20 CFR 404.1109
Shortly after the birth of C on May 2, 1953, the natural mother relinquished custody of C to the claimant, W, and her husband, R. C continued to live with W and R, and was fully supported by them. R died on August 16, 1960, domiciled in Tennessee. Subsequently, W petitioned the appropriate Tennessee court for adoption of C. The necessary investigation was conducted and completed, and a hearing held. The court's decision approving the adoption was rendered on June 29, 1962; however entry thereof in the record, through no fault of W, was not made until September 18, 1962, more than 2 years after R's death.
On October 8, 1962, W filed application on R's social security earnings record for mother's insurance benefits for herself and for child's insurance benefits on C's behalf. The application for child's benefits was initially disallowed on the basis that C did not have the necessary legal relationship to R within the meaning of section 216(e) of the Social Security Act. Consequently, W's application was disallowed because she did not meet the requirement in section 202(g) of the Act in that she did not have in her care "a child of such individual [R] entitled to child's insurance benefits."
W then returned to the court and was successful in obtaining a nunc pro tunc order to correct the record to show the adoption decree effective retroactively as of the actual date of the court's decision, i.e., June 29, 1962. W submitted this additional evidence to the Administration and again requested benefits for herself and C.
Section 216(e) of the Act provides, in effect and as pertinent here, that a child may be deemed to be the legally adopted child of a worker as of the date of death of the worker, provided that (1) at the time of the workers's death, the child was living in the worker's household, (2) no one other than the worker or his spouse was making regular contributions to the child's support, and (3) he was legally adopted by the surviving spouse of the worker before the end of 2 years after the day of the worker's death. A child meeting this provision may be entitled under section 202(d) to child's insurance benefits where the worker was fully or currently insured and certain other requirements specified in section 202(d) of the Act are met. In this case, C met all such requirements.
The question to be resolved is whether C had the necessary legal relationship to R under section 216(e) of the Act to qualify for benefits by reason of his adoption by R's surviving spouse within 2 years after R's death. The specific issue is whether under Tennessee law the nunc pro tunc order had the legal effect of changing the effective date of the adoption decree previously issued by such court so as to make it effective within the 2-year period.
The actions and manner by which minutes are kept by a court may cause a decree to bear a different date from that upon which the case was heard and the decision made. Thus, under Tennessee law, when the delay of the court in deciding the case at the hearing, or the delay of counsel or the clerk in drawing or entering the decree after the decision, works an injury to any party, especially the successful party, it is the duty of the court on application by such interested party to have such decree entered as of its proper date nunc pro tunc. W timely availed herself of this provision for correction of C's adoption decree, causing it to be effective as of the actual date of the decision by the court, which date fell within the 2-year period after R's death.
Accordingly, it is held that C was adopted by W within the time limit provided by section 216(e) of the Act and, therefore, since all other requirements were met, C is entitled to child's insurance benefits and W is entitled to mother's insurance benefits on R's earnings record retroactively under section 202(j)(1) of the Act of October 1961, the twelfth month before the month applications therefor were filed.
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