20 CFR 404.1110
R died in October 1963 at age 35 while domiciled in California. The following month, his elder sister, W, filed an application for parent's insurance benefits on his earnings record. She stated that R's parents died when he was about 4 years old, and that thereafter she had complete charge of R's upbringing until he was about age 19 and in all respects acted as his foster parent. She established that at the time of R's death she had been receiving at least one-half her support from him.
Section 202(h)(1) of the Act, 42 U.S.C.A. 402(h)(1), provides in pertinent part that every parent of an individual who died fully insured is entitled to parent's insurance benefits if such person:
The sole question raised, all other requirements having been met, is whether the claimant as an individual "in loco parentis" to the deceased worker is a "parent" within the meaning of section 202(h) of the Social Security Act.
The term "parent" is defined in section 202(h)(3) of the Act as the mother or father of an individual, a stepparent of an individual by a marriage contracted before such individual attained the age of 16, or an adopting parent by whom an individual was adopted before he attained the age of 16. Section 216(h)(2) provides that in determining whether an applicant is the parent of an insured individual under the Act, the Secretary of Health, Education, and Welfare is to apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the individual was domiciled at the time of his death.
Accordingly, since R was domiciled in the State of California at the time of his death, the law of California applies in determining W's states as R's parent. There is no provision in the California statues under which an individual standing "in loco parentis" to a deceased individual may share in the intestate personal property of such individual the same as a natural parent. Therefore, it is held that W does not have the status of parent of R within the meaning of the Social Security Act and, accordingly, cannot become entitled to parent's insurance benefits.
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