SSR 61-46. ADOPTION OF CHILD BY WORKER'S SPOUSE AFTER WORKER'S DEATH

Where a foster child was living in the household of a worker when the worker died, was being fully supported by him and his wife prior to his death, and was legally adopted by the worker's widow within two years after he died, held, the child is deemed to be the legally adopted child of the worker as of the date of death for purposes of entitlement to child's insurance benefits.

In January 1951, C, a child then two months old, was given by his mother to H and W, a married couple, to bring up. When C was about two years old, H and W talked with a lawyer about adopting him but took no further action about adoption because of the expense. However, H and W raised the child in their home, fully supported him, and treated him in every way as their own. After H's death in December 1959, W continued to bring up C as her son.

In June 1960, W filed application on H's earnings record for mother's insurance benefits for herself and for child's insurance benefits on C's behalf. C was denied benefits solely because he was not H's child for purposes of entitlement to child's benefits on H's earnings record. The disallowance of C's claim resulted in the disallowance of W's application for mother's insurance benefits because she did not meet the requirement in section 202(g)(1)(E) of the Social Security Act in that she did not have in her care "a child of such individual entitled to a child's insurance benefit." If C had qualified as H's child, both he and W would have been entitled to their respective benefits beginning December 1959, the month in which H died, since all other requirements for entitlement were met.

After receiving notice of the disallowances in July 1960, W instituted adoption proceedings and on September 10, 1960, the court issued a final decree of adoption declaring C to be W's adopted child and to have all rights of her child and heir at law. Two weeks later W submitted a copy of the decree to the Social Security Administration and requested a reconsideration in the light of this new evidence.

The questions to be resolved are whether C's adoption by W changes his status in relation to H, and what is the first month (if any) for which he can be entitled to benefits.

Section 202(d) provides for the payment of child's insurance benefits to a child (as defined in section 216(e)) of a fully or currently insured individual if the child meets certain requirements.

Section 216(e) provides:

The term "child" means (1) the child or legally adopted child of an individual, and (2) a stepchild * * *. For purposes of clause (1), a person shall be deemed, as of the date of death of an individual, to be the legally adopted child of such individual if such person was at the time of such individual's death living in such individual's household and was legally adopted by such individual's surviving spouse after such individual's death but before the end of two years after the day on which such individual died * * *; except that this sentence shall not apply if at the time of such individual's death such person was receiving regular contributions toward his support from someone other than such individual or his spouse, or from any public or private welfare organization which furnishes services or assistance for children. * * *

When H died on December 15, 1959, C was living in his household and was completely dependent for support upon him and W, without contributions from any other source. On September 10, 1960, less than one year after H's death, W, his surviving spouse, legally adopted C. It is, therefore, held that C is deemed to be H's legally adopted child as of December 15, 1959. Since C meets all requirements for entitlement to benefits as of December 1959, effective with that month he is entitled to child's insurance benefits and W is entitled to mother's insurance benefits. The initial determinations disallowing their applications were not erroneous when made, but the subsequent legal adoption of C changes his status retroactive to December 1959. Accordingly, on reconsideration, benefits must be awarded effective December 1959.

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