R and W married in February 1940 and lived together in California. In 1954, R met M and had an affair with her. A child, C, was born to M as a result of this relationship. R concealed the existence of C from his wife.

At some point, W discovered the existence of C, but refused to accept him into the family, even though R acknowledge the child. Under California law at the time, C was not legitimated by R’s acknowledgement because W did not consent to receive him into the family.

R and W continued to reside together until 1958, when W obtained an interlocutory Decree of Divorce. R moved into a cottage next to M’s house. Under California law at the time, an interlocutory decree of divorce was not a final order and therefore R and W were still married until and unless the decree became final.

R passed away in August 31, 1959. M applied for child’s social security benefits on R’s work record.

However, her client was denied because C was not R’s legitimate child at the time he passed away. R was still married to W at the time of his passing and W had never consented to accept C as part of her family.

See Social Security Ruling (SSR) 65-36c.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.