Children & the Law Blog

It was reported in the Volokh Conspiracy a couple of weeks ago that the Bush administration’s Office of Legal Counsel decided that children of couples in civil unions are eligible for Social Security benefits. The decision was reached when the Office decided that the Social Security Act gives eligibility for benefits to any child who can “inherit from a parent regardless of marital status of the parent.”

The Office’s interpretation:

Although DOMA limits the definition of “marriage” and “spouse” for purposes of federal law, the Social Security Act does not condition eligibility for CIB [child's insurance benefits] on the existence of a marriage or on the federal rights of a spouse in the circumstances of this case; rather, eligibility turns upon the State’s recognition of a parent-child relationship, and specifically, the right to inherit as a child under state law. A child’s inheritance rights under state law may be independent of the existence of a marriage or spousal relationship, and that is indeed the case in Vermont. Accordingly, we conclude that nothing in DOMA would prevent the non-biological child of a partner in a Vermont civil union from receiving CIB under the Social Security Act.

The Office of Legal Counsel’s Opinion

Additional information at law.com