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Ask Dr. Fiona Chen Your Own Question
Dr. Fiona Chen
Dr. Fiona Chen, Certified Public Accountant (CPA)
Category: Social Security
Satisfied Customers: 300
Experience:  Former IRS Revenue Agent
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I raised a child from birth with a man who was not his

Customer Question

I raised a child from birth with a man who was not his biological father. This man was the only father my son ever knew. When my son was three we hired an attorney to attempt a legal adoption. Adoption was not possible because we were not married. We were told that both parents myself and the biological father would need to severe our parental rights in order for the man that I raised my son with to adopt. We agreed to do this because we wanted to legally change my sons last name and we both trusted that the other would never take the child away from one another . We saw this as the only way for him to be legally his father. The attorney drew up the paperwork and I have it all but the biological father was never found to be served. So it was never filed in the courts. For almost nine years we raised my son together sharing joint custody. From the time of birth he paid child support monthly and had weekly visitation. This was never ordered by the courts this was our agreement . Here are my two questions. 1. The man that raised my son was hit by a drunk driver and has been in an accoma for three years. This man was very successful a ship boat captain in the merchant marines for twenty five years and invested and owned many successful business. Would my son qualify for surviovor benifits? I have all proof that he was his father from birth. My son was his only child. Here is my other question/ dilemma several years ago I received a phone call from social security stating that the biological father had listed my son on his disability benifits. I explained that I did not want the benifits as he was finacially supported by the man raising him. The woman said it did not work like that and got my info and started sending checks for a very small amount monthly . The bio father has numerous children. Till this day bio father has never met child and there is no contact and has not been for 11 years. I'm in no way trying to be selfish or double dip . The man that raised him would want this for him .
Submitted: 2 months ago.
Category: Social Security
Expert:  Dr. Fiona Chen replied 2 months ago.

Dear Customer,

I hate to relate the answer this way. But I am a CPA. Most of our job is unpleasant in nature, in notifying disappointing news. We also give extreme examples to make people understand our points. I will provide some other alternatives for you to consider, as well. But you may and should still want to confirm and find more advice from attorneys in your state.

The good part of the side is that your child still has a father and will have rights to inheritance and/or benefits to his birth father's estate if anything similar to this event happens to his birth father. But your child is not entitled to the estate of this injured person as a son. He may inherit the injured person's belongings if there is a will or estate or trust established before the accident. We can always designate who can inherit our estate in a will or trust. But if it is a personal injury case to be filed in a state court, there is no way I can see that the child qualifies as a beneficiary of the estate in the eyes of any state laws. You can imagine that if it were allowed, there would be no method for the courts to uphold such laws and proceeds with such claims. That is also why the laws are set this way.

However, there are other alternatives for you to consider, provided that the statute of limitation has not run out. You can investigate these possibilities. First, find and locate the next of kin for this injured person, say parents, siblings, cousins, etc. If the lawsuit is filed with possible recovery, the relatives with standing may be willing to share some of the proceeds with you, not as a matter of law but as a matter of goodwill and good heart, kind action on their part. Also, if you are actually providing care to the injured person, the recovery can include compensation to your time spent in taking care of him.

Also, if you write to the person who caused the damage what you wrote to us, maybe out of this good heart, he is willing to contribute some to your son, not because of law but because of his kind heart. Do this through an attorney, even one from a free legal clinic. Do not do this on your own. You cannot communicate with a person with power and resources by yourself. We don't know what legal action they may take against us if we write anything improperly in this communication.

The third possibility is if you live in a state that recognizes common law marriage, you may qualify as the spouse yourself to recover damages. However, if it has been these many years, no attorneys have taken your case, this may not be the case in your state.

But still read on, the references and citations below is on common law marriage and a possibility discussion. Even if you may qualify as a spouse under common law marriage, whether you have standing to file lawsuit to recover damage is still an undecided issue. Continue to consult with your local, state attorneys.


Fiona Chen, MPA, Ph.D., CPA, ABV, CFF, CITP

States That Recognize Common Law Marriage

Only a few states recognize common law marriages, and each has specific stipulations as to what relationships are included:

  • Alabama
  • Colorado
  • District of Columbia
  • Georgia (if created before 1/1/97)
  • Idaho (if created before 1/1/96)
  • Iowa
  • Kansas
  • Montana
  • New Hampshire (for inheritance purposes only)
  • Ohio (if created before 10/10/91)
  • Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
  • Pennsylvania (if created before 1/1/05)
  • Rhode Island
  • South Carolina
  • Texas
  • Utah

If you live in a State that Does Recognize Common Law Marriage

If you live in one of the above states and you “hold yourself out to be married” (by telling the community you are married, calling each other husband and wife, using the same last name, filing joint income tax returns, etc.), you can have a common law marriage (for more information on the specific requirements of each state, see Legal Information and Resources by State). Common law marriage makes you a legally married couple in every way, even though you never obtained a marriage license. If you choose to end your relationship, you must get a divorce, even though you never had a wedding. Legally, common law married couples must play by all the same rules as “regular” married couples. If you live in one of the common law states and don’t want your relationship to become a common law marriage, you must be clear that it is your intention not to marry. The attorneys who wrote Living Together (additional information below) recommend an agreement in writing that both partners sign and date: “Jane Smith and John Doe agree as follows: That they’ve been and plan to continue living together as two free, independent beings and that neither has ever intended to enter into any form of marriage, common law or otherwise.”

If You Live in a State that Does Not Recognize Common Law Marriage

There is no way to form a common law marriage, no matter how long you live with your partner. There is one catch: if you spend time in a state that does recognize common law marriage, “hold yourself out as married,” and then return or move to a state that doesn’t recognize it, you are still married (since states all recognize marriages that occurred in other states). However, this is murky legal territory and we don’t recommend experimenting with it!

Unmarried Equality is not responsible for omissions or inaccuracies in the above information.

Much of the information on this fact sheet comes from an excellent do-it-yourself legal guide called Living Together: A Legal Guide for Unmarried Couples, by attorneys Toni Ihara, Ralph Warner, and Frederick Hertz (2008).

Customer: replied 2 months ago.
Dr. Chen thank you for your advice. I live in the state of Arizona and in most states including my own the law states that a non biological father that supported, paid for educational expenses holds themselves out to society as the parent can be forced to pay childsupport under Arizona state laws. The social security website states that support can be paid to a biological, step child, grandchild, adopted child. Clearly I can not go after him for childsupport because he could not appear in court. I suppose only a social security attorney can answer this question. As far as common law marriage he married shortly before the accident .
Expert:  Dr. Fiona Chen replied 2 months ago.

Dear Customer,

It seems that there are many elements to the issue. I am not sure if he got married before the accident, the current wife is taking care of the financial and personal injury issues. Maybe you can communicate with her. If you and your child can share some of the responsibilities to take care of her husband, which she would need a lot of help, maybe she would be willing to share with you some of the recovery.

If you are sure that In Arizona, you can force him to pay child support, you may want to consult with an attorney on this point. If he has an estate with assets in it, and you are sure about the Arizona law on this, then, this seems to be a potential option.

As to social security administration, again, you should consult with an attorney. Social security is a national, federal law. Somehow, I cannot see how your child belongs to any of the categories.

Thank you for the follow up.



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