You asked whether claimants S~ (formerly S~) (S~), and C~ (formerly C~) (C~ W~),
who were adopted by their birth mother, M~ (M~), after she and the NH had divorced,
qualify as the NH’s children for purposes of entitlement to auxiliary benefits on
the NH’s record.
We conclude that S~ and C~ are entitled to inherit personal property from the NH’s
estate under New York intestacy laws. Further, the NH was contributing to the children’s
support at the time the children filed their applications. Thus, S~ and C~ qualify
as the NH’s children for purposes of entitlement to auxiliary benefits on the NH’s
Your office provided the following documents:
M~’s statement on the remarks screen of the applications for S~ and C~.
Judgment of Divorce between M~ and Jeffrey, issued on January 8, 2004.
Order of Adoption by M~ of S~, dated May 24, 2010.
Amended Birth Certificate for S~, dated June 3, 2010.
Order of Adoption by M~ of C~ , dated May 24, 2010.
Amended Birth Certificate for C~, dated June 16, 2010.
New York State Order of Income Withholding for Support of S~ and C~, dated December
2, 2011 and addressed to SSA.
New York State Order of Income Withholding for Support of S~ and C~, dated January
13, 2012 and addressed to SSA.
NH’s application for disability insurance benefits, dated December 13, 2011.
M~’s statement that she and the NH were married on August 2, 1997 in Portville, NY.
On May, M~ gave birth to S~ in Olean, NY. The NH and M~ married on August 2, 1997,
in Portville, New York. On August, M~ gave birth to C~ in Fort Campbell, TN. M~ did
not provide copies of the children’s original birth certificates. The couple divorced
on January 8, 2004, in Olean, New York. The Judgment of Divorce stated that S~ and
C~ are the infant issues of the marriage, and the Judgment ordered that the NH pay
On May 24, 2010, the Surrogate’s Court of the State of New York, County of Cattaraugus,
granted M~’s petitions for adoption of S~ and C~. The Orders of Adoption stated that
the NH, who is the birth father, had abandoned the children. The Orders of Adoption
changed S~ and C~’s last name to B~. M~ then obtained amended birth certificates for
the children. The father’s name is not listed on the amended certificates.
On November 11, 2011, the NH applied for Social Security Disability benefits alleging
an onset date of April 2, 2011. The NH was found eligible for benefits as of October
2011. In his application, he listed two children from his second marriage, but did
not list S~ and C~. The NH’s second wife informed SSA that the NH also had two other
children (S~ and C~) from his first marriage. She identified S~’s and C~’s mother
SSA contacted M~, and on May 29, 2012, she filed for auxiliary benefits for S~ and
C~ on the NH’s record. When she filed for those benefits, M~ told SSA that S~ and
C~ had not had any contact with their father, and that she had petitioned for their
adoption in May 2010 because S~ and C~ wanted to have their last name changed to B~.
She said she had pursued adoption on the advice of an attorney who told her it would
be a less expensive way to change the children’s last name. M~ told the agency that
she alone participated in the adoption and that the NH did not sign away his rights
as the children’s father.
When M~ filed for child’s benefits on S~’s and C~’s behalf, she told SSA that the
NH had not been paying child support as ordered in the Judgment of Divorce. However,
pursuant to New York State Notices of Income Withholding for support of S~ and C~
dated December 6, 2011 and January 13, 2012, SSA began garnishing the NH’s benefits
on January 17, 2012.  The notices reflect child support arrears of $36,807.14.
In order to receive children’s benefits under the Act, a child must be the dependent
“child” of the wage earner in accordance with the Act’s criteria. 42 U.S.C. § 402(d)(1).
The Act includes both a definition of “child,” and instructions on how the Commissioner
should determine whether an applicant is a “child.” Section 416(e) defines a “child”
to mean “(1) the child or legally adopted child of an individual . . . .” 42 U.S.C.
§ 416(e). Section 416(h)(2)(A) of the Act, captioned “Determination of Family Status,”
contains Congress’s instructions for the primary method utilized by the Commissioner
in determining parent-child relationships:
In determining whether an applicant is the child . . . of a fully or currently insured
individual for purposes of this title, the Commissioner of Social Security shall apply
such law as would be applied in determining the devolution of intestate personal property
. . . . by the courts of the State in which [such insured individual] was domiciled
at the time such applicant files an application. . . Applicants who according to such
law would have the same status relative to taking intestate personal property as a
child or parent shall be deemed such.
42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). A child who meets the standard
that Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate
and, therefore, dependent. See Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976); 20 C.F.R. § 404.361(a).
POMS contemplates that where a child is adopted by someone other than the NH, the
child is the NH’s child for benefit purposes if:
The adoption did not cut off the child’s inheritance rights in the NH’s estate under
applicable State law; and
The NH was living with or contributing to the child’s support at certain specified
times, including at the time the child’s application is filed.
POMS GN 00306.165A and GN 00306.007A.1.
If the NH is living, the agency applies the law of the state where the insured has
his permanent home when the application is filed. 20 C.F.R. § 404.355(b)(3). You have
advised us that the NH resides in New York State. Therefore, New York State law applies.
New York State Law
In New York, the right of intestate succession is a statutory creation and there is
no common-law right of inheritance. Irving Trust Co. v. Day, 314 U.S. 556, 562 (1946) (citations omitted); In Re W~’s Estate, 101 N.E. 793, 794 (N.Y. 1913). New York’s intestacy law specifies that the “issue”
of a decedent are eligible to inherit a decedent’s property. N.Y. Est. Powers & Trusts
Law § 4-1.1 (McKinney 2013). The law defines “issue” as “descendants in any degree
from a common ancestor,” which would include a decedent’s children. N.Y. Est. Powers
& Trusts § 1-2.10 Law (McKinney 2013). Prior to the adoption, the children are the
issue of the NH and would be able to inherit personal property from him under New
York’s intestacy laws. N.Y. Est. Powers & Trusts Law § 4-1.1 (McKinney 2013).  The question is whether the adoption of the children by M~, after she and the NH
had divorced, extinguished the children’s inheritance rights from the NH.
New York intestacy law provides that the right of an adopted child to take a distributive
share continue as provided in the domestic relations law. N.Y. Est. Powers & Trusts
Law § 4-1.1(d) (McKinney 2013). Under the domestic relations law, the general rule
is that an order of adoption has the effect of severing all legal ties previously
existing between the adoptive child and her birth parents. N.Y. Dom. Rel. Law § 117(1)(a)
(McKinney 2013). For purposes of intestate descent and distribution of realty and
personalty, the rights of the adopted child to inherit from and through her birth
parents also generally terminate upon the making of the order of adoption. N.Y. Dom.
Rel. Law § 117(1)(b) (McKinney 2013).
However, New York law provides an exception to this general rule. Specifically, if:
(1) the decedent is the adoptive child's birth grandparent or is a descendant of such
(2) an adoptive parent (i) is married to the child's birth parent, (ii) is the child's
birth grandparent, or (iii) is descended from such grandparent,
the rights of an adoptive child to inheritance and succession from and through either
birth parent shall not terminate upon the making of the order of adoption. N.Y. Dom.
Rel. Law § 117(1)(e) (McKinney 2013). A New York court has interpreted this provision
to mean that the statute preserves the right of a child to inherit from either birth
parent so long as her adoptive parent was a descendant of any of the child’s birth
grandparents. In re Estate of J~, 850 N.Y.S.2d 855 (N.Y. Surr. 2008).
Here, the NH is a descendant of the children’s birth grandparent and the children’s
adoptive parent, M~, is also a descendant of the children’s birth grandparent. Thus,
under New York law, the children’s rights to inheritance and succession from and through
either birth parent did not terminate upon the making of the order of the adoption.
N.Y. Dom. Rel. Law § 117(1)(e). Accordingly, S~ and C~ can inherit personal property
under intestacy from the NH and the adoption did not cut off the child’s inheritance
rights in the NH’s estate under applicable State law. POMS GN 00306.165A.
Additionally, the NH was living with or contributing to the child’s support at the
time the child’s application is filed. POMS GN 00306.165A and GN 00306.007A.1. Here, SSA began garnishing the NH’s benefits on January 17, 2012. M~ filed for auxiliary
benefits for S~ and C~ on the NH’s record on May 29, 2012. Thus, the NH was contributing
to the children’s support at the time the children’s applications were filed and the
dependency requirement is met. POMS GN 00306.165A and GN 00306.007A.1. Accordingly, S~ and C~ qualify as the NH’s children for purposes of entitlement to
auxiliary benefits on the NH’s account. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).
Analysis under SSR 83-37c
Additionally, under Social Security Ruling 83-37c (Gray v. R~son, 474 F.2d 1370 (6th Cir.1974)), we believe the agency is not bound by the May 25,
2010 Adoption Orders. Under G~, the Commissioner is not free to ignore an adjudication of a State trial court where
the following prerequisites are found: (1) an issue in a claim for Social Security
benefits previously has been determined by a State court of competent jurisdiction;
(2) this issue was genuinely contested before the State court by parties with opposing
interests; (3) the issue falls within the general category of domestic relations law;
and (4) the resolution by the State trial court is consistent with the law enunciated
by the highest court in the State. SSR 83-37c.
Although the Adoption Orders satisfy the first and third prongs of G~, they do not satisfy the second and fourth prongs. The orders address an issue in
a claim for Social Security benefits (the first prong) and the issue falls within
the general category of domestic relations law, as it deals with the validity of an
adoption, and its effect on inheritance rights (the third prong). However, the second
prong of G~ requires that the issue be genuinely contested before the State court by parties
with opposing interests. Here, the NH did not appear in court to contest the adoption
of S~ and C~. Under these facts, the second prong of the Gray v. R~son analysis has not been met.
With respect to the fourth prong, i.e. whether the resolution by the State trial court
is consistent with the law enunciated by the highest court in the State, our research
indicates that the issue presented here has not been considered by the New York Court
of Appeals. Nonetheless, New York law provides a limited universe of individuals who
may adopt another person. N.Y. Dom. Rel. Law § 110 (McKinney’s 2013). A New York appeals
court concluded that the statutory adoption framework does not contemplate the adoption
by an unmarried biological parent of a child born out of wedlock. Matter of Z~ D.K., 804 N.Y.S.2d 197 (N.Y. App. Div. 2005). Another New York court refused to permit
the adoption of a child by the biological brother of the child’s natural mother, even
though the child’s natural father had purported to consent to the adoption in exchange
for the mother’s agreement that his child support obligation would cease. Matter of G~, 841 N.Y.S. 2d 731 (N.Y. Sur. 2007). Thus, the Commissioner is not bound by the adoption
order since the fourth and final prong of the G~ analysis also is not met.
Despite the fact that the children’s birth mother adopted the children after she and
the NH had divorced, S~ and C~ are entitled to inherit personal property from the
NH’s estate under New York intestacy laws. Further, the children meet the child dependency
requirements. Thus, they qualify as the NH’s children for purposes of entitlement
to auxiliary benefits on the NH’s account.