TN 7 (09-17)

PR 01410.042 Pennsylvania

A. PR 17-117 Does Claimant Qualify for Child’s Insurance Benefits (CIB) after NH's Death and Adoption by Grandparents

Date: August 15, 2017

1. Syllabus

Pennsylvania law provides that for the purposes of inheritance, an adopted person shall be considered the issue of the adopting parents and “shall not be considered as continuing to be the child or issue of his natural parents.” After the adoption, the child attains the status of a natural child of the adopting parents.

In this case, because the claimant was adopted before she applied for benefits, we believe that the relationship between the claimant and the number holder (NH) was severed such that the claimant no longer has the right to inherit from the NH under Pennsylvania intestacy law. Therefore, the claimant does not qualify for surviving child’s insurance benefits on the NH’s record under § 216(h)(2) of the Social Security Act (Act). There is also no evidence suggesting that the claimant meets the criteria to establish that she was a non-marital child under § 216(h)(3) of the Act.

2. Opinion

QUESTIONS PRESENTED

You asked us to determine if claimant, C~ (claimant), qualifies for surviving child’s insurance benefits on the record of the deceased Number Holder, C2~ (NH), under Pennsylvania law, where the claimant was adopted by her grandparents three years after NH’s death, and before claimant applied for surviving child benefits on NH’s record. You also asked us if claimant’s benefits should be denied for failure to establish dependency on NH.

SHORT ANSWER

We believe that claimant is not entitled to benefits. To qualify, claimant must be both (1) NH’s natural child, and (2) his dependent. On this record, claimant is neither. Therefore, she does not qualify for surviving child’s insurance benefits on NH’s record.

BACKGROUND

Claimant was born in Pennsylvania on August XX, 2007. Claimant’s parents were not married. NH was listed as claimant’s father on claimant’s birth certificate, which was issued on October XX, 2012. NH did not sign the birth certificate.

In 2010, Claimant’s natural mother, J~, petitioned for custody of claimant. NH was the named defendant. In June 2012, a custody mediation occurred. NH was incarcerated and could not participate. The mediator recommended that J~ have sole and legal custody of claimant, which could be reconsidered on NH’s request after he was released from custody. On July XX, 2012, the court approved the mediator’s recommendation.

On October XX, 2012, NH died in Pittsburgh, Pennsylvania. NH was not under a disability at the time of his death.

On September XX, 2013, the Court of Common Pleas of V~ County, Pennsylvania entered an order decreeing that NH had died and was claimant’s parent. It further decreed that E~ and C3~ (“E~ and C3~”) were NH’s natural parents, and that E~ AND C3~ were the paternal grandparents of claimant.

On September XX, 2015, E~ AND C3~ petitioned to adopt claimant. The petition stated that NH was the natural father of claimant and had passed away on October XX, 2012. J~, Claimant’s natural mother, consented to the petition and relinquished all parental rights to claimant.

On November XX, 2015, the Court of Common Pleas of C~ County, Pennsylvania, granted E~ and C3~’s petition. The court’s adoption decree ordered that claimant was adopted by E~ and C3 who shall have all the rights of the child and heir of said adopting parent . . . .” The decree did not specifically terminate NH’s parental rights. On the same day, the court also entered an order stating that the NH was “[t]he biological father” of claimant.

Claimant’s new birth certificate, issued on June XX, 2016, listed E~ as claimant’s father and C3~ (paternal grandmother’s name before marriage) as her mother.

In October 2016, C3~ applied for retirement insurance benefits and claimant filed for benefits under C3~’s record.

SSA determined that claimant’s benefits would be higher if she filed for surviving child benefits as NH’s non-marital daughter. Claimant was awarded benefits on NH’s SSN, with April 2016 as the month of entitlement.1

DISCUSSION

A claimant can establish entitlement to child’s benefits on the earnings record of an insured person if claimant is: (1) a “child” of the insured based on a relationship described in §§ 404.355-404.359; (2) dependent on the insured as defined in §§ 404.360-365; and (3) the claimant applies, is unmarried, and (4) is 18 years of age or younger. 20 C.F.R. § 404.350(a). See Social Security Act (Act) §§ 202(d), 216(h)(2), (h)(3), 42 U.S.C. §§ 402(d), 416(h)(2), (h)(3); Program Operations Manual (POMS) RS 00203.001A.1.

As it is undisputed that the claimant was not married and under 18 years of age at all relevant times, the relevant inquiry here is whether the claimant is the NH’s child and whether she was dependent on NH.

1. Claimant is not NH’s Natural Child Under the Act.

To qualify for child’s insurance benefits on the earnings record of a deceased insured individual, a claimant must be the insured’s “child.” Act § 202(d). Here, there are three ways that claimant could qualify as NH’s child:

  1. First, a claimant may be eligible for benefits as the natural child of the deceased under Section 216(h)(2) of the Act if she can inherit from the insured as his child under the laws of the state where the deceased was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b).

  2. Second, a claimant can qualify as the deceased insured individual’s child under Section 216(h)(3) of the Act if the deceased, before his death, either acknowledged the claimant in writing as his child, was decreed by a court to be claimant’s father, or was ordered by a court to contribute to claimant’s support because she was the deceased’s child. See Act § 216(h)(3)(C)(i), 20 C.F.R. § 404.355(a)(3).

  3. Third, a claimant can qualify under Section 216(h)(3) of the Act if the claimant has satisfactory evidence showing that the deceased was her parent, and the deceased contributed to the claimant’s support at the time the deceased died. See Act § 216(h)(3)(C)(ii), 20 C.F.R. §404.355(a)(4).

As explained below, we conclude that claimant cannot receive benefits on NH’s record because:

(1) claimant’s adoption severed her relationship to NH;

(2) the evidence provided by claimant does not establish that, prior to NH’s death, a Court decreed that NH was claimant’s father or that NH held himself out as claimant’s father; or

(3) that NH contributed to claimant’s support prior to his death.

a. Claimant is not NH’s Child Under Section 216(h)(2) of the Act Because she Cannot Inherit from NH Under Pennsylvania Law.

Claimant cannot inherit from NH under Pennsylvania law. To determine if a claimant could inherit from the NH, the agency applies the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1); POMS 00306.055. Because NH was domiciled in Pennsylvania when he died, we look to Pennsylvania law to determine whether the claimant could inherit from NH as NH’s child. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

Pennsylvania intestacy law provides that a child can inherit from a parent. See 20 Pa. C.S.A. § 2103. However, in Pennsylvania, a non-marital child is considered a child of a man for inheritance purposes only where: (1) the biological parents subsequently marry; (2) the man holds the child out to be his own and (a) receives the child into his home, or (b) there is clear and convincing evidence that the father has provided support for the child; or (3) there is other clear and convincing evidence that the man was the father of the child, which may include a finding of paternity. 20 Pa. C.S.A. § 2107(c). See also POMS GN 00306.610 (discussing Pennsylvania intestacy law with regard to children born out of wedlock). The burden of establishing clear and convincing evidence in Pennsylvania is high: “‘Clear and convincing evidence’ is the highest burden in our civil law and requires that the fact-finder be able to ‘come to clear conviction, without hesitancy, of the truth of the precise fact at issue’.” In re Estate of Heske, 647 A.2d 243, 244 (Pa. Super. Ct. 1994) (quoting Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)).

Based on the record, there is no evidence that claimant’s biological mother and NH married. Nor is there clear and convincing evidence that NH provided support for claimant during his lifetime. Finally, NH was engaged in a custody dispute with claimant’s biological mother and was added as the father on claimant’s birth certificate shortly before his death, which suggests that claimant could possibly satisfy the third criteria if she were to provide additional evidence.2 However, the record does not contain clear and convincing evidence, such as a paternity test, which establishes that NH was claimant’s father. Accordingly, claimant cannot inherit from NH under 20 Pa. C.S.A. § 2107.

Even if claimant could inherit from NH under 20 Pa. C.S.A. §2107, her adoption by E~ and C3~ forecloses the possibility of her inheriting from NH in Pennsylvania. The Pennsylvania statute provides that for the purposes of inheritance, an adopted person shall be considered the issue of her adopting parents and “shall not be considered as continuing to be the child or issue of his natural parents . . . .” 20 Pa. C.S.A. § 2108. As the Pennsylvania Superior Court explained it, the adoption of a child in Pennsylvania “‘severs the child from its natural family tree and engrafts it upon that of its new parentage. Thereafter the child attains the status, in law, of a natural child of the adopting parents’.” Estate of Ogden, 509 A.2d 1271, 1276 (Pa. Super. Ct. 1986) (quoting In re Schwab’s Adoption, 50 A.2d 504, 505 (1947)).

Here, because claimant was adopted in November 2015, nearly a year before she applied for benefits, we believe that the relationship between claimant and NH was severed such that claimant no longer has the right to inherit from NH under Pennsylvania intestacy law. See 20 Pa. C.S.A. § 2108 (adopted person “shall not” be considered child of natural parent); Estate of Ogden, 509 A.2d at 1276 (adopted child “sever[ed]” from natural family tree). Thus, we believe that the claimant does not qualify for surviving child’s insurance benefits on NH’s record under § 216(h)(2). See 20 C.F.R. § 404.355(b)(4).

b. Claimant is not NH’s Child Under Section 216(h)(3) of the Act Because There is Insufficient Evidence Demonstrating that NH or a Court Acknowledged Claimant as his Child Before NH died, or that NH Supported Claimant at the time of his Death.

There is also no evidence suggesting that claimant meets either of the two other criteria to establish that she was a non-marital child under the Act. Act § 216(h)(3)(C)(i)-(ii). See 20 C.F.R. § 404.355(a)(3)-(4); POMS GN 00306.100. First, claimant could be considered NH’s natural child if: (i) NH acknowledged in writing that claimant was his child; (ii) a court decreed that NH was claimant’s father; or (iii) NH was ordered by a court to contribute support because claimant was NH’s child. 20 C.F.R. § 404.355(a)(3). The acknowledgment or court order/decree must have issued before the NH’s death. 20 C.F.R. §404.355(a)(3). Second, claimant could qualify as NH’s natural child if she has “satisfactory evidence” showing that the NH was her father, and that the NH contributed to the support of the claimant at the time NH died. 20 C.F.R. § 404.355(a)(4).

Claimant does not meet the criteria under 20 C.F.R. § 404.355(a)(3). The record does not contain a written acknowledgment by NH that he was claimant’s father. Moreover, although there are multiple court orders stating that NH was claimant’s father, each was entered after NH died, which does not meet 20 C.F.R. §404.355(a)(3). Pennsylvania courts are similarly cautious about paternity evidence produced after the alleged father’s death. See Estate of Hoffman, 320 Pa. Super. 113, 117, 466 A.2d 1087, 1089 (1983) (“claims of paternity made after the lips of the alleged father have been sealed by death are in that class of claims which must be subjected to the closest scrutiny and which can be allowed only on strict proof so that injustice will not be done.”). Additionally, the limited documents provided from NH’s custody dispute before his death do not refer to NH as claimant’s father (instead, referring to him as “Defendant”).3 Accordingly, claimant cannot be considered NH’s natural child under 20 C.F.R. § 404.355(a)(3).

Claimant does not meet the 20 C.F.R. § 404.355(a)(4) criteria either. The birth certificate issued shortly before NH’s death listing NH as her father, his involvement in the custody dispute, and the subsequent court orders identifying NH as claimant’s father could possibly constitute “satisfactory evidence” establishing that he was claimant’s natural father. However, there is no evidence that NH contributed to claimant’s support at the time he died. Instead, from the limited custody dispute materials provided, it is apparent that as of June 2012, NH was incarcerated and that her natural mother had sole custody of claimant.4 Accordingly, claimant cannot establish that NH contributed to her support such that she could establish that she is NH’s natural child under 20 C.F.R. § 404.355(a)(4).

2. Claimant is not NH’s Dependent Under Section 202(d)(1)(C) of the Act.

In addition to being the deceased’s “natural child,” the Act also requires that the surviving child be the “dependent” of the insured individual. Act § 202(d)(1)(C), 42 U.S.C. § 402(d)(1)(C); 20 C.F.R. §§ 404.360-365. Claimant does not meet this requirement either.

Natural children are considered dependent on the insured unless, as was the case here, the claimant was adopted by someone other than the insured. 20 C.F.R. § 404.361(b) (governing “[d]ependency of natural child legally adopted by someone other than the insured”). See also POMS GN 00306.055A.2 (“The child is deemed dependent on the father unless the child was adopted by someone else”).

Although § 404.361(b)(2) provides two exceptions that could enable an adopted child to be considered a dependent of someone other than her adoptive parent, claimant here does not meet either exception based on the materials provided. First, claimant could possibly be considered dependent on NH if she applied for benefits on NH’s record before she was adopted by E~ and C3~. 20 C.F.R. § 404.361(b)(2)(i). However, claimant applied for benefits in October 2016, nearly a year after E~ and C3~ adopted her. Second, claimant could possibly be dependent if NH had period of disability that lasted until his death and that claimant was adopted by someone other than NH after the beginning of that period of disability. 20 C.F.R. § 404.361(b)(2)(ii). However, NH was not disabled at the time of his death. Accordingly, claimant was not NH’s dependent at the time of his death.

Because claimant cannot establish that she was NH’s natural child, or that she was dependent on NH, she is not entitled to surviving child’s benefits on NH’s record.

CONCLUSION

We believe that claimant does not qualify as NH’s natural child or his dependent. Therefore, based upon the evidence we received, we believe that the claimant is not entitled to surviving child’s insurance benefits under the Social Security Act.

Sincerely,

Nora Koch

Regional Chief Counsel

By: Gregg W. Marsano

Assistant Regional Counsel


Footnotes:

[1]

. We are not providing an opinion concerning any possible overpayment or waiver thereof.

[2]

. Claimant’s adoptive parents declined a request to provide additional materials from the custody dispute, such as NH’s pleadings where he may have acknowledged paternity or prior custody orders identifying NH as claimant’s father, which may satisfy this criteria.

[3]

. If claimant provides additional materials from the custody dispute where NH identifies himself as claimant’s father, we suggest further evaluation of this issue.

[4]

. If claimant provides evidence that NH was providing one-half of claimant’s support, or that she was living with him at the time of his death, 20 C.F.R. 404.366, she could possibly be found to be NH’s natural child under 20 C.F.R. 404.355(a).


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PR 01410.042 - Pennsylvania - 09/06/2017
Batch run: 09/06/2017
Rev:09/06/2017