TN 37 (01-12)

GN 00306.230 Stepchild Relationship Requirements

Citations:

SSR 60-9

CAUTION: For applicability of acquiescence ruling, consult Definition of Stepchild - Hutcheson v. Califano (Ninth Circuit) GN 00306.290.

A. Determining stepchild relationship

1. A stepchild of the number holder (NH) is a child:

  • Whose relationship was created by the NH's marriage to the child's parent or adoptive (either legally or equitably) parent after the child's birth; the marriage may be either ceremonial or common-law (in a State that recognizes such marriages). For more information see Determining Status as Child in GN 00306.001; or

  • Who was conceived before their parent’s marriage to the NH (who is not the child's biological parent), and born after that marriage; or

  • Who was adopted before their adoptive parent’s marriage to NH.

A child conceived and born to one of the parties after the marriage, or adopted by one the parties after the marriage, is not the stepchild of the other party. NOTE: You must determine if the child is presumed to be the child of the party under state intestacy law or Section 216(h)(3).

The inheritance rights test does not apply in determining the child's status with respect to a stepparent. However, the child must be able to inherit from a parent at the time the parent married the stepparent.

NOTE: If the alleged stepchild relationship is based on a same-sex marriage or non-marital legal relationship, see GN 00210.505.

2. Duration of stepchild relationship

a. Number holder (NH) marital relationship duration

The marriage of the NH and the child's parent or adoptive parent must have taken place at least:

  • One year before the child's application is filed in a life claim, or

  • Nine months before the NH's death in a death claim.

EXCEPTION: See conditions, which meet the 9-month requirement for Marital Relationship Duration in GN 00305.100.

The duration requirements also apply where a child

  • was conceived before the marriage of the parent to the NH (who is not the child's biological parent), and

  • born after that marriage.

The month in which the first anniversary date occurs is the first month the step­child may be paid a benefit on the earnings record of a living NH. For example, if the NH and the stepparent married in May 2010, then May 2011 would be the first month the stepchild may be paid on the E/R of a living NH.

For more information, see Child’s Benefits-First Month of Entitlement (MOET) in Life Cases RS 00203.010B.7. for application of the “throughout the entire month” provision to a stepchild.

b. Child's application filed before duration requirement is met

In a life case, the one-year duration of relationship requirement may be met based on an application filed before the first anniversary of the NH's marriage to the child's parent or adoptive parent, as long as the anniversary occurs prior to adjudication. Otherwise, advise the applicant to file at the appropriate time or take the application if he or she insists (and deny appropriately).

3. Effect of death, divorce, or annulment

a. Death

Death of a spouse does not end the parent-stepchild relationship.

b. Divorce

A child cannot be entitled to benefits based upon the earnings record of a former step­parent divorced from the child's parent (unless entitlement can be established within the retroactive life of the application at a point before the divorce).

A divorce ending the stepparent and the stepchild’s parent or adoptive parent’s marriage (including invalid ceremonial marriage) to the stepparent will terminate the child's benefits for a stepchild if the divorce becomes final July 1996 or later. The stepchild's entitlement will terminate the month after the month in which the divorce becomes final, i.e., the month of divorce will be the last month of entitlement. This provision was contained in section 104 of P.L. 104-121. Review instructions for post-entitlement processing reports of divorce in per Processing Reports of Divorce in GN 02602.400.

If the marriage between the stepchild's parent and the NH ended in a divorce finalized before July 1996, the divorce will not terminate the stepchild's benefits

CAUTION: A stepchild legally adopted by the NH may qualify for benefits as the NH’s adopted child.

If a stepchild's benefits are terminated due to the parent's divorce and the parents later remarry each other, the stepchild cannot become reentitled unless the requirements are met in Child’s Benefits-Reentitlemen