APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 81-3857)
Before: ADAMS, GIBBONS, and WEIS, Circuit Judges
The issue in this case is whether claimant, a child born out of wedlock, is entitled to survivor's benefits under the Social Security Act as the child of a deceased wage earner. The district court determined that claimant was not entitled to inherit under Pennsylvania intestate laws and thus was not eligible under the terms of the Social Security Act. As a second basis for denying benefits, the court found that claimant had failed to prove that she was dependent on the wage earner at the time of death. We disagree with the district court and conclude that a constitutional construction of the state intestacy statute in effect at the time of the wage earner's death would entitle claimant to benefits if she can establish paternity. We remand for further factual development on that point.
After a hearing, and ALJ found claimant Angel Green ineligible for survivor's benefits because "The evidence of record is not satisfactory to establish the deceased wage earner to be the father of the child." On appeal to the district court, the parties moved for summary judgment, and the court assigned the case to a magistrate for recommendation. The magistrate decided that the Secretary's finding that Angel Green was not the child of Price May "was not supported by substantial evidence." However, the magistrate concluded that benefits were properly denied because Price May was not living with or contributing to Angel's support at the time of his death as required by § 216(h)(3)(C)(ii) of the Social Security Act. 42 U.S.C. § 416(h)(3)(C)(ii).*fn1
The magistrate further concluded that Angel did not qualify under § 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A), because Pennsylvania intestate law, 20 Pa. Cons. Stat. Ann. § 2107 (Purdon 1975), in effect at the time of the wage earner's death in 1976 precluded illegitimate children from inheriting from their fathers. Claimant was also found ineligible under the 1978 revision of Pennsylvania intestate law because of its explicit provision that it is not to be given retroactive effect.
The district court adopted the magistrate's report and entered summary judgment for the Secretary Claimant appeals.
Claimant contends that under § 216(h)(2)(A) she is entitled to benefits. That section provides, in relevant part, that children will be entitled to survivor's benefits if they can demonstrate that they would inherit personal property from the deceased wage earner under the intestate law of the domiciliary state "at the time of his death." The wage earner in this case was therefore, under § 216(h)(2)(A). We are required to apply the same intestate law that the Pennsylvania courts would use. As part of our task, we must decide whether to apply the state law in effect at the time of death or that which was in force when the claimant's application was filed.
Section 212(h)(2)(A) is applicable, not only when the wage earner has died, but also in those instances where an applicant who is a dependent seeks benefits because of the wage earner's old age or disability entitlement. In the later circumstances, the intestate law at the time the application is filed is used to determine eligibility for benefits. If the wage earner is deceased, however, other considerations come into play.
The Act must be read carefully. It provides that in determining the status of an alleged child of the wage earner, "the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application." This provision, of course, would be pertinent if the wage earner is living when the application for benefits was filed.
The statute continues, "or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death." The statute pointedly does not repeat the phrase, "at the time such applicant files application." This omission is significant and highlights the differing factors which must be considered in the situation where the insured had died.
Two courts of appeals have held that "at the time of his death" refers only to choice of law, and does not establish the time for determining the applicable local intestate law. See Owens v. Schweiker, 692 F.2d 80 (9th Cir. 1982); Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982). According to those courts, the intestate law in force at the time the application for benefits was filed must be used to decide whether a claimant is entitled to inherit from a deceased wage earner.
In those cases, unlike the one at hand, the statute in effect at the time of application did not contain a non-retroactivity clause. In our case, the 1978 Pennsylvania intestate statute explicitly states that "its provision shall not apply . . . to rights from and through a child's father if the father had died prior to the effective date of this act." 20 Pa. Cons. Stat. Ann. § 2107 (Purdon 1978). Hence, by its terms the 1978 statute ...