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
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.
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.
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
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.
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