If the agency does not consider an applicant to be a “child” of the insured under
State intestacy laws, it may nonetheless deem the applicant to be the insured’s child
under section 216(h)(3) of the Act. See Social Security Act § 216(h)(3)(B), 42 U.S.C. § 416(h)(3)(B); 20 C.F.R. §§ 404.350(a)(1),
404.355(a)(3)-(4); POMS GN 00306.100.B.
Section 216(h)(3)(B)(i) of the Act provides that the agency will deem the applicant
to be the insured’s child if the insured acknowledged in writing that the applicant
is her child, and the insured made such acknowledgement before her period of disability
began. See Social Security Act § 216(h)(3)(B)(i)(I), 42 U.S.C. § 416(h)(3)(B)(i)(I); 20 C.F.R.
§ 404.355(a)(3); POMS GN
00306.100.B.1. An applicant’s birth certificate satisfies the written acknowledgement requirement
of section 216(h)(3)(B)(i) if it bears the insured’s signature as informant and identifies
the insured as the applicant’s parent. POMS GN 00306.120.A.
Here, E~’s birth certificate bears the NH’s signature as “parent or other informant”
and identifies the NH as E~’s mother. Further, the NH signed the birth certificate
on April XX, 2009, prior to the date the NH’s period of disability began on August
XX, 2012.[4] E~ may therefore be deemed the NH’s child under section 216(h)(3)(B)(i) of the Act.
See Social Security Act § 216(h)(3)(B)(i)(I), 42 U.S.C. § 416(h)(3)(B)(i)(I).[5]
Although someone other than the NH adopted E~, E~ may still establish entitlement
on the NH’s record under section 216(h)(3) of the Act if she can demonstrate that
the NH was living with her or contributing to her support at one of the three points
identified in POMS GN 00306.007. See POMS GN 00306.165.C (where the applicant is adopted by someone other than the insured, the applicant
can still establish entitlement if the agency deems her to be the insured’s child
under section 216(h)(3) of the Act and she meets the dependency criteria of POMS GN 00306.165.A).
E~ meets this dependency requirement because she was living with the NH on August
XX, 2012 when the NH’s period of disability began, a point at which the agency will
find dependency. POMS GN 00306.007.A. Because the agency deems E~ to be the NH’s child under section 216(h)(3) of the
Act and she meets the criteria for dependency, E~ is entitled to child’s insurance
benefits on the NH’s account.
CONCLUSION
To receive child’s insurance benefits on the NH’s record, E~ must establish that she
is the NH’s “child” notwithstanding her adoption by someone other than the NH. Because
E~ cannot inherit from the NH under California’s intestacy laws, she is not the NH’s
“child” under section 216(h)(2) of the Act. Social Security Act § 216(h)(2)(A), 42
U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.350(1), 404.355(a)(1); POMS GN 00306.001.C.1.a.
However, the agency will deem E~ to be the NH’s child under section 216(h)(3) of the
Act because, in signing E~’s birth certificate as her mother, the NH acknowledged
in writing that E~ is her child before the NH’s period of disability began. See Social Security Act § 216(h)(3)(B)(i)(I), 42 U.S.C. § 416(h)(3)(B)(i)(I); 20 C.F.R.
§ 404.355(a)(3); POMS GN
00306.100.B.1; POMS GN 00306.120.A. Additionally, E~ meets the dependency requirement because she was living with
the NH on August XX, 2012 when the NH’s period of disability began. Accordingly, E~
is entitled to child’s insurance benefits on the NH’s account. See POMS GN 00306.165.C.
Margaret Branick-Abilla
Assistant Regional Counsel, Region IX