You asked whether the minor claimants, B~ and T2~, can be entitled to benefits as
children of the number holder (NH), T~, under either section 216(h)(2) or 216(h)(3)
of the Social Security Act (Act). For the reasons discussed below, we conclude that
the claimants meet all of the requirements for entitlement to children’s insurance
benefits, including establishing their status as the NH’s “children” under section
216(h)(3) of the Act and their dependency upon the NH under section 202(d)(3) of the
The NH and K~ were married and had two children, the claimants, B~ (born in 1993)
and T~ (born in 1995). According to their birth certificates, the claimants were the
natural legitimate children of the NH and K~.
The NH and K~ were subsequently divorced, and K~ (now K~) married M~. M~ adopted B~
and T2~ on May XX, 2002, in Indiana.
On November XX, 2006, the NH filed an application for disability benefits. On his
application, he stated that B~ and T2~ were his children. The NH was domiciled in
Ohio at the time the application was filed.
In June 2007, the Court of Common Pleas in Hamilton County, Ohio, entered an order
enforcing a court order issued by the Circuit Court in Dearborn County, Indiana, for
collection of an arrearage in child support of $108.33 per month from the NH that
was due prior to the claimants’ adoptions.
With respect to his disability application, the NH was found to be disabled with an
onset date of January XX, 2007, and he was awarded disability benefits effective July
2007. He died on July XX, 2009.
Section 202(d) of the Act provides for the payment of child’s insurance benefits to
a child (as defined in section 216(e) of the Act) of a NH, if certain requirements
for entitlement are met. The applicant must show, among other things, that he is the
NH’s child based on a recognized relationship, and that he was dependent on the NH
at one of the relevant points in time. See Section 202(d)(1) of the Act; 20 C.F.R. § 404.350. 
1. Relationship Requirement
Under section 216(e) of the Act, the term “child” is defined as the child, the legally
adopted child, or under certain circumstances, the stepchild of the NH. As relevant
to this case, the Agency must further consider whether a claimant has the requisite
status as a child under the Act by determining whether he could inherit the NH’s intestate
personal property as the NH’s child under state law. See Section 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(a)(1). Alternatively, if the
claimant could not inherit from the NH under state law, he may nevertheless be able
to establish his status as a child by meeting the requirements of section 216(h)(3)
of the Act.
Section 216(h)(2)(A) of the Act provides, in relevant part:
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 is domiciled at the time
such applicant files application…. Applicants who according to such law would have
the same status relative to taking intestate personal property as a child…shall be
See also 20 C.F.R. § 404.355(a)(1). The issue is whether B~ and T2~ have the status required
by section 216(h)(2)(A), and are thus considered the NH’s “children” under section
Here, B~ and T2~ were adopted by their stepfather, M~, in Indiana in 2002. Under Indiana
law, the adoptions terminated the parent-child relationship between the NH and the
claimants. See Ind. Code §§ 31-19-15-1, 31-19-15-2. The NH filed his disability application in 2006;
he was domiciled in Ohio at the time. Under section 216(h)(2)(A), B~’s and T2~’s status
as the NH’s children for purposes of determining eligibility for child’s insurance
benefits must be determined by applying the laws which the courts of the state of
Ohio would apply in determining the devolution of the NH’s intestate personal property.
Pursuant to Ohio’s adoption statute, an adoptive status created in another jurisdiction
generally will be recognized in Ohio, but the right of the person so adopted to inherit
in Ohio is governed by Ohio law. See Ohio Rev. Code § 3107.18(A). Under Ohio law, a child who is adopted by another person
may not inherit from the natural parents, except when the natural parent is the spouse
of the adoptive parent. See Ohio Rev. Code § 3107.15(A)(1). The claimants do not meet the exception because the
NH was not M~’s spouse. Thus, the claimants may not inherit from the NH.
In the instant case, B~ and T2~, by reason of their adoptions in Indiana, could not
share as children in the NH’s intestate personal property in Ohio. Accordingly, they
are not the NH’s children for purposes of entitlement to child’s insurance benefits
under section 216(h)(2)(A).
B. Section 216(h)(3)
Under Section 216(h)(3)(B) of the Act, the biological son or daughter of a NH may
be deemed to be his or her child for benefit purposes regardless of the child’s status
under state law, if certain requirements are met. This provision states, in relevant
An applicant who is the son or daughter of a fully or currently insured individual,
but who is not (and is not deemed to be) the child of such insured individual under
[section 216(h)(2)], shall nevertheless be deemed to be the child of such insured
(B) in the case of an insured individual entitled to disability insurance benefits…—
(i) such insured individual—
(I) has acknowledged in writing that the applicant is his or her son or daughter….
See also POMS GN 00306.100.
Here, B~ and T2~ are the biological sons of the NH, as shown by their birth certificates.
Additionally, the NH stated in his disability application that the claimants were
his children. This constitutes an “acknowledgment in writing” within the meaning of
section 216(h)(3)(B)(i)(I). See POMS GN 00306.103(A)(1) (application for Social Security benefits filed by NH listing child as his
is a written acknowledgment). Therefore, the claimants are deemed to be the NH’s children
for purposes of entitlement to child’s insurance benefits under section 216(h)(3)(B).
II. Dependency Requirement
In order to be entitled to benefits, in addition to satisfying the relationship requirement
under the Act, the claimants must show that they were dependent upon the NH at one
of the following points in time: at the beginning of the NH’s period of disability,
when he became entitled to disability insurance benefits, or when the application
was filed. See Section 202(d)(1)(C) of the Act; POMS GN 00306.007(A)(1). For purposes of determining the time that the application was filed, the POMS
clarifies that dependency should be developed as of the first month of potential entitlement,
and if not met then, as of any later month within the life of the application. See POMS GN 00306.007(B).
Under section 202(d)(3) of the Act, B~ and T2~, who were adopted by their stepfather,
would be deemed dependent on the NH only if he had been living with them or contributing
to their support at one of the above points in time. See also 20 C.F.R. § 404.361(b); POMS GN 00306.100(A)(2).
POMS GN 00306.165 further addresses the issue of entitlement to benefits when a natural child of a
NH is adopted by another person during the NH’s lifetime. Where, as here, a child
has lost inheritance rights in the NH’s estate under applicable state law because
he was adopted by another person, he may still be entitled to benefits if he can meet
the requirements of section 216(h)(3) and also the dependency requirement, i.e., the
NH was living with him or contributing to his support at one of the above points in
time. See POMS GN 00306.165(A), (C).
Here, the claimants are considered the NH’s children for benefit purposes under section
216(h)(3)(B), and thus satisfy the relationship requirement. With respect to the dependency
requirement, there is no allegation or evidence that the NH lived with the claimants
at any of the relevant points in time. Thus, the issue is whether the NH contributed
to their support at one of the relevant points in time. In this case, the first month
of potential entitlement is November 2006, when the application was filed. Consequently,
the claimants would be considered dependent on the NH if he had been contributing
to their support in November 2006, or any month thereafter within the life of the
“Contributions for support” is defined at 20 C.F.R. § 404.366(a). To meet this definition,
the insured must give some of his own cash or goods to help support the child. See 20 C.F.R. § 404.366(a)(1). The contributions must be made regularly and be large
enough to meet an important part of the child’s ordinary living costs, i.e., food,
shelter, routine medical care, and similar necessities. See id.§ 404.366(a)(2).
As you indicated, the submitted materials include a court order from Hamilton County,
Ohio, enforcing a court order issued by the Circuit Court in Dearborn County, Indiana,
for collection of an arrearage in child support from the NH that was due prior to
the claimants’ adoptions. In addition, there are documents showing that the NH was
making payments to his former spouse for the claimants from July to December 2002,
apparently by check, and then again from September 2007 up to the time of his death,
apparently by garnishment from his workers’ compensation payments.
The NH’s child support payments appear to meet the definition of “contributions for
support” as of September 2007. Beginning that month, the payments were made regularly,
about every two weeks. Most of the payments were for $50.00; we believe this amount
was large enough to meet an important part of the claimants’ ordinary living costs.
See, e.g., Childress v. Sec’y of Health & Human Servs., 679 F.2d 623, 630 (6th Cir. 1982) (payments of $15-20 per month satisfied support
requirement). Notably, the payments were made in compliance with a court order for
arrearages in child support that were due prior to the claimants’ adoptions in 2002.
This raises the question whether, in making these past-due payments, the NH was contributing
to the claimants’ support at the time the payments were due or at the time they were
actually made. This issue was addressed in SSR 73-27. Similar to this case, in that
ruling the worker was ordered by a state court to continue paying his past-due child
support obligation after his natural children were adopted by their stepfather, and
the worker, in fact, made regular payments until the onset of his disability. The
Agency held that such payments constituted contributions for support within the meaning
of section 202(d)(3) of the Act; the fact that such payments were ordered by a court
solely to satisfy a pre-existing support obligation was immaterial. See SSR 73-27. Based on this ruling, we believe that the NH’s regular child support payments,
made after the claimants’ adoptions but for support due before the adoptions, constituted
contributions for support within the meaning of section 202(d)(3) of the Act.
Accordingly, beginning September 2007, the claimants met the dependency requirements
of section 202(d)(1)(C) of the Act, because the NH had been contributing to their
support at one of the relevant points in time.
In sum, based on the information and evidence provided, we believe that the claimants
meet all of the requirements for entitlement to child’s insurance benefits as of September
2007. In particular, they are considered to be the NH’s children under section 216(h)(3)(B)
of the Act, based on the NH’s acknowledgment in writing. Moreover, the claimants are
considered dependent on the NH as of September 2007, the first month after the application
filing date that the NH contributed to their support.
Donna L. C~
Regional Chief Counsel, Region V
By: Cristine B~
Assistant Regional Counsel