20 CFR 404.503

SSR 70-3

Where a social security beneficiary dies before benefits due her are paid, resulting in an underpayment, and is survived by minor stepchildren as well as parents, none of whom were entitled to monthly benefits on the deceased's earnings record for the month of her death, held, the stepchildren of the deceased, who qualify as "children" within the meaning of section 204(d) of the Social Security Act, are of a higher priority than the parents for the purpose of payment of the underpayment.

J, a beneficiary under title II of the Social Security Act, died before social security benefits due her were paid. Under section 204 of the Act, the amount unpaid at the time of her death became an underpayment. She was survived by her parents as well as her two stepchildren were entitled to social security benefits for the month of her death. A request for payment of the underpayment to J's two minor stepchildren has been filed on their behalf. J's parents have also requested the underpayment, contending that the relationship between J and her two stepchildren ended upon J's death and therefore the underpayment should be paid to them.

Section 204(d) of the Social Security Act provides that amounts due to deceased beneficiary under the retirement, survivors, and disability insurance programs, will be paid to individuals according to the following order of priority: The deceased beneficiary's (1) spouse either living in the same household at the time of his death, or entitled to a monthly benefit on the same earnings record for the month of his death; (2) child or children entitled to a monthly benefit on the same earnings record for the month of his death; (3) parent or parents entitled to a monthly benefit on the same earnings record for the month of his death; (4) spouse not falling within the provisions of (1) above; (5) child or children not falling within the provisions of (2) above; or (6) parent or parents not falling within the provisions of (3) above, payment will be made to the "legal representative" of the estate of the deceased beneficiary.

At issue here is whether the stepchildren or the parents are entitled to receive the underpayment. This depends on whether the term "child or children" in (5) above includes stepchild or stepchildren of the deceased beneficiary. Section 216(e) of the Act makes clear that it does, as follows:

Section 216. For the purpose of this title --

* * * * * * *

(e) the term "child" means * * * a stepchild who has been such stepchild for not less than one year immediately preceding the day on which application for child's insurance benefits is filed or (if the insured individual is deceased) not less than nine months immediately preceding the day on which such individual died * * * (Emphasis supplied.)

Since section 216 defines "child or children" for the purposes of title II, it is reasonable to assume that Congress had that definition in mind when they enacted section 204(d) and intended to include a "stepchild" within the meaning of "child." However, even if section 216(e) did not so clearly include "stepchild" in the definition of "child," a stepchild of the decedent could not, for the reasons outlined below, be accorded a lower priority than a parent with respect to receiving an underpayment under section 204(d). Section 202(d) of the Act, providing for children's benefits, permits an insured individual's stepchildren to qualify for monthly benefits on his earnings record while he is living as well as when he is deceased. A parent, on the other hand, may qualify for monthly benefits under section 202(h) of the Act on an insured's earnings record only when the insured is deceased. Thus, Congress did not consider it anomalous (with respect to the more significant monthly benefits) to accord an insured's stepchildren more favorable treatment with respect to the payment of benefits than his parents.

Monthly benefit payments to a stepchild are not terminated upon the death of the worker, i.e., the steprelationship on which benefit rights are predicated is not considered terminated by the worker's death. Thus, as indicated in section 216(e) above, the term "child" includes a "stepchild" if the insured individual is deceased. Nor does the death of a spouse end the parent-step-child relationship.[1] Therefore, in the absence of statutory language to the contrary, an insured worker's death does not terminate a steprelationship for purposes of the right to receive a title II underpayment. Accordingly, the term "child" or "children" in section 204(d) (5) includes a stepchild or stepchildren. Therefore, it is held that J's stepchildren have a higher priority of entitlement (5) than that of her parents, who could qualify under priority (6) above.

[1] See SSR 69-66, C.B. 1969, p. 168, for a discussion of the effect of death on step relationship in a title XVIII situation.

Back to Table of Contents