TN 14 (01-12)
PR 01310.047 Tennessee
A. PR 12-032 Effect of Number Holder’s Attempt to Adopt Claimant on the Eligibility of Claimant and Number Holder’s Former Husband to Benefits on the Number Holder’s Record – Tennessee
DATE: December 20, 2011
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. The NH did not file a petition to adopt Claimant or obtain a court order declaring Claimant her child, therefore 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.
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 record.
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) (West 2011).
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
B. PR 06-071 (Tennessee) Validity of adult adoption in Tennessee Claimant - Christina Number Holder - Vernon
DATE: February 17, 2006
Under Tennessee law, the adoption of an adult is valid as long as the adult has consented to the action and State law residency requirements are met.
In a case governed by Tennessee law, you asked whether the adoption of a person over age twenty-one by her stepfather was valid.
As discussed in greater detail below, an adult may be adopted with consent under Tennessee law. Because the adoption decree indicates that Claimant consented to the adoption, the adoption appears to be valid.
The facts as presented are that Christina (Claimant) filed an application for disabled adult child's (DAC) benefits as the adopted child of Vernon , the number holder (NH), on October 12, 2005, alleging disability due to blindness/poor vision. Claimant has been receiving Supplemental Security Income (SSI) benefits since September 1, 1993. Claimant was born in August and was eighteen years old when she began receiving SSI benefits. Although Claimant previously filed an application for DAC benefits as NH's stepchild, the Agency denied this application because NH was not providing more than one half of her support. Subsequently, NH formally adopted Claimant by decree dated September 20, 2004. Claimant was twenty-nine years old at the time of the adoption; and she, her biological mother, and NH were parties to the adoption. Claimant and the NH are both residents of Tennessee but reside at different addresses. Pursuant to POMS GN 00306.135, you requested an opinion on the validity of the adoption.
Claimant filed a claim for DAC benefits as the adult child of NH. Under section 202(d) of the Social Security Act (Act), a child over age eighteen may collect DAC benefits on the work record of a living parent if the child is (1) unmarried at the time of the application; (2) under a disability which began before he or she attained the age of twenty-two; and (3) dependent on the parent at the time of the application. See §§ 202(d)(1)(B), (C)(i) of the Act, 42 U.S.C. §§ 402(d)(1)(B), (C)(i). The Act defines "child" to include a legally adopted child. See § 216(e) of the Act, 42 U.S.C. § 416(e). The determination of whether a child is the legally adopted child of a wage earner is based on the adoption laws of the State where the adoption took place. See 20 C.F.R. § 404.356; see also POMS GN 00306.135. Thus, Claimant may qualify for DAC benefits on NH's record if her adoption is valid under Tennessee law and she meets the other criteria set forth in section 202(d) of the Act.
Tennessee allows for the adoption of an adult. See Tenn. Code Ann. § 36-1-107(c). Any person over eighteen years of age may petition the chancery or circuit court to adopt another person. See Tenn. Code Ann. § 36-1-115(a). The petitioner must have lived or maintained a regular place of abode in the State for six consecutive months immediately preceding the filing of the adoption petition. See Tenn. Code Ann. § 36-1-115(d). When petitioner seeks to adopt a person who is eighteen years of age or older, "only the sworn, written consent of the person sought to be adopted shall be required and no order of reference or any home studies need be issued." Tenn. Code Ann. § 36-1-117(j)(1). If the adult adoptee was previously adjudicated incompetent, "the written consent of the adult person's guardian or conservator of the person shall be required." Tenn. Code Ann. § 36-1-117(j)(2)(a).
An adult may be adopted with consent in Tennessee. See Tenn. Code Ann. §§ 36-1-107(c), 36-1-117(j)(1). On September 3, 2004, Claimant, her biological mother, and NH petitioned the Chancery Court of Tennessee for the Thirtieth Judicial District at Memphis for the adoption of Claimant by NH. In granting the petition, the court found that all necessary parties were properly before it and entered a Final Decree of Adoption on September 20, 1994. The court noted that NH and Claimant's biological mother had been married since 1981 and that NH had provided Claimant's care and custody since that time. The court also noted that all the parties were adult resident citizens of Memphis, Tennessee, and had been such for more than six months preceding the filing of the petition. Given that Claimant consented to the adoption, the adoption appears to be valid under Tennessee law.
Although the Commissioner is not bound by the decision of a State court in a proceeding to which she was not a party, the court's adoption decree would seem to be due some deference under Social Security Ruling (SSR) 83-37c. Through this SSR, SSA adopted as national policy the rationale from Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). In G~, the Sixth Circuit held the Commissioner is not free to ignore a state court determination on a domestic relations issue when the state court had jurisdiction over the issue, the issue was genuinely contested by parties with opposing interests, and the decision was consistent with the law set forth by the highest court in the state. Although we are unaware of an instance in which the Tennessee Supreme Court has addressed the validity of an adult adoption, SSA would not be free to ignore the court's adoption decree given that both NH and Claimant were parties in the state court civil action and that the order reveals no inconsistency with Tennessee law.
As submitted, the facts suggest that Claimant's adoption by NH was valid under Tennessee law. In this regard, NH was eligible to file the adoption petition and met the residency requirement at the time the petition was filed. Additionally, the adoption decree shows that Claimant consented to the adoption.
Mary Ann Sloan
Regional Chief Counsel
Joseph P. Palermo, III
Assistant Regional Counsel