In Florida, children legally adopted by the deceased number holder's wife, but not by the deceased, would not qualify as his legally adopted children.

Additionally, they do not qualify as his equitably adopted children because there is no evidence that he ever intended to adopt them.

QUESTION

You asked whether a parent-child relationship could be established between the number holder and the two children the number holder's spouse adopted before the number holder's death.

OPINION

We believe, based on the evidence presented, the children adopted by the number holder's spouse are not the number holder’s children, because the number holder did not legally adopt the children. Accordingly, the children would not be eligible for child's insurance benefits on the number holder's record.

BACKGROUND

Based on the information provided, we understand the facts to be as follows. Johnny N. S~, the number holder (NH), and Ernestine S~ (Applicant), were married on October 18, 1985. The couple subsequently separated, but never divorced before NH's death on August 17, 2009. During their separation, Applicant petitioned to adopt two minor children, Gonnie and Thomas D~ (Claimants). On August 23, 2000, the Eleventh Judicial Circuit Court in Dade County, Florida entered a judgment of adoption, noting "Petitioner, Ernestine S~ is a fit and proper person to adopt the minor children," and "the minor children are suitable for adoption by Petitioner, Ernestine S~." The court declared Claimants the legal children and legal heirs of Applicant. The judgment of adoption does not list NH as an adoptive parent or refer to him. The amended birth certificates list Applicant as Claimants' mother, but do not list a father.

After NH’s death, Applicant applied for child’s insurance benefits on NH’s earnings record. In documents submitted with the application, Applicant reported to the Agency that NH refused the sign the adoption "papers" because NH and Applicant were separated at the time. Applicant also reported that NH "had nothing to do with the adoption and did not live with [her] or [the] children during or after the adoption. He did not support them either."

DISCUSSION

To qualify for child's insurance benefits on the earnings record of an insured individual who has died, a claimant must be that individual's "child." See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2009). "Child" is defined as the natural child, adopted child, or stepchild of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354. To establish their status as the adopted children, Claimants must have been legally adopted by NH. See 20 C.F.R. § 404.356. The Social Security Administration applies the adoption laws of the state where the adoption took place to determine if the claimant is the insured's legally adopted child. Id. In this case, Claimants were adopted in Florida; thus, Florida's adoption law controls.

Based on the evidence presented, Claimants have not been legally adopted by NH under the Florida adoption laws. Florida law is specific as to who may adopt a child, stating that a husband and wife may jointly petition to adopt or "a married person without the other spouse joining as a petitioner" may petition to adopt. See Fla. Stat. Ann. § 63.042(2)(a), (c) (2009). Florida law also states that the failure of the other spouse to join in the petition or to consent to the adoption may be excused for good cause shown or in the best interest of the child. Id. at (c)(2).

In this case, the evidence establishes that Applicant petitioned the state court to adopt Claimants before NH's death. The judgment of adoption declared Claimants to be Applicant’s legal children, and does not mention NH or indicate he joined in the adoption petition. The evidence also establishes that NH did not consent to the adoption. Applicant reported to the Agency that NH refused the sign the adoption "papers" because she and NH were separated at the time. Applicant also reported that NH "had nothing to do with the adoption and did not live with [her] or [the] children during or after the adoption. He did not support them either." Because Florida law does not require both spouses to join the adoption petition and the evidence establishes that NH took no part in adopting Claimants, NH did not legally adopt Claimants under Florida law. Accordingly, Claimants would not qualify as NH's legally adopted children.

A claimant also may be eligible for benefits as an equitably adopted child. See Act § 216(e); 20 C.F.R. §§ 404.354, 404.359. For a claimant to be eligible for benefits as an equitably adopted child of the insured, the insured must have agreed to adopt the claimant as his child but the adoption did not occur. See 20 C.F.R. § 404.359. Here, Claimants cannot qualify as equitably adopted children of NH because he did not agree to adopt Claimants and the adoption ultimately occurred without NH's consent.

CONCLUSION

We believe the evidence indicates Claimants are not NH's children under Florida adoption law. The documentation provided demonstrates Applicant alone adopted Claimants. Though she was married to NH at the time of the adoptions, the record shows the couple was separated and NH did not consent to the adoptions, join as petitioner, or participate in the adoption process. Furthermore, Claimants cannot qualify as NH’s equitably adopted children. Therefore, Claimants are not NH's adopted children for purposes of child's insurance benefits.
Mary A. S~
Regional Chief Counsel
By: _____________
Brian S~
Assistant Regional Counsel

For equitable adoption to exist under Florida law, the following elements must be proved by clear and convincing evidence: (1) an agreement to adopt between the natural parents and alleged adoptive parents; (2) performance by the natural parents of the child in giving up custody; (3) performance by the child by living in the home of the alleged adoptive parents; (4) partial performance by the alleged adoptive parents in taking the child into their home and treating the child as their own child; and (5) intestacy of the alleged adoptive parents.

In this case, where the claimant was returned to the custody of the State prior to the completion of the adoption and the number holder provides no support, the claimant is not considered to be the child of the number holder.

QUESTION

You have asked whether the claimant is still the equitably adopted child of the number holder and entitled to disabled adult child benefits on the number holder's earnings record.

OPINION

The claimant is not entitled to disabled adult child benefits on the number holder's record. The claimant is not longer the equitably adopted child of the number holder. Furthermore, the claimant's adoption was never formalized, the claimant was returned to the custody of the state prior to completion of the adoption, and the NH no longer provides support for the claimant. Thus, the claimant is not the equitably adopted child of the number holder and is not eligible for disabled adult child benefits on the number holder's record.

BACKGROUND

According to the information provided, Matthew E~, the number holder (NH) and his spouse took custody of Tatanisha H~ (Claimant) on August 31, 1992, with the intent to adopt Claimant. The St. Petersburg, Florida field office made a determination of equitable adoption on December 2, 1993, and Claimant was granted child's insurance benefits on NH's record. Claimant received benefits from January 1994 through September 1998, the month in which she turned eighteen. However, NH and his spouse never completed the adoption of Claimant and returned her to the custody of the state on December 12, 1994. Claimant's child's insurance benefits ceased in September 1998 when she turned eighteen. Claimant later applied for Supplemental Security Income (SSI) benefits on March 25, 1999, and was medically approved for SSI benefits. This case was flagged by the agency as part of the Special Disability Workload (SDW) project. SDW is an agency quality assurance initiative that reviews SSI determinations to determine if there is a Title 2 component. The Agency seeks review of Claimant's original child's insurance benefits determination to determine her potential continuing eligibility as a disabled adult child on the number holder's earnings record.

DISCUSSION

Under the Social Security Act, a "child" may qualify for child's insurance benefits on the earnings record of an insured person who is entitled to old-age or disability insurance benefits. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a) (2007). An alleged child may be related to the insured and entitled to benefits in a number of different ways including as a natural child, legally adopted child, or equitably adopted child. See Act § 216(e), 42 U.S.C. § 416(e), 20 C.F.R. § 404.354. A claimant is the legally adopted child of the insured if the adoption complied with the adoption laws of the state where the adoption took place. See 20 C.F.R. § 404.356.

The St. Petersburg, Florida field office determined Claimant was the equitably adopted child of NH on December 2, 1993, and Claimant was granted child's insurance benefits on NH's record. Claimant received benefits from January 1994 through the month of her eighteenth birthday. Through SDW, the Agency seeks to determine if Claimant is eligible for disabled adult child benefits on the NH's record.

A child whose entitlement to child's benefits ended when the child attained age eighteen may be re-entitled on the same earnings record provided the child still considered the child of the NH. See 20 C.F.R. § 404.351(b); POMS 00203.015. However, the regulations state that if two claims for benefits are filed on the same earnings records, findings of fact made in a determination on the first claim may be revised in determining or deciding the second claim, even though the time limit for revising the findings made in the first claim has passed. See 20 C.F.R. § 404.995.

While Claimant was originally determined to be the equitably adopted child of NH and granted child's insurance benefits on the NH's earnings record, the Agency must again evaluate Claimant's adoption status in order to determine if she is eligible for disabled adult benefits on the NH's record. See 20 C.F.R. § 404.995. The regulations indicate that a claimant is the equitably adopted child of the insured if:

the insured had agreed to adopt [the claimant] as his or her child but the adoption did not occur. The agreement to adopt [the claimant] 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's personal property if he or she were to die without leaving a will. The agreement must be in whatever form, and [the claimant] must meet whatever requirements for performance under the agreement, that State law directs. . . . If [the claimant] appl[ied] for child's benefits during the insured's life, the law of the State where the insured has his or her permanent home at the time or your application will be followed.

See 20 C.F.R. § 404.359. Therefore, we look to Florida law to determine if Claimant is still considered the equitably adopted child of NH.

In an action for equitable under Florida law, the following elements must be proved by clear and convincing evidence: (1) an agreement to adopt between the natural parents and alleged adoptive parents; (2) performance by the natural parents of the child in giving up custody; (3) performance by the child by living in the home of the alleged adoptive parents; (4) partial performance by the alleged adoptive parents in taking the child into their home and treating the child as their own child; and (5) intestacy of the alleged adoptive parents. See Williams v. Estate of Pender, 738 So.2d 453, 456 (Fla. Dist. Ct. App. 1999). In Florida, the doctrine of virtual adoption was not intended to create the legal relationship of parent and child. See Tarver v. Evergreen Sod Farms, 533 So. 2d 765, 767 (Fla. 1988). Its purpose is to avoid unfair results from the application of intestacy statutes. See id. Claimant's adoption was never formalized; Claimant was returned to the custody of the state prior to completion of the adoption; Claimant resides outside the household of NH; and the NH no longer provides financial support for Claimant. See 20 C.F.R. §§ 404.359, 404.365. Thus, Claimant is no longer considered the "child" of NH and is not eligible for disabled adult child benefits on NH's record.

CONCLUSION

Pursuant to Florida law, Claimant is not the equitably adopted child of NH. Thus, Claimant is not eligible for disabled adult child benefits on NH's record.

Very truly yours,
Mary A. S~
Regional Chief Counsel
____________
J. Samuel C~
Assistant Regional Counsel

Under Florida law, a court may not decree an adoption posthumously. Adoption requires that both the adopting parent and the adopted child be living at the time such relationship comes into being by judicial decree.

Under Florida law, an equitable adoption is referred to as "virtual adoption" and is invoked when the adoptive parents die intestate in order to enable the child to take intestate and prevent unfair results created by intestacy statutes.

You have requested our opinion as to whether, under Florida law, the adoption of Ramone M. A~ (Ramone) is valid and whether it creates the relationship required for entitlement to surviving child's benefits as a legally adopted child. We conclude that Ramone's legal adoption is not valid. In order to determine whether Ramone may be entitled to child's benefits as an equitably adopted child, additional facts are needed.

The facts presented are that on October 1, 1999, Vivian A~ applied for child's benefits on behalf of her minor son, Ramone, based on the earnings record of James B. W~. Mr. W~ died on June 6, 1999. On Ramone's application, Ms. A~ stated, "James W~ was my father. He began the adoption proceeding prior to his death." On September 2, 1999, the Circuit Court, Seventh Judicial Circuit, in and for Volusia County, Florida, issued a Final Judgment of Adoption declaring Ramone to be the legal child of the Mr. W~ and stating that Ramone "shall be the child and legal heir of the petitioner, James B. W~."

Under Florida law, a court may not decree an adoption posthumously. A judgment or decree of adoption establishes a personal relationship between one capable of adopting and one capable of being adopted. It necessarily requires that both the adopting parent and the adopted child be living at the time such relationship comes into being by judicial decree. Korbin v. Ginsberg, 232 So. 2d 417 (Fla. App. 1970).

Although Ramone is not a legally adopted child under Florida law, he may be eligible for benefits as an equitably adopted child. An equitable adoption occurs if the insured agreed to adopt a child as his own child but the adoption did not occur. Title 20 C.F.R. § 404.359 provides that the agreement to adopt must be one that would be recognized under State law so that the child would inherit a child's share of the insured's personal property if the insured were to die without leaving a will. Title 20 C.F.R. § 404.365 further provides that if you are the insured's equitably adopted child, you are considered dependent upon him if you were either living with or receiving contributions for your support from the insured at the time of his death.

Under Florida law, an equitable adoption is referred to as "virtual adoption" and is defined as an equitable doctrine created to "protect the interests of a person who was supposed to have been adopted as a child but whose adoptive parents failed to undertake the legal steps necessary to formally accomplish the adoption." Williams v. Dorrell, 714 So. 2d 574 (Fla. App. 1998). Virtual adoption does not create a parent-child relationship. It is invoked when the adoptive parents die intestate "in order to allow the supposed-to-have-been adopted child to take an intestate share" and to prevent unfair results created by intestacy statutes. Miller v. Paczier, 591 So. 2d 321 (Fla. App. 1991). The elements that are necessary to establish the doctrine of virtual adoption under Florida law are:

An agreement between the natural and adoptive parents;

Performance by the natural parents of the child in giving up custody;

Performance by the child by living in the home of the adoptive parents;

Partial performance by the foster parents in taking the child into the home and treating the child as their child; and

Intestacy of the foster parents.

Williams v. Dorrell, 714 So. 2d at 575-576; In re Matter of Heirs of Hodge, 470 So. 2d. 740, 741 (Fla. App. 1985) (citing Sheffield v. Barry, 14 So. 2d 417 (Fla. 1943)).

It is our conclusion that Ramone's legal adoption is not valid. As submitted, the facts do not show the necessary elements to establish the doctrine of virtual adoption under Florida law. Additionally, for purposes of establishing entitlement under 20 C.F.R. § 404.365, further development is necessary to determine whether, at the time of his death, Mr. W~ was living with Ramone or contributing to his support.

ADOPTION — Equitable — State Law — FLORIDA

Where alleged contract to adopt was made in Virginia, where equitable adoption is not recognized, courts of Florida, were wage earner died domiciled, would not enforce such contract, and child may not be considered equitably adopted child of wage earner.

(K , Iris S. — — RA IV (B~) to Reg. Rep., Phila. PC 2/6/81)

The memorandum dated December 2, 1980, from the Regional Attorney, Philadelphia, requested a supplemental opinion from this Office as to whether Florida would find an equitable adoption of Iris S. K~ by the deceased wage earner where all acts giving rise to the uncompleted legal adoption took place in Virginia but the wage earner was domiciled in Florida.

It is our opinion that the courts of Florida would apply the law of the State of Virginia and, as stated in the above referenced memo, Virginia would find there was no adoption.

All the alleged Acts giving rise to the uncompleted legal adoption took place in the State of Virginia. Virginia does not recognize the Doctrine of Equitable Adoption. Where the alleged contract to adopt was made in Virginia, where equitable adoption is not recognized, the Courts of Florida, where the wage earner died, would not enforce such a contract, and the child may not be considered an equitably adopted child of the wage earner. W~ , Charles A. — ~ — RA IV (K~) to Reg. Rep., Phila. PC — 5/23/69). The above referenced opinion specifically determined that a non-completed adoption which occurred in Virginia would not be recognized in Florida, where the wage earner was domiciled at the time of his death.