20 CFR 404.321(b)(2) and 404.1101(d)
C, an illegitimate child, became entitled to child's insurance benefits in January 1966 based upon the earnings record of his deceased mother. Two years earlier, a New York court had adjudged F to be the child's father.
The question presented is whether legal adoption of C by F, his natural father, would terminate C's entitlement to child's insurance benefits on his mother's earnings record.
Section 202(d)(1) of the Social Security Act provides, in pertinent part, that a child's entitlement to benefits terminates upon adoption of the child except for adoption by a stepparent, grandparent, aunt, uncle, brother, or sister, subsequent to the death of the insured individual.
In SSR 61-35, C.B. 1960-1961, p. 2, it was held that an adoption of an illegitimate child by his natural father would not require termination of the child's benefits if immediately prior to the adoption, the child had potential inheritance rights in the estate of his father under the law of the State of the father's domicile. The rationale for this holding is that under section 216(h)(2)(A) of the Act, a child who has the status of such for the purpose of taking the father's intestate personal property under applicable State law, is a child for purposes of title II of the Social Security Act; therefore, the legal relationship of parent and child already exists so that adoption by the father does not create a new relationship, but rather perfects an existing one, and is not an adoption contemplated in section 202(d)(1) of the Act.
The Social Security Amendments of 1965 (P.L. 89-97) added paragraph (3) to section 216(h), which provides an additional basis for establishing the parent-child relationship if the test of inheritance rights under State law is not met. Section 216(h)(3) of the Act provides in substance, as pertinent here, that where the child does not meet the relationship test under Section 216(h)(2), the child may be deemed the child of the parent if a court has decreed the parent to be the father of the child.
Under the facts of this case, F has been decreed by a court to be C's father, and thus C already qualifies as F's "child" within the meaning of section 216(h)(3) of the Act. Following the rationale in SSR 61-35, supra, C's adoption by F would result in no change in C's status for purposes of title II of the Social Security Act since no new parent-child relationship would be created. Accordingly, it is held that C's adoption by his natural father would not result in the termination of C's entitlement to child's insurance benefits on the earnings record of his mother.