20 CFR 404.1101(d)(3)
C1 and C2 are the legitimate children of R and D, father and mother respectively, who were divorced in 1961. D married W on April 6, 1962, and W legally adopted C1 and C2 in Oregon on June 13, 1965. R died domiciled in Oregon and had contributed to the support of the children until his death on February 17, 1967. A claim was filed for C1 and C2 on his account.
Under the law of Oregon, as pertinent in this case, children do not retain inheritance rights from the natural father upon adoption by another individual.
Section 216(h)(2)(A) of the Act provides, in pertinent part, that in determining whether an applicant is the child of a deceased insured individual, 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 the insured individual was domiciled at the time of his death.
Section 216(h)(3) of the Social Security Act provides in pertinent part:
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The issue to be resolved is whether each child is a child of R for the purpose of entitlement to child's insurance benefits on his natural father's earnings record.
The children cannot qualify as the children of R, their natural father, under section 216(h)(2)(A) of the Act because under applicable State (Oregon) law, the children lost their right to inherit intestate personal property from him upon being adopted by another individual. However, the worker was shown by satisfactory evidence to have been the father of C1 and C2 and he was contributing to the support of the children, under age 18, at the time of his death. Each child is, therefore, "deemed" to be the child of R under section 216(h)(3) of the Act. Having established the relationship under section 216(h)(3), the issue of dependency must be determined.
Section 202(d)(3) of the Act provides in pertinent part:
Since it has been established that R was contributing to each of the children's support at the time of his death, these contributions also satisfy the dependency requirement. It should be noted, however, that if R had neither been contributing to the children's support nor living with them at the time of his death, the dependency requirement could not be met. This is true even if the children's relationship were established under one of the other provisions of section 216(h)(3), namely, a written acknowledgment, a court finding of paternity, or a court order for support.
Accordingly it is held that C1 and C2 each has the status of "child" under section 216(h)(3) of the Act and satisfies the dependency requirement of section 202(d)(3); thus, they qualify for child's insurance benefits under the Social Security Act.
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