1. Where the worker, a domiciliary of Illinois, had consulted an attorney regarding his proposed adoption of his stepdaughter; and where the natural father of the child had indicated he would agree to surrender to the worker all rights to the child when legal proceedings for adoption were formally initiated but such proceedings were never initiated because of the worker's illness, and subsequent death, held under applicable Illinois law, the requirements for "equitable adoption" are not met and thus the child has no rights to share as a child in the intestate personal property of the worker, and therefore the child cannot qualify as a child of the worker within the meaning of section 216(h)(2)(A) of the Act.
2. Where the worker in June 1966 filed an application for child's insurance benefits on behalf of his stepchild just 10 months after his marriage to the mother of the child; where under section 216(e)(2) of the Social Security Act as then in effect, the stepchild could not qualify as a child, since neither at the time the application was filed nor at the time of the worker's death in July 1966 had the step-relationship been in existence for a period of at least 12 months, and where, prior to a final decision on the application, section 216(e)(2) was amended, effective with respect to monthly benefits for months after January 1968 on the basis of applications filed in or after January 1968, under which, in pertinent part, a stepchild may qualify as such where the step-relationship at the time of the stepparent's death had been in existence for not less than 9 months, held since under section 202(j) of the Act, an application may, after the month of filing and before a final decision by the Secretary be deemed filed in the first month in which all requirements for entitlement are met, and since the child met the 9-month duration requirement under section 216(e)(2) as amended, all other requirements having been met, the stepchild qualifies as child of the worker with benefits payable beginning with February 1968.
R, the worker, and W, the mother of a minor child, C, by a prior marriage, were married in August 1965 in Illinois. In June 1966, R filed an application for child's insurance benefits on behalf of C. However, R, a domiciliary of Illinois, died in July 1966 prior to a determination as to C's entitlement to benefits.
W alleged that R intended to adopt C and that he had discussed the matter with his attorney, but that because of R's serious illness and financial difficulties the adoption proceedings were not instituted. W further pointed out that after her marriage to R, C's name had been legally changed to that of R, and that C was supported by R and was living in his household when he died. Evidence was also submitted that C's natural father had been contributing $50 monthly to C's support pursuant to court order. C's natural father alleged that he had verbally agreed to surrender all rights to C in the event legal adoption proceedings were initiated.
Section 202(d)(1) of the Act provides for child's insurance benefits and states in pertinent part:
Every child (as defined in section 216(e) of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, * * * shall be entitled to a child's insurance benefit * * *.
Section 216(e) of the Act, as in effect on the date C's application was filed stated in pertinent part that:
The term "child" means (1) the child or legally adopted child of an individual, and (2) a stepchild who has been such stepchild for not less than 1 year immediately preceding the day on which application for child's insurance benefits is filed or (if the insured individual is deceased) that day on which such individual died. * * *.
However, the 1967 Amendments to the Social Security Act (Public Law 90-248, enacted January 2, 1968) amended section 216(e) relative to a stepchild, (effective with respect to benefits payable for months after January 1968, on the basis of applications filed in or after January 1968) as follows:
The term child means: * * *
(2) a stepchild who has been such stepchild for not less than 1 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 9 months immediately preceding the day on which such individual died. (Emphasis supplied.)[*]
In determining family status with respect to a child of an insured worker, section 216(h)(2)(A) of the Act provides:
* * * the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant filed application, or, if such individual is dead, by the courts of the State in which he was domiciled at the time of his death, * * *. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.
It is clear that under section 216(e)(2) of the Act, as in effect at the time of C's application, C had not acquired the status of "child" of the worker, since neither at the time of her application nor at the time of R's death had the step- relationship existed for 1 year. However, it was contended that under Illinois law, the domicile of the worker, C, by application of the doctrine of equitable adoption, had the right to inherit intestate personalty from the worker and thus qualifies as a "child" under the provisions of sections 216(e)(1) and 216(h)(2)(A) of the Act, supra. In order for equitable adoption to occur, under Illinois law, certain legal requirements must be met; (1) there must be an express or implied contract to adopt between the adopting parent and the natural parent; (2) there must be legal consideration for the adopting parent's promise to adopt; and (3) absolute surrender of the child to the adopting parent pursuant to the contract of adoption. See Dixon National Bank of Dixon v. Neal, 125 N.E. 2d 463 (Ill., 1955); Weiss v. Beck, 115 N.E. 2d 768 (Ill., 1953); and Winkelman v. Winkelman, 178 N.E. 18 (Ill., 1931). See also SSR 65-20c, C.B. 1965, p. 5, and SSR 66-45, C.B. 1966, p. 11. The evidence in this case, however, does not establish that these requirements were met. First, there is absent any evidence of any contract to adopt, express or implied. The fact that the natural father had indicated he would consent to the adoption when presented with adoption papers is not evidence of a present contract to adopt. Secondly, there is absent any evidence of a legal consideration for the promise to adopt, e.g., the surrender of the child by the natural parent pursuant to a promise to adopt. Lastly, there was no showing of an absolute surrender of the child. The continuing contributions by the natural father toward C's support and the retention of visitation rights are inconsistent with such surrender, C, therefore, does not qualify as a child under section 216(e)(1) of the Act.
There remains the question as to whether C may qualify as a stepchild under section 216(e)(2) as amended, supra.
Section 202(j)(2) of the Act provides that an application may have prospective effect and states that:
An application for any monthly benefits under this section filed before the first month in which the applicant satisfies the requirements for such benefits shall be deemed a valid application only if the application satisfies the requirements for such benefits before the Secretary makes a final decision on the application. If upon final decision by the Secretary * * * such applicant is found to satisfy such requirements, the application shall be deemed to have been filed in such first month.
Since no final decision on C's application had been effected before enactment of the amended section 216(e)(2), her application may, therefore, under the provisions of section 202(j)(2), supra, be deemed to have been filed in the month of January 1968, the first month in which she could meet the definition of child under section 216(e)(2) as amended, since at the time of the worker's death, the step-relationship had existed for not less than 9 moths before such time.
Accordingly, it is held that C meets the definition of "child" of the deceased worker within the meaning of section 216(e)(2) of the Act as amended, and thus is entitled to child's insurance benefits under section 202(d) of the Act effective February 1968.
[*] The duration of step-relationship may be less than nine months, but not less than 3 months, where the death of the insured was accidental or his death occurred while he was in the military service. See section 216(k) of the Act.
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