A child legally adopted by the NH's surviving spouse is deemed to be the NH's legally adopted child (and is deemed dependent) as of the date of the NH's death if  the following conditions are met:

1. a. 

   The surviving spouse legally adopted the child within 2 years after the NH's death; or he/she legally adopted the child more than 2 years after the NH's death but the NH had instituted proceedings to adopt the child before his /her death; and

2. b. 

   The child was either living withor receiving one-half support from the NH at the time of the NH's death.

The relationship of the surviving spouse to the child is immaterial. It is also immaterial whether the surviving spouse remarries and the subsequent spouse joins in the adoption proceedings.

If the above conditions are met, benefits are not payable for any month before the month of the NH's death. You cannot make the determination of entitlement before a legal adoption is effective. However, once an adoption is effective, the child may receive payment for earlier months within the retroactive life of an application, subject to the effective date of the new provisions.

The legislation did not change the entitlement requirements in GN 00306.235 ff. that apply specifically to a grandchild adopted by the NH's surviving spouse. Consider the child's entitlement under GN 00306.235 ff. if the conditions in GN 00306.145C.1. are not met, and the child is the grandchild or stepgrandchild of the NH or his/her spouse.

Look for evidence of proceedings to adopt on adoption certificates, contracts, affidavits, etc. In some cases you may need to contact appropriate officials for verification.

See RS 01301.002 for development of living with, and RS 01301.010 for development of one-half support. “Living with” or “one-half support” may be found in utero situations (see GN 00306.006).

Develop the marital relationship of the NH and surviving spouse as discussed in

GN 00305.001 ff.

Apply current law to any case in which:

• •

  An application for child's benefits for a child adopted by the NH's surviving spouse is pending, and

• •

  The child was not living in the NH's household at the time of death and/or was receiving disqualifying contributions.

“Pending” means that SSA has not made a final determination at the initial or reconsideration level or a final decision at the ALJ hearing level. Benefits under the new law are not payable for any month prior to January 1991.

You may reopen a claim within one year of the initial determination (the disallowance) per GN 04001.100 - GN 04001.110 if:

1. a. 

   An application for benefits for a child adopted by the NH's surviving spouse was previously disallowed because the child was not living in the NH's household at the time of death and/or because the child was receiving disqualifying contributions, and

2. b. 

   The child would qualify for benefits under the new law.

Do not seek out cases previously disallowed strictly for reopening. However, if a case comes to your attention either on your own motion or at the request of the claimant, you may reopen. After one year, the claimant would have to file a new application, and benefits would be payable based only on that new application. Benefits under the new law are not payable for any month before January 1991.