SSR 91-6

EFFECTIVE/PUBLICATION DATE: 07/01/91

SSR 91-6: SECTIONS 202(d)(1) AND 216(e)(1) OF THE SOCIAL SECURITY ACT (42 U.S.C. 402(d)(1) AND 416(e)(1)) CHILD'S INSURANCE BENEFITS -- EFFECT OF A SECOND ADOPTION ON AN ADOPTED CHILD'S CONTINUED ENTITLEMENT TO BENEFITS -- WEST VIRGINIA

20 CFR 404.350, 404.352(b), and 404.356

The claimant was legally adopted by his grandfather, the worker, on June 15, 1985, in West Virginia. In April 1986, the worker became entitled to retirement insurance benefits, and the claimant became entitled to child's insurance benefits on the worker's earnings record. After his entitlement, the claimant was legally adopted by his natural mother in West Virginia. Entitlement to a child's benefit based on a legal adoption will terminate if the adoption is annulled, that is, determined never to have legally existed. Held, the second adoption of the claimant did not have the effect, under West Virginia law, of annulling the first adoption of the claimant. An adoption under West Virginia law can be revoked only if an interested person, who either did not consent to the adoption or was not properly served with the required notice of the adoption proceedings, successfully contests its validity or the adopted minor petitions the court for revocation of the adoption within 12 months of attaining majority. Neither of these events occurred in this case. Therefore, the claimant continued to be entitled to child's insurance benefits on the worker's earnings record after his adoption by his natural mother.

A question has been raised concerning the effect of a second adoption on a claimant's entitlement to child's insurance benefits.

Under the Social Security Act (the Act), the adoption of a claimant already entitled to child's insurance benefits on the earnings record of an individual who previously adopted the claimant does not terminate the claimant's entitlement to those benefits unless the second adoption revokes the original adoption. No such revocation occurred in this case. Therefore, the adopted claimant continued to be entitled to child's insurance benefits on the worker's earnings record after the second adoption.

On June 15, 1985, the claimant was first adopted by his grandfather, the worker, in West Virginia. This adoption was not contested by the claimant's natural mother. In April 1986, the worker became entitled to retirement insurance benefits and, pursuant to section 202(d) of the Act, the claimant became entitled to child's insurance benefits on the worker's earnings record. After his entitlement, the claimant was legally adopted by his natural mother in West Virginia.

Section 202(d)(1) of the Act authorizes payment of Social Security benefits to children of individuals entitled to retirement benefits. Section 216(e)(1) of the Act defines "child" to include a legally adopted child. In this case, there is no dispute that the claimant, as a legally adopted child, was entitled to child's insurance benefits on the worker's earnings record.

Section 202(d)(1) of the Act and 20 CFR 404.352(b) set out the provisions for termination of entitlement to child's insurance benefits. Adoption by someone other than the worker is not included among the terminating events, and therefore and adoption will not result in a termination of benefits.

However, an adopted child's entitlement to benefits is terminated if the adoption by the worker is annulled. This is so because in such a case the adoption is invalidated and determined never to have legally existed. Therefore, the issue in this case was whether the subject second adoption had the effect, under West Virginia law, of invalidating or annulling the first adoption. In the opinion of the Social Security Administration, the adoption of the claimant by his natural mother did not annul the previous adoption of the claimant by the worker.

An adoption under West Virginia law can be revoked or annulled only in the following situations: an interested party, who either did not consent to the adoption or was not properly served with required notice of the adoption proceedings, successfully contests the validity of the adoption; or the adopted minor petitions the court for revocation within 12 months of attaining majority. W.VA. CODE section 48-4-12. Neither of these events occurred in this case. Therefore, the claimant continued to be entitled to child's insurance benefits on the worker's earnings record after the claimant's adoption by his natural mother.