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October 9, 1980


The opinion of the court was delivered by: J. Waldo Ackerman, District Judge.


Plaintiff seeks by this action judicial review of the denial of child's insurance benefits to her daughter by the Department of Health and Human Services. Plaintiff's application for benefits was based on the wage record of Michael Ellis, who died fully insured on May 23, 1977. Plaintiff contends that Ellis was the father of her daughter who was born on October 10, 1974. Plaintiff and the deceased never married, the deceased never acknowledged in writing that he was the child's father, and no court ever declared him to be the father or ordered him to pay child support. Ellis never lived with plaintiff and her daughter, and although he gave occasional gifts to the child, he did not contribute substantially to her support.*fn1 Plaintiff testified at the hearing that she did not take the deceased to court to procure support for the child. Record of Proceedings (hereinafter R.) at 43. The deceased, however, did verbally acknowledge that the child was his daughter. The evidence presented at the administrative hearing led the Administrative Law Judge (ALJ) to conclude that "the late wage earner was indeed the father of the child." R. at 27. However, because the child failed to meet the eligibility requirements imposed on illegitimates by 42 U.S.C. § 416(h)(2)(A)*fn2 or 42 U.S.C. § 416(h)(3)(C),*fn3 the ALJ denied her application for benefits.

To be eligible for survivor's benefits, an applicant must be the child of the deceased, meet certain age requirements, and must have been dependent on the insured at the time of his death. 42 U.S.C. § 402(d)(1). In determining whether an applicant is the child of the deceased insured, the Secretary must examine the state intestacy law of the state in which the deceased was domiciled at the time of his death. See, note 2, supra. If an illegitimate child is capable of inheriting from the deceased parent under state law, that child is then deemed to be the child of the deceased. Under these circumstances, a statutory presumption of dependency arises, and the child is entitled to receive benefits without any showing that he is in fact dependent on the deceased parent. Mathews v. Lucas, 427 U.S. 495, 499, 96 S.Ct. 2755, 2759, 49 L.Ed.2d 651 (1976). See also, Jiminez v. Weinberger, 417 U.S. 628, 635-36, 94 S.Ct. 2496, 2501-02, 41 L.Ed.2d 363 (1974).

What both the Government and plaintiff's attorney neglected to point out is that this statute clearly is unconstitutional.*fn5 In Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the Supreme Court held unconstitutional § 12 of the Illinois Probate Act, virtually identical to the statutes involved here, which allowed illegitimate children to inherit by intestate succession only from their mothers. That statute also provided that "a child who was illegitimate whose parents inter-marry and who is acknowledged by the father as the father's child is legitimate." The Court held that the total statutory disinheritance of illegitimate children whose fathers die intestate was not rationally related to the promotion of a legitimate state interest. The Court objected to the requirement of intermarriage as an absolute precondition to inheritance.

  Imposing disabilities on the illegitimate child
  is contrary to the basic concept of our system
  that legal burdens should bear some relationship
  to individual responsibility or wrongdoing.
  Obviously, no child is responsible for his birth
  and penalizing the illegitimate child is an
  ineffectual-as well as unjust-way of deterring
  the parent. (Citations omitted.) The parents have
  the ability to conform their conduct to societal
  norms, but their illegitimate children can affect
  neither their parents' conduct nor their own

Id., at 769-70, 97 S.Ct., at 1464-65.

Accordingly, I find that if the Missouri Supreme Court were faced with this issue today, it would find its Probate Act unconstitutional in light of Trimble v. Gordon. Consequently, I find Stacy L. White entitled to Social Security benefits as a child of the deceased wage earner, Michael Ellis. Accord, Ramon v. Califano, 493 F. Supp. 158 (W.D.Tex. 1980).*fn6

Therefore, it is ordered that the decision of the Secretary denying the claim of Stacy L. White is hereby reversed, and summary ...

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