Whether the adoption of Darlene F. B~ by Harold and Johon B~ was a valid adoption
in the State of Missouri?
The Social Security regulations at 20 C.F.R. § 404.356 (2007) and section GN 00306.135 of the Program Operations Manual Systems (POMS) provides that, to be legal, an adoption
must be valid under the law of the State or foreign country where it took place. In
this case, the adult adoption of Darlene F. B~ took place in Missouri. According to
Missouri case law, persons may, by complying with the statutory adoption laws of Missouri,
adopt both adults and minors as their heirs. See Gamache v. Doering et al., 189 S.W. 2d 999, 1001 (Mo. 1945); State ex rel. Burek v.
Calhoun, 52 S.W. 2d 742, 743 (Mo. 1932). Missouri statutes further provide that, if the court
determines that a petition for adoption should be finalized, a decree shall be issued
setting forth the facts and ordering that from the date of the decree, the adoptee
shall be for all legal intents and purposes the child of the petitioner. See Mo. Ann. Stat. § 453.080 (3). In this case, such decree was issued on September 12,
1986. Because adults can be adopted in Missouri, and because a final decree of adoption
was filed on September 12, 1986, the adoption of Darlene F. B~ by Harold and Johon
B~ was valid and effective on the date of the decree.
Whether Darlene B~ can be entitled to Social Security benefits on the record of Harold
To be entitled to child's benefits on the earnings record of an insured person who
is entitled old-age or disability benefits, or who has died, the individual must meet
the following requirements:
be the insured person's natural child, legally adopted child, stepchild, grandchild,
stepgrandchild, or equitably adopted child;
be dependent on the insured, as defined in the regulations;
either be under age 18; be 18 years old or older and have a disability that began
before she became 22 years old; or be 18 years or older and qualify for benefits as
a full-time student. See 20 C.F.R. § 404.350. It should be noted that an individual must satisfy all five
criteria to receive benefits.
Each of the above five requirements will be addressed separately. First, as discussed
above, Darlene is the legally adopted child of Harold and Johon B~ under the laws
of the State of Missouri.
Second, because Darlene was legally adopted by Harold after he became entitled to
benefits in March 1980, and she was not Harold's natural child or stepchild, she can
be considered dependent on Harold during his lifetime only if -
she had not attained age 18 when adoption proceedings were started, and the adoption
was issued by a court of competent jurisdiction within the United States; or
she attained age 18 before adoption proceedings were started; the adoption was issued
by a court of competent jurisdiction within the United States; and she was living
with or receiving at least one-half support from Harold for the year immediately preceding
the month in which the adoption was issued, September 1986.
See 20 C.F.R. § 404.362(b).
Based on the facts presented, dependency in this case should be analyzed under option
number two. Given that the adoption of Darlene was not finalized until 1986, when
she was over the age of 18 (24 years old), this opinion assumes that Darlene attained
18 before the adoption proceedings were started (the adoption decree does not indicate
the date on which the proceedings were started). The Circuit Court of Cedar County,
Missouri, is a court of competent jurisdiction within the United States.
Next, it has to be determined whether Darlene was living with or receiving at least
one-half support from Harold B~ during the year immediately preceding September 1986,
when the court issued the decree of adoption. The regulations indicate that an individual
is living with the insured if she ordinarily lives in the same home with the insured
and the insured is exercising, or has the right to exercise, parental control and
authority over the individual's activities. See 20 C.F.R. § 403.366(c). Consequently, further development is needed as to whether
Harold exercised, or had the right to exercise, parental control and authority over
Darlene's activities. Assuming Harold had such authority over Darlene, the dependency
requirement would be met.
As noted above, Darlene can also establish the dependency requirement by showing that
she was receiving at least one-half support from Harold for the year immediately preceding
the month the adoption decree was issued. According to the regulations, the insured
person provides one-half of support if he makes regular contributions for the person's
ordinary living costs; the amount of these contributions equals or exceeds one-half
of the person's ordinary living costs; and any income (from sources other than the
insured person) the person has available for support purposes is one-half or less
of the person's ordinary living costs. See 20 C.F.R. § 403.366 (b). The facts presented do not indicate how much Harold contributed
to Darlene's living costs in the year immediately preceding adoption. Thus, further
development is needed on this issue also.
With respect to requirement three of 20 C.F.R. § 404.350, Darlene applied for child's
benefits on April 10, 2008. With respect to requirement four, given that Darlene currently
receives child benefits on the record of her deceased natural father, as noted above,
we assume that she is unmarried because that is a prerequisite to her receipt of benefits
on the record of her natural father, just as it is a requirement for her to receive
benefits on the record of her adopted father. See 20 C.F.R. § 404.350. Darlene meets the fifth requirement because she is older than
18, and the record suggests that she was disabled from birth.
On the basis of the facts presented, Darlene appears to meet four of the five requirements
of 20 C.F.R. § 404.350. Further development is necessary, however, to determine whether
Darlene lived with or received at least one-half of her support from Harold B~ during
the year immediately preceding her adoption. If Darlene meets the dependency requirement,
the facts presented indicate that she would meet all five of the above criteria, and
be entitled to benefits on Harold's record. If further development demonstrates that
Darlene cannot meet the dependency requirement, then she would not be entitled to
benefits on Harold's record, even though she satisfied the other four requirements.
If Darlene is found to be entitled to benefits on Harold's record, it must also be
determined which record has the highest primary insurance amount, that of her natural
father or Harold. According to the regulations, if an individual is entitled to child's
benefits on more than one person's earnings record, she will ordinarily receive only
the benefit payable on the record with the highest primary insurance amount. See 20 C.F.R. § 404.353.
We hope this memorandum answers your questions.
Kristi A. S~
Acting Chief Counsel, Region VII
Teresa J. S~
Assistant Regional Counsel