20 CFR 404.1109(a)

SSR 66-43

Where, in accordance with Oklahoma law under which an adult may be legally adopted, a 19-year-old foster child of the deceased worker who had lived in the worker's household from age 6 months and been fully supported by him, was legally adopted by the worker's surviving spouse within 2 years of the worker's death, held, the individual although designated an "adult" under State law, may nevertheless be deemed the legally adopted child of the worker for social security purposes and if otherwise qualified become entitled to child's insurance benefits.

A fully insured worker, W, died on October 4, 1963, domiciled in Oklahoma. He left a widow, D, and a foster child, C, who had lived in W's household and had been entirely supported by him from about 6 months after her birth on August 5, 1946. On August 1, 1965, D filed a petition under the Uniform Adoption Act of Oklahoma to adopt C, then 19 years of age. The final decree of adoption became effective October 4, 1965, exactly 2 years after the worker's death. On October 6, 1965, D filed application on behalf of C for child's insurance benefits.

To qualify for child's insurance benefits under section 202(d) of the Social Security Act, as amended in 1965, a child age 18 or over who is under a disability which began before age 18, or a child age 18 through 21 who is attending school full time, must, among other requirements all of which C met, be the "child" of the deceased worker as defined in section 216(e) of the Act.

Section 216(e) provides, as pertinent to this case:

The term "child" means (1) the child or legally adopted child of an individual * * *. For purposes of clause (1), a person shall be deemed, as of the date of death of an individual, to be the legally adopted child of such individual if such person was at the time of such individual's death living in such individual's household and was legally adopted by such individual's surviving spouse after such individual's death but before the end of two years after the day on which such individual died * * *; except that this sentence shall not apply if at the time of such individual's death such person was receiving regular contributions toward his support from someone other than such individual or his spouse, or from any public or private welfare organization which furnishes services or assistance for children. * * *

Under Oklahoma law (15 Oklahoma St. Ann. 13 and 14), a female over 18 years of age is an adult. The question thus raised is whether an individual over 18 years of age, designated as an adult under State law and legally adopted within 2 years after the worker's death, is the worker's "legally adopted child" as defined in section 216(e) of the Act.

Section 216(h)(2)(A) of the Act provides that in determining whether an applicant is the child of an insured individual, such law shall apply 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.

The Oklahoma Uniform Adoption Act provides that an adult person may be adopted by any other adult person, with the consent of the person to be adopted, and that petition therefor shall be filed in the county where the adoptive parents reside. (10 Oklahoma St. Ann. 60.21.) This section further provides, in part: "After a hearing on the petition * * * a decree of adoption may be entered which shall have the legal consequences stated in Sec. 60.16." 10 Oklahoma St. Ann. 60.16 provides:

After the final decree of adoption is entered, the relation of parent and child and all the rights, duties and other legal consequences of the natural relation of child and parent shall thereafter exist between such adopted child and the adoptive parents adopting such child and the kindred of the adoptive parents. * * *

It appears, therefore, that the adoption, even though C was an adult when adopted, complied with the statutory requirements of State law. Since the requirements for a legal adoption were met under State law, the decree of adoption was perfected within the time specified in section 216(e), and the child had been living in the worker's household and had been supported entirely by him, C is deemed to be W's child as defined in section 216(e).

Accordingly, it is held that under section 202(d) of the Act, C is entitled to child's insurance benefits on W's earnings record.

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