You have asked for our advice as to whether J, the adopted child of the wage earner
and his spouse, can be considered a legally adopted child who is also a grandchild,
and, therefore, subject to the dependency requirements of Section 202(d)(8)(D)(ii)(III)
of the Social Security Act. The facts of the case are as follows:
An application for child's insurance benefits was filed on the account of a wage earner
receiving old-age insurance benefits. The wage earner has been entitled to benefits
since January 1980.
J, a minor child, was born to C, an unmarried woman, on October XX, 1982. C was adopted
by the wage earner and his spouse on October XX, 1982, pursuant to the Alabama statute
governing the adoption of an adult. A petition was filed by the wage earner and his
spouse on October XX, 1982, to adopt J. (This petition to adopt was filed one day
after the adoption of C became final.) The adoption of J by the wage earner and his
spouse became final on October XX, 1983.
The adoption of C was apparently done pursuant to Section 43-4-1 of the Alabama Code
which provides a mechanism for the adoption of an adult through the filing of a petition
for an order of adoption in the probate court. J became a grandchild of the wage earner
and his spouse through the adoption of J in that he was vested with rights of inheritance
pursuant to Section 43-4-3 of the Alabama Code which provides in pertinent part that:
For the purposes of inheritance of property under the laws of descent and distribution,
an adopted person shall bear the same relation to his adopter and the natural and
adopted children of the adopter as if he were the natural child of such adopting person.
It is intended hereby to give an adopted person all right of inheritance from the
person who adopts him and through him from his natural and adopted children, and to
give to the adopting person and his natural and adopted kindred all rights of inheritance
from the adopted person and his descendants, including adopted children, the same
as if such adopted person were born to the adopting person as a legitimate child ....
J's eligibility for child's benefits as an adopted grandchild of the wage earner is
governed by 42 U.S.C. §202(d)(8)(D)(ii)(III) which provides as pertinent herein that:
In the case of (A)An individual entitled to old-age insurance benefits ...,
a child of such individual adopted after such individual became entitled to such old-age
or disability insurance benefits shall be deemed not to meet the requirements of clause
(i) or (iii) of paragraph (1)
(C)unless such child —
(D) (i) was legally adopted by such individual in an adoption decreed by a court of
competent jurisdiction within the United States,
(ii) was living with such individual in the United States and receiving at least one-half
of his support from such individual ....
(I)if he is an individual referred to in subparagraph (A) for the year immediately
before the month in which such individual became entitled to old-age benefits ....
(III) if he is an individual referred to in either subparagraph (A) or subparagraph
(B) and the child is the grandchild of such individual or his or her spouse, for the
year immediately before the month in which such child files his or her application
for child's insurance benefits, and
(iii) had not attained the age of 18 before he began living with such individual.
You were particularly concerned about the applicability of the above provisions and
20 C.F.R. §404.362(b)(2) which provides that:
(2) Grandchild of the insured or the insured's spouse. If you are legally adopted
by the insured after he or she became entitled to benefits and you are the insured's
grandchild or the grandchild of the insured's spouse, you are considered dependent
upon the insured during his or her lifetime only if —
Your adoption took place in the United States;
You began living with the insured before you became 18 years old; and
(iii)You were living with the insured in the United States and receiving at least
one-half of your support from him or her for either the one-year period before the
month you applied or for one of the periods described in paragraph (b)(1)(iii) of
this section. If you were born within this one-year period, the insured must have
lived with you and provided one-half of your support for "substantially all" of the
period that begins on the date of your birth. The term "substantially all" is defined
in paragraph (b)(1)(iii) of this section.
Subparagraph (ii)(III) of the statute and paragraph (b)(2) of the regulations require
one year of support for the period before the month of the application for child's
benefits. However, a legally adopted individual who is not the natural child, stepchild,
grandchild or stepgrandchild of the wage earner must have received the year of support
for the year before the wage earner became entitled to benefits which is a more stringent
support test. Since the wage earner began receiving benefits in 1980, J would not
have been entitled to benefits under Section 202(d)(8)(D)(ii)(I) if the wage earner
had adopted him first because he was born in 1982. See, Section 202(d)(8)(D)(ii)(I) and 42 C.F.R. §404.362(b)(1). Consequently, by adopting
C and then adopting J, the wage earner was able to establish eligibility for J under
subparagraph (ii)(III) and §404.362(b)(2) by adopting J after J had become a grandchild.
We could find no prohibition under Alabama statutes or any Social Security Administration
policy which would affect the validity of these multiple adoptions. This entire matter
has also been reviewed by our General Counsel's Central Office in Baltimore and they
agree with our conclusions. We are, therefore, of the opinion that J can be considered
a child of the wage earner who is also a grandchild, and, therefore, subject to the
dependency requirements of Section 202(d)(8)(D)(ii)(III) of the Social Security Act
and 20 C.F.R.§404.362(b)(2).