Rescinded 1978
SSR 68-42a: Sections 202(d), 216(e), 216(h)(2)(A).— Relationship—Adopted Child's Right of Inheritance From Natural Father—Withdrawal and Refiling of Application
20 CFR 404.615, 404.1101, and 404.1109
SSR 68-42a
Pursuant to an application for child's insurance benefits filed in January 1961, the child was determined entitled to benefits based on the earnings record of his natural father, a disability insurance beneficiary. Subsequently, the parents of the child, domiciliaries of Illinois, were divorced and the mother remarried. In May 1962, the stepfather adopted the child in Illinois and accordingly, pursuant to section 202(d)(1)(D) of the Social Security Act, the child's benefits were terminated. In November 1965, a request for withdrawal of the application of January 1961 was filed, together with a second application for child's benefits on the earnings record of the natural father. Under the law of Illinois, an adopted child retains the right to inherit from his natural parent. It was established that if the withdrawal was approved, no one would be disadvantaged thereby and the Administration would recover all benefits paid during the period of the child's entitlement. It was further established that the child meets all conditions of entitlement based on the application of November 1965. Held, (1) since all conditions for withdrawal of an application were met, the request for withdrawal was approved and (2) since the effect of withdrawal is the same as if no application had been filed, and since the child under Illinois law may inherit from the natural parent, and thus meets the definition of "child" under the Act, and meets all other conditions of entitlement, the child is determined entitled to child's insurance benefits based on the second application.
This case is now before the Appeals Council following its action granting the request of the claimant [W] for review of the hearing examiner's decision concerning her claim for child's insurance benefits on behalf of [S and T].
The general issue in this case is whether [S and T] are entitled to child's insurance benefits based on the application filed on November 15, 1965. The specific issues are whether [S and T] meet the definition of a child of the wage earner, [R], under sections 216(e) and 216(h)(2)(A) of the Social Security Act, as amended; and, if so, whether [S and T] meet the dependency requirements of sections 202(d)(1)(C) and 202(d) of the Social Security Act, as amended.
Brief statements of the pertinent facts, of the applicable provisions of the Social Security Act, and of Social Security Administration Regulations No. 4 are set out hereinafter.
Evidence in addition to that in the record before the hearing examiner has been received, made part of the record, and considered by the Appeals Council.
In his decision, the hearing examiner found that [S and T] are the natural, legitimate children of the wage earner, [R], and the claimant [W]; that [W] and the wage earner were divorced and that she later married [X]; that [S and T] were legally adopted by [X and W] husband and wife, on May 4, 1962; that at the time the current application for child's insurance benefits was filed on November 15, 1965 [S and T] were not living with or receiving contributions for their support from their natural father, the wage earner, and were not dependent on the wage earner at the time required by section 202(d)(1)(C) and 202(d)(3) of the Social Security Act, as amended. He concluded that the children are not entitled to child's insurance benefits based on the application filed on November 15, 1965.
The wage earner became entitled to Social Security disability insurance benefits beginning November 1960 based on a determination that he had become disabled as of June 4, 1954. On January 20, 1961, [W] filed an application for child's insurance benefits on behalf of [S and T]. The children are the natural legitimate children of the wage earner and [W], who divorced the wage earner after the birth of her children and subsequently married [X]. The children became entitled to child's insurance benefits on the wage earner's account beginning November 1960. Benefits were terminated effective May 1962 in accordance with section 202(d)(1)(D) of the Social Security Act because of the legal adoption of the children by [X], their stepfather.
Section 202(d)(1) of the Social Security Act, as amended, provides, as pertinent here, for the payment of child's insurance benefits to the child of an individual entitled to old-age or disability insurance benefits provided certain requirements, among them a dependency requirement, are met.
Section 216(h)(2)(A) of the Act provides, inter alia, that in determining whether an applicant is the child of a fully currently insured individual for purposes of this title, 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 is domiciled at the time the application is filed. Applicants who, according to such law, would have the same status relative to taking intestate personal property as a child of the insured individual shall be deemed to be such a child for the purpose of Title II of the Social Security Act.
Under Illinois law, applicable in this case, children adopted by someone other than the natural parent retain the right to inherit instate personal property from the natural parent. In Re Tilliski's Estate 390 Ill. 273 (1945); In Re Leichtenburg's Estate, 7 Ill. (2d.) 545 (Jan. 1956). Therefore, [S and T] retain their inheritance rights from the wage earner after their adoption by [X], and they meet the definition of a child of the wage earner under section 216(h)(2)(A) of the Social Security Act.
Section 202(d)(1)(C) of the Social Security Act, as amended, provides, as pertinent here, that a child must be dependent upon the wage earner (i) if such individual has died, at the time of such death, or (iii) if such individual had a period of disability benefits, at the beginning of such period of disability, or at the time he became entitled to such benefits.
Section 202(d)(3) of the Social Security Act, as amended, provides, as pertinent part, that a child (as hereinabove defined) shall be deemed dependent upon his father unless at the required time of dependency such individual was not living with or contributing to the support of the child, and . . . such child has been adopted by some other individual.
There is no merit to the contention of the claimant's attorney that child's insurance benefits upon the application of January 20, 1961, were improperly terminated effective May 1962 following the adoption of [S and T] by their stepfather. It is true that under Illinois law the children retained rights of inheritance in the wage earner's estate even after their adoption and that they would, therefore, still have the status of "children" of the wage earner under sections 216(e) and 216(h)(2)(A) of the Social Security Act. However, section 202(d)(1)(D) of the Act which requires termination of benefits on the earnings record of a child's natural father when the child is adopted by someone else during the father's lifetime, makes no distinction between adoption which cuts off the child's inheritance rights from his natural father and adoption which does not. That termination action was required under the circumstances and the applicable law.
However, the foregoing is not dispositive of this case. Though an adoption is specifically stated in the Act to be a terminating event as described above, an adoption is not stated in the Act, under the circumstances of this case, to be a bar to initial entitlement where all other factors of entitlement are established. The wage earner has been under a disability under the Social Security Act since June 4, 1954 * * *. In finding the children not dependent on the wage earner at the time required by sections 202(d)(1)(C) and 202(d)(3) of the Social Security Act, the hearing examiner appears not to have considered the possibility of establishing dependency at the time the wage earner became entitled to disability insurance benefits (January 6, 1961), or at the beginning of the wage earner's period of disability (June 4, 1954). A statement by the claimant dated May 20, 1967 * * * reveals that at the beginning of the wage earner's period of disability, June 4, 1954, the claimant was married to the wage earner, and she and these children were living with and receiving complete support form the wage earner. There was no other source of income for the family. The Appeals Council finds, therefore, that the children were dependent upon the wage earner at the beginning of his period of disability, as required by section 202(d)(1)(C) of the Act. Under the facts in this case, they are deemed dependent upon him at the time as the consequence of the provisions of section 202(d)(3) of the Act.
* * * * * * *
The claimant has requested that she be permitted to exercise a privilege and withdraw the first application for benefits under the remedial provisions of section 404.615 of Regulations No. 4 of the Social Security Administration. * * * That section of the regulations provides for withdrawal of an application after it has been adjudicated if (1) a written request for withdrawal is filed, (2) the claimant is alive at the time the request for withdrawal is filed, (3) the Administration approves the request for withdrawal, (4) any other person whose entitlement would be rendered erroneous by such withdrawal consents in writing thereto, and (5) there is repayment of the amount of benefits previously paid because of the application that is being withdrawn, or it can be established to the satisfaction of the Administration that repayment of such amount is assured. The above cited Regulation also specifically states that where a request for withdrawal of an application is approved, such application "will be deemed not to have been filed" (emphasis supplied). It follows that all actions taken with respect to a withdrawn application must be deemed not to have occurred. Thus, if, in the instant case, a withdrawal of the application of January 20, 1961, were approved, there could be no bar to entitlement on the application of November 15, 1965.
The withdrawal of the application for child's insurance benefits filed on January 20, 1961, would be advantageous to these children and not inconsistent with the purposes of the Social Security Act. On the basis of the application for child's insurance benefits filed on November 15, 1965, benefits may be payable retroactively to November 1964 and would substantially exceed the amount of benefits previously paid for the months of November 1960 through April 1962. Thus, recovery of the benefits previously paid, by adjustment against the first benefit check under the new claim, is assured. There is no other persons whose entitlement would be rendered erroneous. The Appeals Council, therefore, approves the claimant's request for withdrawal of the application of January 20, 1961, subject to full recovery of the benefits paid on that application.
Under consideration of all the evidence now of record, and the applicable law and regulations, the Appeals Council makes the following findings:
That [S and T] meet the definition of a child of the wage earner, [R] under sections 216(e) and 216(h)(2)(A) of the Social Security Act, as amended;
That [S and T] were dependent on that wage earner at the time he became disabled on June 4, 1954, and thus, meet the dependency requirements of section
That [S and T] meet all other requirements for entitlement to child's insurance benefits based on the application of November 15, 1965;
That the adoption of [S and T] on May 4, 1962, does not preclude their entitlement to child's benefits based on the application dated November 15, 1965; and
That the application for child's insurance benefits dated January 20, 1961, has been effectively withdrawn in accordance with the requirements of section 404.615 of Regulations No. 4 of the Social Security Administration.
It is the decision of the Appeals Council that [S and T] are entitled to child's insurance benefits on the account of the wage earner, [R], based on the application filed on their behalf on November 5, 1965. The decision of the hearing examiner is reversed.