You asked whether an Indiana adoption decree declaring that Slade B~, the number-holder
(NH), was the father of the minor child Sydney A. B~ established a valid adoptive
relationship between the NH and the child. The decree was issued after the NH's death.
We conclude that the decree is inconsistent with Indiana law, and therefore does not
establish a valid adoptive relationship under the Social Security Act.
Sydney was born out of wedlock to Elizabeth J. A~ on March 3, 1997. The NH was not
her biological father. Elizabeth married the NH on April 20, 1997. They were divorced
in November 1999, re-married on July 3, 2000, and divorced again in October 2003.
In February 2002, during the second marriage, the NH took steps to adopt Sydney. The
attorney whom the NH asked to prepare the adoption papers attempted to contact the
NH about the adoption in March 2002, but never heard back from him. No adoption was
completed before the second divorce between Elizabeth and the NH. However, an amended
birth certificate, issued on January 7, 2003, gave Sydney's name as Sydney A. B~,
and listed the NH as her father. The NH retained visitation rights to Sydney after
the divorce, and at some point was named guardian ad litem to Sydney and given temporary
custody of her. The NH died while domiciled in Indiana on April 17, 2006. He apparently
left Sydney half his estate in his will.
After the NH's death, Sydney lived with Elizabeth, but the NH's parents, James and
Jeraldine B~, were named as Sydney's legal guardians. In 2006, Elizabeth, James, and
Jeraldine filed a petition for adoption with the Elkhart (Indiana) Superior Court,
asking that the NH be decreed Sydney's adoptive father. Sydney's biological father,
who had not supported her financially, was given notice of the petition but did not
appear at the adoption hearing; the court ruled that his consent was not necessary
for the adoption. The court acknowledged that the NH was deceased, but found that,
prior to his death, the NH had not only had temporary custody of Sydney and supported
her financially, but treated her has if she were his biological child. The court found
that the adoption was in Sydney's best interest, and granted the adoption petition
on December 31, 2006, decreeing that Sydney be adopted by the NH, and that her name
be changed to Sydney A. B~.
In order to be eligible for child's benefits on the account of a wage earner who has
died, a child under 18 must (a) meet the regulatory definition of “child;” (b) have
been dependent on the wage-earner;  (c) be unmarried; and (d) file an application. 42 U.S.C. § 402(d)(1); 20 C.F.R. §
404.350. The regulatory definition of “child” includes legally adopted children and
equitably adopted children. 20 C.F.R. §§ 404.354, 404.356, 404.359. The law of the
state where the adoption took place, or where the wage earner was domiciled at the
time of his death, is used to determine whether the adoption was valid. 20 C.F.R.
§§ 404.356, 404.359. For that reason, Indiana law governs this case.
Indiana does not recognize equitable adoptions. Lindsey v. Wilcox, 479 N.E.2d 1330, 1332 (Ind. Ct. App. 1985) (“With other readily available alternative
of disposing of property by will or gift, no compelling reason surfaces to create
a judicial doctrine to serve the same purpose when the statutory schemes of probate
or adoption seem quite adequate”); Seger v. Seger, 780 N.E.2d 855, 858 (Ind. Ct. App. 2002); POMS GN 00306.225(A)(1)(a). Therefore, Sydney may be considered the NH's child for purposes of receiving
child's insurance benefits on his account only if she is his legally adopted child
under Indiana law.
The Indiana Adoption Act states that “[a] resident of Indiana who seeks to adopt a
child” may file a petition for adoption. Ind. Code § 31-19-2-2(a); In re Infant Girl W., 845 N.E.2d 229, 242 (Ind. Ct. App. 2006). Thus, prospective adoptive parents must
be residents of Indiana. In re adoption of M.M.G.C., 785 N.E.2d 267, 270 (Ind. Ct. App. 2003) (in dicta),  citing Ind. Code § 31-19-2-2(a). The Adoption Act includes a consent statute, but
that statute does not require the prospective adopting parent to consent to the adoption.
Ind. Code § 31-19-9-2; see In re Adoption of Infant Child Baxter, 799 N.E.2d 1057, 1060 (Ind. Ct. App. 2003). Such consent is presumably implied from
the filing of a petition for adoption.
In this case, the NH was dead at the time the petition for adoption was filed. Therefore,
he was not a resident of Indiana. Because he was not a resident of Indiana, he could
not be a prospective adoptive parent. M.M.G.C., 785 N.E.2d at 270. Similarly, because he was dead, he could not “seek to adopt”
a child. Ind. Code § 31-19-2-2(a). The persons who filed the petition for adoption
- Elizabeth, James, and Jeraldine - were all residents of Indiana, but none of them
were “seek[ing] to adopt” Sydney. Id. Nothing in the Adoption Act contemplates the possibility of a dead person, including
a deceased former resident, being a prospective adoptive parent.  The NH in this case had the opportunity to adopt Sydney, but did not do so during
his lifetime; instead he left her his property by means of a will. Thus, under the
plain language of the Indiana Adoption Act, the NH could not be a prospective adoptive
parent, and the petitioners could not file an adoption petition on his behalf. 
Although Indiana law governs, this finding is also consistent with Social Security
regulations, which do not contemplate post-mortem legal adoptions. The regulations
define a legally adopted child as someone who is either adopted by the NH, or legally
adopted after the NH's death by his surviving spouse. 20 C.F.R. § 404.356. The NH
did not adopt Sydney while he was alive; Elizabeth was Sydney's natural mother, not
her adoptive mother, and because they were divorced she was not the NH's “surviving
spouse” after his death.
The Elkhart Superior Court, which issued the adoption decree adjudicating the NH to
be Sydney's father, has jurisdiction to resolve issues relating to adoption. The adoption
proceeding, however, was not contested in the state court by parties with opposing
interests. In addition, although the Indiana Supreme Court has never directly addressed
the questions at issue in this case, the decree was inconsistent with Indiana law.
For those reasons, the adoption decree is not binding on the Agency. SSR 83-37C; Grey v. Richardson, 474 F.2d 1370 (6th Cir. 1973); George v. Sullivan, 909 F.2d 857, 860-61 (6th Cir. 1990).
For the reasons discussed above, we conclude that the claimant is not entitled to
benefits as the NH's adopted child.
Donna L. C~
Regional Chief Counsel, Region V
Julie L. B~
Assistant Regional Counsel