On April 22, 2002, you asked us for a legal opinion on the effect of a second adoption
on Branden C~'s (Branden) eligibility for benefits on the record of the number holder,
Carroll D~ (Mr. D~), who had previously adopted Branden.
Based on our review of the facts in this case and our research of the relevant statutes
and case law, we believe that Branden C~ is not entitled to benefits on the record
of Carroll D~ based on his 2001 application because the second adoption cut off his
right to inherit from Carroll D~ under West Virginia law.
In your request, you stated that Carroll D~, the natural grandfather of Branden C~,
adopted Branden soon after his birth in 1979. Branden received disability benefits
on Mr. D~'s earnings record from February 1985 through July 1998, at which time benefits
were stopped because Branden was no longer a full-time student.
In October 1989, Branden's natural parents, Regina C~ and Bradford C~, adopted him
with the consent of Mr. D~.
Branden filed an application for childhood disability benefits on September 17, 2001.
The agency found Branden to be disabled as of May 1, 2001.
If Branden had continued to be receive child's benefits under the record of Mr. D~
after July 1998, the issue would be whether his entitlement was terminated by the
second adoption. POMS RS 00203.035B.3.; Social Security Ruling 91-6. In that case, the question would be whether the
second adoption annulled the first adoption by Mr. D~. Id. Under West Virginia law, an adoption is final within six months of the date of the
adoption order and may not be vacated on any grounds. W. Va. Code § 48-22-704 (2001).
There is no evidence that Plaintiff's initial adoption was challenged within this
six month period. In fact, Plaintiff was not adopted by his natural parents until
1989, presumably almost ten years after the initial adoption. Accordingly, under this
standard, the initial adoption was final and could not have been annulled by a second
However, Branden's initial entitlement to child's benefits under the record of Mr.
D~ ended in July 1998, when he was no longer a full-time student. POMS RS 00203.035B.2. Accordingly, the relevant issue is whether Branden was currently entitled to child's
disability benefits on the earnings record of Mr. D~ in September 2001. Branden would
be entitled to child's disability benefits only if the second adoption did not cut
off his right to inherit from Mr. D~ under West Virginia law. 42 U.S.C. § 216(h)(2)(A)
(providing that a child may be deemed the child of an insured individual if he would
be able to inherit intestate property from the insured individual under the laws of
the state in which the insured was domiciled); POMS GN 00306.016A.
Under West Virginia law, a second adoption does cut off the child's right to inherit
from his first adopted parent. W. Va. Code § 48-22-703 (2001). Accordingly, Branden's
right to inherit from Mr. D~ was cut off with his adoption in October 1989. As previously
explained, the agency would not have been required to terminate Branden's benefits
in 1989, despite the second adoption, because the initial adoption was not nullified
by the second adoption. However, Branden was not entitled to child's disability benefits
on the earnings record of Mr. D~ when he filed his current application in September
Branden C~'s entitlement to disability benefits on the record of Mr. D~ ended in July
1998 when he was no longer a full-time student. He was not entitled to child's disability
benefits in September 2001, when he filed his current application, because his right
to inherit from Mr. D~ had been cut off when he was re-adopted by his natural parents
in October 1989. Accordingly, Branden is not entitled to child's disability benefits
on the record of Mr. D~.
Frank V. S~, III
Acting Regional Chief Counsel
Kelly C. C~
Assistant Regional Counsel