker's P.I.A. With disabled workers it is a somewhat lower figure. The family maximum operates to reduce a child benefit when additional family members are entitled to benefits. Since the worker's benefit is paid in full out of the maximum, it does not take many additional family members entitled to benefits before the total exceeds the family maximum, triggering a reduction of the individual amounts. These can be children or spouses of the insured worker living in another household. However, benefits to divorced spouses are, except in the case of mother or father benefits, paid outside the family maximum and therefore have no impact on the amount of benefits for others. 42 U.S. Code § 403(a)(3)(C); 20 C.F.R. § 404.403(a)(3).

c. Reduction Due to Earnings

The receipt of earnings above an annually adjusted exempt amount ("excess earnings") by the insured worker on whose account spouse benefits are being paid will lead to a benefit reduction. The reduction occurs at a rate of 50% of total earnings above that exempt amount. 20 C.F.R. § 404.415. Earnings received by another member of the household including a mother or father receiving spouse benefits while caring for an eligible child have no effect on the child’s benefits.

10. The Need to File an Application

Filing an application is a precondition to child benefit entitlement. Eligible claimants can generally elect to have benefits paid for a period of months (6 months or 12 months depending on the covered worker's status) prior to the month of application.

The requirement that an individual apply for benefits puts the timing of benefits in his or her control. Since child benefits normally end at age 18, any delay sacrifices some period of benefits.

11. Payment of Benefit to Child's Parent or Some Other "Representative Payee"

With limited exceptions, child benefit payments are made on the child's behalf to his or her parent, guardian, or some other "representative payee." The selection of that representative is made by the Agency according to a set of priorities set out in its regulations. Regulations also detail the responsibilities of a representative payee and the consequences of any misuse of benefits paid on a child's behalf. 20 C.F.R. § 404.2010(b).

State courts are not agreed on the extent of their authority to regulate the disposition of benefits by representative payees. A 1985 North Carolina decision took the position that "The courts of North Carolina ... do not possess the power to compel the SSA to transfer the children's benefits to someone other than the designated payee, nor do they have the power to determine that [the] defendant is misusing Social Security benefits paid to him on behalf of the children and to direct that he account for them to some other person." Brevard v. Brevard, 74 N.C. App. 484, 487-88, 328 S.E.2d 789, 791-92 (1985). Courts in other states have asserted "concurrent jurisdiction" with SSA over misuse of funds by representative payees. See State v. Wallace, 160 Ohio App. 3d 528, 828 N.E.2d 125 (2005); Grace Thru Faith v. Caldwell944 S.W.2d 607, 613 (Tenn. Ct. App. 1996).

12. Supporting and Elaborating References

Social Security Act:

Regulations:

Social Security Rulings:

POMS:

Agency Guidance:

Selected Cases:

Cases Addressing Issues Involving the State Law Test:

Cases Addressing Eligibility Based on Formal Adoption:

Cases Addressing Eligibility Based on Equitable Adoption:

Cases Addressing Issues of Written Acknowledgement:

Cases Addressing Issues of Support or Living with:

Cases Addressing Issues Concerning Stepchildren:

Articles and Notes:

About this Guide:

How to work with the linked source materials

All publications of the Social Security Administration are linked directly to the Agency's site.

Links of citations to provisions of the U.S. Code and regulations codified in C.F.R., together with those to Supreme Court and Court of Appeals decisions, employ the Read It Online or RIO service of the Cornell Legal Information Institute. They, thereby, present users with a choice among legal information providers. Choices include the comprehensive fee-based services, Westlaw and Lexis, and a number of free options. To see how this works follow one or more of the following linked references:

In varying ways and to varying degrees the services to which the links provide access include tools for checking on the currency of the cited section or case. (Has the cited section been amended or the cited decision overruled or questioned since this guide was written?) They also provide the best means for retrieving directly relevant decisions of the U.S. District Courts. The “precedential” decisions of the U.S. Courts of Appeals represent only a slim portion of Social Security case law. Following key regulations or appellate decisions into and through Lexis and Westlaw, on the one hand, or Google Scholar, on the other, can lead you to district court decisions that have interpreted them.

Other Guides in this Series

History

This is the fifth electronic format in which the materials integrated here have appeared. The work was first launched in 1991 on LEXIS where it lived awkwardly and for only a short time. (At that point LEXIS lacked hypertext capability and delivered all content through small screen-fulls of character-based monochrome display.) That company's decision not to proceed with its original plan of placing the treatise and its accompanying library of primary law materials on CD-ROM, prompted their migration to the Thomson Corporation's Clark Boardman Callaghan division, which released "Social Security Plus" in 1994. Thomson's acquisition of the West Publishing Company in 1997 brought "Social Security Plus" and a competing West CD-ROM into uncomfortable proximity. Rather than allow their merger, the author brought the compilation to the open Web, as part of the Legal Information Institute's online collection. It lived there for a decade, evolving as the legal resources on the open Web expanded. In 2012, it morphed into a wiki format. The closure of the wikispaces.com site in 2018 prompted the latest conversion.

This segmented form (a series of topical guides) is offered in hopes that some or all of the guides will provide a useful base on which others can build, update, and improve. Note the licensing terms below.

Copyright and license, plus an affirmative invitation

© Peter W. Martin, 2018. This work is licensed under the Creative Commons Attribution-ShareAlike 3.0 License. To view a copy of this license, visit https://creativecommons.org/licenses/by-sa/4.0/. As noted above the author not only authorizes redistribution, reuse, revision, and adaptation of this material (with attribution, please) but encourages it.