20 CFR 404.1101 and 404.1109

SSR 73-27

A worker was relieved by court of future support obligation after adoption of his natural children by their stepfather, under applicable Michigan law. Such adoption did not terminate inheritance rights of children from natural father. However, court ordered worker to continue payments until his past-due support obligation was fully satisfied, such order resulting in regular payments by worker until onset of disability. Held, such payments constitute contributions for support within meaning of section 202(d)(3) of Act; therefore, the children are entitled to child's insurance benefits as children of their natural father.

R divorced his wife, W, in 1961 and the Michigan court ordered him to pay $15 per week for the support of two minor children of the marriage. W subsequently remarried and in May 1970 the children were legally adopted by their stepfather. R was delinquent in his support payments at the time of the adoption, therefore, the court ordered that payments continue at the original rate until the full arrearage (between $2800-$3100) had been paid. R continued the payments until June 15, 1971, when he became disabled. The court permitted a suspension in payments until he began receiving disability insurance benefits. W filed an application on behalf of the children for child's insurance benefits.

The issue presented is whether the payments ordered by a Michigan court may constitute contributions for child support within the meaning of section 202(d)(3) of the Social Security Act where the worker, as a result of an adoption decree, was relieved of future child support responsibility but was ordered by the court to continue payments until his past due child support obligations were satisfied.

To be entitled to child's insurance benefits under section 202(d)(1)(C) of the Act, a child must be dependent upon the worker at the pertinent time; here, at the time the child's application was filed or at the time the worker's period of disability, or his entitlement to disability insurance benefits began. Where a child has been legally adopted by another person during the natural parent's lifetime and the adoption does not cut off inheritance rights between the child and his natural parent under State law, the child is considered to be dependent on his natural parent if he was either living with, or receiving contributions for his support from the natural parent. Sections 216(h)(2)(A) and 202(d)(3) of the Act.

Under the Michigan statute applicable in this case, an adopted child continues to inherit from and through his natural parents. See Michigan Statutes Annotated, section 27.3178 (549) (1962 Revised Volume). Thus, in the present case, the adoption of the children by their stepfather does not extinguish inheritance rights from their natural father, the worker. The children were not living with their natural father at the time of their application for child's insurance benefits or at the time their father's disability began. Therefore, in determining the children's entitlement to benefits, the remaining question is whether their natural father was making contributions to their support. For purposes of section 202(d) of the Act, their father may be considered to be "contributing to [their] support" if he has been making regular and substantial contributions thereto. Carey v. Social Security Board, 62 F.Supp. 458 (W.D. Ky. 1945). If R was, in fact, making regular payments for the children's support immediately prior to becoming disabled, the fact that such payments were ordered by a court solely to satisfy a pre-existing support obligation is immaterial.

The evidence indicates that R continued his payments to the children until he became disabled. The court, in turn, permitted a suspension in payments until R would begin to receive his disability benefits. Under the "limited interruption" rule, contributions for support may be found even though the normal pattern of contributions was temporarily interrupted and there is evidence to indicate that the interruption was involuntary and that contributions would have continued had conditions permitted. In these circumstances, the interruption may be considered "involuntary" since R was unable to contribute because he was ill or disabled.

Accordingly, it is held that the dependency requirements of section 202(d)(1) of the Act were met, since R was, in fact, making regular payments for support of his children prior to the onset of his disability; therefore, the children are entitled to benefits as R's children.

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