AR 86-21(2)


AR 86-21(2): Adams v. Weinberger, 521 F.2d 656 (2d Cir. 1975) Contributions to Support re: Posthumous Illegitimate Child Title II of the Social Security Act.


Whether the contributions for support by the father of an unborn child commensurate with the needs of the unborn child at the time of the father's death establish support of the child in order to entitle the child to survivor's benefits as a deemed child, even though the contributions to the child or the child's mother were not regular and substantial.


Section 216(h)(3)(C)(ii) of the Social Security Act (42 U.S.C. 416(h)(3)(C)(ii); 20 C.F.R. 404.366(a)(2); Social Security Ruling 68-22



Adams v. Weinberger, 521 F.2d 656 (2nd Cir. 1975)


This ruling applies to determinations or decisions at all administrative levels (i.e., initial, reconsideration, administrative law judge hearing and Appeals Council).
To the extent indicated, this Ruling expands the tests for dependency status, as set forth in SSR 68-22, in the Second Circuit.


In June of 1969, Peter McGinn and Rossini Adams began sharing his Manhattan apartment above the restaurant that he operated even though McGinn was married and the father of four children. Ms. Adams maintained a mailing address and a room at her mother's home in Brooklyn. On weekends Mr. McGinn visited his wife and children. While Mr. McGinn and Ms. Adams were maintaining their joint abode in the Manhattan apartment, she became pregnant. She continued to work as a bookkeeper while Mr. McGinn worked at his restaurant. During this period he contributed money to her whenever she asked for it and, on occasion, even without her request. These payments totalled between $200.00 and $300.00 over the seven month period of joint habitation. Mr. McGinn gave Ms. Adams the $100.00 registration fee for the hospital room that he knew she would need when the baby arrived. Additionally, he offered to pay the entire hospital bill which he assumed would amount to approximately $1,000.00.

In January of 1970, Ms. Adams became depressed over Mr. McGinn's class of friends and returned to her mother's home in Brooklyn to await the birth of the child. There was no agreement between the two as to reconciliation or marriage. After moving out, Ms. Adams would visit Mr. McGinn at his restaurant several times each week. Mr. McGinn tried to convince Ms. Adams that she should not work during the later stages of her pregnancy and that she should return to the apartment where she could do some of his bookkeeping if she felt the need to remain active. Mr. McGinn requested that Mr. Adams give him the child to keep and care for if she did not want it after its birth.

On February 18, 1970, Mr. McGinn was murdered. On March 8, 1970, Devlin Adams was born. Ms. Adams sought child's insurance benefits on the earnings record of Mr. McGinn which were denied through the hearing level. At the hearing level the Administrative Law Judge (ALJ) denied Devlin Adams' claim for surviving child's benefits because under section 216(h)(3)(C)(ii) there was insufficient evidence of paternity and at the time of his father's death, Mr. McGinn had not been living with him or contributing regularly or substantially to his support. Ms. Adams appealed to the United States District Court for the Eastern District of New York which upheld the Secretary's decision (except that it held that there is no legal requirement that the support be substantial). Ms. Adams appealed to the United States Court of Appeals for the Second Circuit which reversed the district court's decision.


The Court of Appeals held that the appropriate test for determining whether the worker was "contributing to the support" of his illegitimate posthumous child is whether the support was commensurate with the needs of the unborn child at the time of the father's death. Since Mr. McGinn had provided the unborn child's mother with a rent-free apartment, had sporadically contributed cash to her support and had made payment towards her hospital bill for the birth of the child, the court concluded that the test was met in this case.


Under the Social Security Administration's (SSA's) regulations implementing section 216(h)(3)(C)(ii) of the Social Security Act (20 C.F.R. 404.366(a)(2)), "contributions for support" of the applicant must be made regularly and must be substantial. In order to be substantial, contributions must be large enough to meet an important part of the ordinary living costs of the applicant. A consistent pattern of contributions is sufficient to show regularity. Under SSR 68-22 and SSA's operating instructions, the "living with" or "contributing to support" requirements are established for the posthumous child of a worker if the worker was living with, or contributing to the support of, the child's mother at the time of the worker's death.

The court in Adams held that the measure of support given to the mother is not the test applicable to the issue of support of the child since the dependency of the mother is not the issue. Further, since an unborn child is totally dependent on its mother for its "human needs," the "regular" contributions requirement is "purposeless." The test for dependency is whether the father's support was commensurate with the needs of the unborn child at the time of the father's death. Such support, depending on the facts of the case, can consist of even relatively small amounts.


This ruling applies only to cases involving an applicant for child's benefits as a deemed child under Section 216(h)(3)(C)(ii) of the Social Security Act who resides in Connecticut, New York, or Vermont at the time of the determination or decision at any level of administrative review, i.e., initial reconsideration, administrative law judge hearing or Appeals Council review and who was born after the worker died.

Such an applicant will be deemed to be the worker's child when satisfactory evidence establishes that the worker is the father of the child and the worker's contributions to his unborn child were commensurate with the needs of the unborn child at the time of the worker's death, even though those contributions were not regular and substantial.


Date of Publication.

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