20 CFR 404.1607

SSR 70-32

An adult child, residing in the State of Nevada and receiving retirement insurance benefits on his mother's behalf as her representative payee while she is institutionalized, has used part of those benefits for his own support, alleging he is disabled and dependent on her. Under Nevada law, a parent is not liable for the support of an adult child, unless that child is under a mental infirmity of such severity that he is unable to support himself, or is an applicant for, or recipient of, public assistance. Held, such expenditure by the payee for his own support is not proper since he is not a "legally dependent child" of the beneficiary within the meaning of section 404.1607 of Regulations No. 4 of the Social Security Administration.

A, a retirement insurance beneficiary, has been hospitalized since early 1965 at which time she became incapable of handling her own social security benefits. Her adult child, L, was named representative payee to receive A's benefits in accordance with the provisions of section 205(j) of the social Security Act L has used a portion of A's benefits for his own support, asserting that he is her dependent child with no income of his own, has not worked since 1955, and is disabled.

Section 205(j) of the Act provides, as pertinent here, that when it appears to the Secretary that the interest of the beneficiary would be served thereby, certification of payment may be made either for direct payment to the beneficiary or for his use and benefit to a relative or some other person. Payments are considered for the use and benefit of the beneficiary when, among other purposes, they are used for the support of a person whom the beneficiary is legally obligated to support. Section 404.1607 of the Social Security Administration Regulations No. 4 (20 CFR 404.1607) provides that when current maintenance needs of the beneficiary are being reasonably met, part of the beneficiary's payments may be used for the support of the legally dependent spouse, legally dependent child, or a legally dependent parent of the beneficiary.

Whether A is legally obligated to support L depends on applicable State law, in this case, the law of the State of Nevada. The only ascertainable provision of the Nevada law pertaining to mandatory support of an adult child is found in section 422.310 of the Nevada Revised Statutes. This statute sets forth in subsection (1) that "[t]he . . . mother . . . of an applicant for or recipient of public assistance, if of sufficient financial ability so to do, . . . [is] liable for the support of such applicant or recipient." However, in this case, even though L has no income of his own and claims to be dependent on his mother's retirement income for support, there is no indication that he has ever applied for public assistance. Therefore, this section cannot be applied in the instant case.

The general common law rule is that there is no liability on the parents for the support of an adult child. The common law places on parents the duty of supporting only their minor children except that in the case of children so weak mentally as to be unable to support themselves, the duty of the parent does not cease on the majority of the child. 67 C.J.S. Parent and Child, § 17. The State of Nevada has adopted the common law insofar as it is not repugnant to (or in conflict with) the Constitution and laws of the United States, or the constitution and laws of Nevada. Section 1.030 of the Nevada Revised Status. Since section 422,310, supra, is the only statute in Nevada changing the general common law rule with respect to the legal obligation of a parent to support his child, Nevada thus does no oblige a parent to support an adult child except where the child is an applicant for, or recipient of, public assistance or is unable to support himself because of a mental infirmity.

The question to be resolved, therefore, is whether by reason of this common law rule in effect in Nevada, an adult child may be considered a "legally dependent child" within the meaning of that phrase in section 404.1607 of the Social Security Administration regulations cited above.

Under the common-law rule discussed above, L's mother is not legally liable for L's support. Accordingly, it is held, L is not a "legally dependent child" for whose support A's benefits may be used under the regulation cited above.

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