SSR 65-40: SECTIONS 202(h) and 216(h)(2)(A). -- RELATIONSHIP -- PARENT'S INSURANCE BENEFITS -- "IN LOCO PARENTIS"

20 CFR 404.1110

SSR 65-40

Held, a claimant standing "in loco parentis" to an insured individual is not a parent of such individual within the meaning of section 202(h) of the Social Security Act.

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:

(A) has attained age 62,

(B) (i) was receiving at least one-half of his support from such individual at the time of such individual's death or, if such individual had a period of disability which did not end prior to the month in which he died, at the time such period began or at the time of such death, and (ii) filed proof of such support within two years after the date of such death, or, if such individual had such a period of disability, within two years after the month in which such individual filed application with respect to such period of disability or two years after the date of such death, as the case may be,

(C) has not married since such individual's death,

(D) is not entitled to old-age insurance benefits, or is entitled to old-age insurance benefits each of which is less than 82« percent of the primary insurance amount of such deceased individual . . ., and

(E) has filed application for parent's insurance benefits.

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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