20 CFR 404.1109(a)

SSR 65-37

In 1954 the worker and his wife took into their home a 6-month-old child. The worker did not live with his wife or the child after 1956, when he left the home because of marital difficulties. The wife who had kept and reared the child, legally adopted him on March 8, 1964, exactly 2 years after the worker died. Held, the child was not living in the worker's household at the time of the worker's death, and therefore cannot be deemed to be the legally adopted child of the worker under section 216(e) of the Act, for purposes of entitlement to child's insurance benefits on the worker's earnings record.

In 1954 a 6-month-old baby boy, C, was left with the worker and his wife who provided for his needs. They lived together until 1956 when the worker left the household because of domestic difficulties. Subsequently, he began living with another woman in 1960, and while living with her was arrested for a felony for which he was sentenced to a term of imprisonment. He died on March 8, 1962, while in prison. Meanwhile, the child, C, remained with and was reared by the wife. She has worked regularly for the last 15 years and aside from some contributions (mentioned below) that the worker may have made, has supported the child since 1956. After the worker's death, she instituted proceedings for adoption of the child, and a decree of adoption was entered March 8, 1964, exactly 2 years after the worker's death.

In March 1964 the widow, then 43 years old, filed application for mother's insurance benefits for herself and child's insurance benefits for the boy. She alleged that the worker had contributed to her support and the boy's as long as he was able to, i.e., until he was arrested. She further alleged that during his imprisonment the worker and she had become reconciled and were planning to live together upon his release from prison, but his death 2 weeks before the date he was to be released prevented them from carrying out these plans. Evidence submitted in proof of these allegations was marked by serious discrepancies, and conflicted with other evidence indicating that the worker had not made the contributions allege, and that there had never been any reconciliation.

Section 202(g) of the Act provides in effect that the widow of a worker is eligible for mother's insurance benefits on that worker's earnings record if, among other conditions, she has in her care a child of the worker entitled to child's insurance benefits. (For entitlement to widow's insurance benefits, a widow need not have an entitled child, or any child, in her care, but she must have attained aged 62, a requirement which the claimant widow does not yet meet.) Section 202(d) provides that the "child (as defined in section 216(e))" of a deceased worker can be entitled to child's insurance benefits under specified conditions.

In the present case, the widow can be entitled to mother's insurance benefits if the boy is entitled to child's insurance benefits; and his entitlement to such benefits depends upon whether he is the "child (as defined in section 216(e))" of the worker. Unless he satisfies this requirement, neither he nor his adoptive mother can be entitled to the benefits claimed.

Section 216(e) provides, in the case of a deceased worker, that the term "child" means his child or legally adopted child or a person who has been his stepchild for at least one year immediately preceding the day the worker died. The child claimant in the present case does not meet any of these requirements. However, section 216(e) further provides that:

* * * 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. * * * [Italics added.]

The child, C, was legally adopted by the worker's widow within 2 years after the day the worker died, and at the time the worker died was being supported exclusively by the widow. Whether he can be deemed (under the provisions quoted above) to be the worker's legally adopted child (and thus eligible for child's insurance benefits) depends upon whether he was living in the worker's household.

For a child to have been "living in the worker's household" at the time the worker died, within the meaning of section 216(e), they must at that time have been sharing a common abode under conditions which indicate more than mere coincidence of residence. The requirement could be met even though the worker died while away from home during a period of separation, provided that the separation was expected to be brief or temporary in nature, e.g., for a trip in connection with his business or occupation. Where the worker has left the child and the common abode because of marital difficulties, making his home elsewhere, the child is not living in the worker's household unless and until there is a resumption of living together as parent and child in the same abode.

The facts set out above show that at no time after 1956 did the worker and the boy live in the same household; rather, the boy has lived since 1956 in the household of his foster mother, the worker's wife. The worker's departure from this household was not a temporary absence, required by the necessities of his work or for treatment of illness, but resulted from domestic difficulties and was intended to be a permanent separation. Even if the contributions alleged were made by him and continued until the time of his death, they would not support a finding that the boy was at that time living in the worker's household. Nor would such a finding be justified even if, as alleged by the widow, she and the worker had patched up their differences and were planning to live together when the worker's death intervened.

Since the deceased worker did not have an abode in common with the child claimant after leaving his wife and the child in 1956, it is held that the child was not living in the worker's household in March 1962 when the worker died, and cannot be deemed to be the worker's legally adopted child under section 216(e). Therefore, neither the child nor his adoptive mother are entitled to the benefits claimed.

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