SSR 70-22: SECTION 216(h)(3)(C)(ii). -- RELATIONSHIP -- ADOPTED CHILD ENTITLED AS DEEMED CHILD DESPITE LOSS OF INHERITANCE RIGHTS FROM NATURAL FATHER -- DEPENDENCY REQUIREMENTS

20 CFR 404.1101(d)(3)

SSR 70-22

A worker and his wife were divorced in 1961 but he continued to contribute to the support of the children born of that marriage until his death. The woman remarried and her spouse legally adopted these children in Oregon. The natural father, a domiciliary of Oregon, died in February 1967 and a child's claim was filed on his account. Under the law of Oregon, adopted children do not retain inheritance rights in the estate of their natural father. Held, the "deemed child" provision of section 216(h)(3) of the Act applies to a legitimate child of the worker who does not retain inheritance rights in the estate of his natural parent, the worker, following an adoption by another individual. The worker's legitimate children, therefore, met the relationship requirement. Since the worker contributed to the support of the children (then under age 18) until his death, the dependency requirement is also met. Accordingly, the children are entitled to benefits on their natural father's account.

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:

(3) An applicant who is the son or daughter of a fully * * * insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) [section 216(h)(2)], shall nevertheless be deemed to be the child of such insured individual if:

* * * * * * *

(C) in the case of a deceased individual --

(i) such insured individual --

(I) had acknowledged in writing that the applicant is his son or daughter,

(II) had been decreed by a court to be the father of the applicant, or

(III) had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter, and such acknowledgement, court decree, or court order was made before the death of such insured individual, or

(ii) such insured individual is shown by evidence satisfactory to the Secretary to have been the father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.

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:

(3) A child shall be deemed dependent upon his father . . . at the time specified in paragraph (1)(C) [at the time the worker died] unless, at such time, such individual was not living with or contributing to the support of such child and --

(A) such child is neither the legitimate nor adopted child of such individual, or

(B) such child has been adopted by some other individual.

For purposes of this paragraph, a child deemed to be a child . . . pursuant to . . . section 216(h)(3) shall be deemed to be legitimate child of such individual.

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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