You asked whether the number holder’s attempt, before she died, to adopt the claimant
established the claimant as the number holder’s legally or equitably adopted child
for the purposes of determining eligibility on the number holder’s record for (1)
child’s insurance benefits and the lump sum death payment for the claimant and (2)
the father’s benefits for the number holder’s former husband.
The number holder did not finish the adoption proceedings before she died and, therefore,
she did not legally adopt the claimant under Tennessee law. Tennessee does not recognize
equitable adoption. Thus, the claimant is not the number holder’s legally or equitably
adopted child for our purposes.
Based on the information provided, we understand the facts to be as follows. Dorothy
, the number holder (NH), and Jess (NH’s former husband), were married on September
22, 2005 (together referred to as the grandparents). The couple’s grandson, Tyler
(Claimant) was born in October and the juvenile court granted custody to the grandparents
on December 13, 2005. The couple divorced on March 30, 2010. Claimant has resided
with his grandparents since the court granted custody. On December 21, 2010, the grandparents
visited with a lawyer to discuss adopting Claimant. On about December 28, 2010, NH
became ill and was hospitalized. The adoption attorney dictated the adoption petition
on January 3, 2011. On January 13, 2011, NH’s former husband paid a retainer to the
attorney and gave the attorney the fees to file the adoption petition in court. NH's
death certificate indicates she died on January 15, 2011, while a resident of Tennessee.
NH’s former husband and his son (Claimant’s father) executed the adoption petition
on February 10, 2011, and filed it with the court on February 14, 2011. The filed
adoption petition included only NH’s former husband as petitioner and noted NH had
died. The Chancery Court for Knox County, Tennessee, entered the final order of adoption
on September 26, 2011.
On September 27, 2011, NH’s former husband filed an application on Claimant’s behalf
for surviving child’s insurance benefits and the lump sum death payment on NH’s record.
NH’s former husband also applied on his own behalf for father’s benefits on NH’s earnings
To qualify for child’s insurance benefits on the earnings record of an insured individual
who has died, a claimant must be the insured individual’s “child.” Claimant also applied
for the lump sum death payments on NH’s record under Social Security Act § 202(i)(2)
and his eligibility for benefits under this section is dependent on his status as
a child of NH. NH’s former husband’s eligibility for the father’s benefit is also
dependent on Claimant’s status as NH’s child. Act § 202(g)(1)(E). Because we determine
that Claimant is not NH’s child, the other requirements for these types of benefits
are not relevant.
See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2011). All other C.F.R.
cites are to the 2011 version unless otherwise noted.
“Child” includes a legally adopted or equitably adopted child of the insured individual.
See Act § 216(e); 20 C.F.R. § 404.354. The Social Security Administration (SSA) applies
the adoption laws of the State where the purported adoption took place to determine
if the claimant is the insured’s legally adopted child. 20 C.F.R. § 404.356. A claimant
may be the insured individual’s equitably adopted child if the insured had agreed
to adopt the child, but the adoption did not occur. See 20 C.F.R. § 404.359. The agreement to adopt must be one that would be recognized under
State law so that the claimant would be able to inherit a child’s share of the insured
individual’s personal property if the insured died without a will. See id. If claimant applies for benefits after the insured’s death, SSA follows the law of
the State where the insured had his or her permanent home when he or she died. See id. In this case, the purported adoption took place in Tennessee and NH’s death certificate
indicates she was a resident of Tennessee when she died. Therefore, we look to Tennessee
law to determine whether Claimant was NH’s legally or equitably adopted child.
Based on the evidence presented, NH did not legally adopt Claimant under Tennessee
law. Under Tennessee law, “‘Adoption’ means the social and legal process of establishing
by court order . . . the legal relationship of parent and child . . . .” Tenn. Code
Ann. § 36-1-102(4) (West 2011); see also Tenn. Code Ann. § 36-1-102(3)(A) (defining “adopted person” as “Any person who is
or has been adopted under this part or under the laws of any state, territory, or
foreign country”); Tenn. Code Ann. § 36-1-102(7) (defining “adoptive parent” as “the
person(s) who have been made the legal parents of a child by the entry of an order
of adoption under this part or under the provisions of the laws of any state, territory
or foreign country”). Tennessee allows anyone over the age of eighteen years old to
petition the chancery or circuit court to adopt a person. Tenn. Code Ann. § 36-1-115(a)
(West 2011). Anyone wishing to adopt a child must submit a petition to the court that
comports with the requirements in Tenn. Code Ann. § 36-1-116(b) (West 2011). In addition,
the petitioners must have physical custody or demonstrate they have the right to receive
custody of the child at the time the petition is filed; if the petitioner has a living
spouse, such a spouse must join the petition; and the petitioner must have lived in
Tennessee for six consecutive months immediately preceding the filing of the adoption
petition, unless the petitioner is a relative of the adoptive child. Tenn. Code Ann.
§ 36-1-115(b), (c), (d). The adoption is not final and complete until the chancery
or circuit court enters a final order of adoption. Tenn. Code Ann. §§ 36-1-126; 36-1-121(a)
Under Tennessee law, the adoption of a child is grounded in statute. A legal adoption
requires strict compliance with the statute. See State ex rel Shaver v. Shaver, No. 01A01-9610-cv-474, 1997 WL 401827, at *4 (Tenn. Ct. App. July 18, 1997), Johnson v. Wilbourn, 781 S.W.2d 857, 862 (Tenn. Ct. App. 1989); see also In re Adoption of M~, 412 S.W.2d 896, 899 (Tenn. 1967) (adoption is entirely statutory in nature and there
must be strict compliance with all statutory requirements), In re Petition to Adopt C~, 296 S.W.2d 875, 879 (Tenn. 1956) (“[T]here is no statute in this State which authorizes
a party or parties to adopt a child by a mere private declaration or contract, and
in the absence of such a statute, it cannot be done, because to allow it be would
be contrary to public policy of the state”). Tennessee also does not permit the survival
of an adoption proceeding after the death of the prospective parent or authorize a
posthumous order approving adoption. See J~, 781 S.W.2d at 862.
Similarly, SSA’s policy related to adoption by a number holder’s surviving spouse
after the number holder's death, see 20 C.F.R. § 404.356, Programs Operations Manual System (POMS) GN 00306.145, does not apply here because NH and NH’s former husband divorced prior to NH’s death.
In this case, although NH expressed an interest in adopting Claimant, NH did not comply
with any of the requirements of Tennessee's adoption statutes. NH died before she
actually filed a petition to adopt Claimant. NH’s former husband did not file the
petition to adopt Claimant until after NH’s death, and he was the sole petitioner.
The final order of adoption does not mention NH, but declared Claimant to be the legal
child of NH’s former husband. Because NH did not file a petition to adopt Claimant
or obtain a court order declaring Claimant her child, Claimant would not qualify as
NH’s legally adopted child under Tennessee law.
Claimant also cannot qualify as NH’s equitably adopted child because Tennessee does
not recognize contracts for adoption, nor does Tennessee recognize equitable adoption.
See Bray v. Gardner, 268 F. Supp. 328, 332 (E.D. Tenn. 1967) (adoption relationship cannot be created
by private contract or estoppel); see also Bank of Maryville v. Topping, 393 S.W.2d 280, 284 (Tenn. 1965) (where purported adoptive parents raised the child
from birth and held the child out as their own child, without complying with the statutory
adoption procedures, the courts held that there was no adoption and the child could
not inherit from the purported adoptive parents). In J~, the prospective adoptive father filed a petition to adopt the child and then died
three weeks later before taking any further action on the adoption petition. J~, 781 S.W.2d at 858-59. The prospective father’s mother filed a claim as the sole
heir and the prospective adoptive child objected. The Court of Appeals reversed the
Chancery Court and found that because there was not strict compliance with the statute,
there was no adoption and the prospective child could not inherit from the prospective
father. Id. at 861. The court reasoned that adoption proceedings are wholly statutory and do
not depend upon equitable principles. Id.
Tennessee will enforce contracts, separate from a contract for adoption. See Couch v. Couch, 248 S.W.2d 327, 335 (Tenn. Ct. App. 1951). When there is a contract between the
adult and child stating that the child should inherit from the adult upon the adult’s
death, Tennessee courts will enforce specific performance of that contract. See Starnes v. Hatcher, 117 S.W. 219 (Tenn. 1908). The court in Starnes distinguished the enforcement of
a contract to inherit property from a contract for an adoption. See id. at 221. The court specifically noted it would not enforce a private contract for
adoption. See id. at 223. Such a contract for inheritance of property is not present in this case.
POMS GN 00306.225(B) states that Tennessee recognizes equitable adoption, including an oral contract
for adoption. However, we found no Tennessee statute or case law to support the POMS
conclusion. As discussed above, adoption in Tennessee is strictly statutory, and Tennessee
case law does not recognize equitable adoption. Therefore, we recommend that the Agency
change the POMS to list Tennessee as a State that does not recognize equitable adoption.
See POMS GN 00306.225(A)(1) (listing States that do not recognize adoption).
We believe the evidence indicates Claimant is not NH’s legally adopted or equitably
adopted child under Tennessee law. Therefore, Claimant is not NH’s adopted child for
purposes of child's insurance benefits, the lump sum death payment, or father’s benefits
on NH’s record.
Mary Ann Sloan
Regional Chief Counsel
Kristin M. Timm
Assistant Regional Counsel