SSR 78-27: SECTIONS 202(d) and 216(e) (42 U.S.C. 402(d) and 416(e)) CHILD'S INSURANCE BENEFITS -- DEFINITION OF GRANDCHILD -- ADOPTION AFTER WAGE EARNER'S DEATH BY SURVIVING SPOUSE
20 CFR 404.320 and 404.1109(a) and (c)
- Held, Section 216(e) of the Social Security Act precludes entitlement of a child adopted by a surviving spouse if, at the time of the wage earner's death, the child was receiving regular contributions for support from someone other than the wage earner or the wage earner's spouse, including a public or a private welfare organization. However, a grandchild of the wage earner who is legally adopted after the wage earner's death by his surviving spouse may be entitled to benefits if, at the time of his death, the child's parents were not living in his household and making regular contributions toward the child's support and he was providing at least one-half of the child's support.
On July 19, 1976, "C", the widow of a wage earner who died fully insured, filed applications for mother's insurance benefits and child's insurance benefits on behalf of J. J is the grandson of the wage earner and of C, since he is the child of their daughter. The grandson lived at all times from his birth, and until the time of death of the wage earner in March 1976, with the wage earner and his wife. Neither the mother nor the father of J contributed to his support. The wage earner provided over one-half of the support of J at all times. In addition, the welfare department did provide sums ranging from $16.00 to $108.00 per month from January 1974 through November 1976.
In July 1976, C legally adopted J. J's natural parents were neither deceased nor disabled at the time the wage earner died. Neither parent of J was regularly living in the household of the wage earner through the year preceding his death, and neither was contributing regularly (if at all) to the child's care.
The Social Security Act, section 216(e), provides three groups of persons who qualify as a child of the wage earner. The first group includes the natural or legally adopted child of the wage earner. Although J was not the natural or legally adopted child of the wage earner, J could qualify as a child within the meaning of the Act, since the term includes a child adopted by the surviving spouse within two years of the death of the wage earner. However, a child other than a grandchild adopted after the death of the wage earner can qualify for benefits only if the child did not receive regular contributions toward his/her support (as was true in this case) from a public or private children's welfare organization. The second group of individuals who can qualify as a child includes step-children. This group is not pertinent to this case. The third group of individuals who can qualify as a child includes grandchildren (or stepgrandchildren) of either the wage earner, or the wage earner's wife. Under § 216(e) there are two ways in which a grandchild may become entitled to benefits as a child of the wage earner. The first concerns a grandchild whose natural or adoptive parents were deceased, or under a disability. J's mother was neither deceased nor under a disability. The alternate way in which a person who is a grandchild may be entitled to child's benefits occurs if "such person was legally adopted after the death of such individual's surviving spouse in an adoption that was decreed by a court of competent jurisdiction within the U.S. and such person's natural or adopting parent or stepparent was not living in the same household and making regular contributions toward such person's support at the time such individual died." See § 216(e)(3)(B). In this case, J was legally adopted by the wage earner's surviving spouse in an adoption that was decreed by a court of competent jurisdiction. Neither J's mother nor father was living in the household, at least not regularly, and neither was making regular contributions toward J's support at the time the wage earner died, or at any time.
Under § 216(e) requirements for entitlement of a grandchild who is adopted by a surviving spouse differ from the requirements which must be met by a non-grandchild who is adopted by a surviving spouse. For the non-grandchild, that section provides that such a child cannot qualify for benefits if regular contributions toward his support were received from someone other than the wage earner or his spouse, or from a public or private children's welfare organization. However, § 216(e) does not contain the same provision for a grandchild. The dependency requirements for a grandchild are stated in § 202(d)(9). J meets these requirements as he had lived with the wage earner since his birth and had received over one-half of his support from the wage earner.
Congress is establishing benefits for a grandchild, provided in section 216(e)(3)(B) a separate method by which such a child adopted by a surviving spouse could qualify for benefits, as summarized in the quotation above.
Since J is not merely a child adopted by the wage earner's surviving spouse but is also a grandchild of the wage earner, he is entitled to child's benefits if he meets the requirements for entitlement to child's benefits as a grandchild who has been legally adopted by a surviving spouse. Since he meets the requirements of § 216(e)(3)(B) and the requirements of § 202(d)(9), he qualifies for benefits. Accordingly, C, as the widow of a fully or currently insured individual, is entitled to monthly benefits, since she has a child in her care who is entitled to benefits.
 A grandchild who is legally adopted by a wage earner before his or her death may also be entitled to child's benefits. See § 202(d)(8).
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