PR 01510.017 Indiana

A. PR 08-094 MOS - Indiana: Validity of Post-Mortem Adoption Reference Number: S2D5G6 Our Control Number: 08-0100

DATE: April 14, 2008


In Indiana, a State which does not recognize equitable adoption, an adoption decree was requested by the claimant's guardians after the number holder's death and issued by the Elkhart County Superior Court. Since the decree was issued in a manner not consistent with State law and was not contested in court by parties with opposing interests, it is not binding on the Social Security Administration.


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; [1] (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), [2] 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. [3] 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. [4]

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
By: _________________
Julie L. B~
Assistant Regional Counsel

B. PR 86-038 Child's Insurance Benefits - Equitable Adoption - Indiana Richard A. F ~ , A/N~

DATE: October 14, 1986


Equitable adoption is not recognized by the Courts of Indiana. Indiana's “law of descent and distribution is of long standing and based upon the traditional relationships of marriage, blood or adoption.” (F~, Richard A., ~ — RAV (U~) , to ARC, Progs., 10/14/86.)


Richard A. F~ , the wage earner, filed an application for child's insurance benefits on behalf of his grandson, Scott A. F~. Scott was born on October 22, lg68 to Vernon R. and Susan M. F~ . On September 22, 1971, Vernon and Susan were divorced and the wage earner's wife, Jean, was awarded custody of Scott. Scott began living with Richard and Jean F~ when he was approximately three years old. You question whether Scott was equitably adopted by the wage earner. For the following reasons, we are of the opinion that he was not.

Section GN 00306.385 of the Program Operations Manual System (POMS) indicates that the State of Indiana recognizes the doctrine of equitable adoption. However, we recently informed you that to the contrary, Indiana does not recognize equitable adoption. Oliver C. F~, A/N ~ OGC-Region V (U~) to ARC Programs, (October 29, 1985,). The district office questioned our opinion in F~ because it “so glibly makes such a remark regarding equitable adoption.” Nevertheless we have reexamined the issue and we are of the opinion that the position stated in F~ is correct.

In our F~ opinion, we relied primarily upon the decision of the Court of Appeals of Indiana in In re Estate of Fox v. Irwin Union Bank & Trust Co., 164 Ind. App, 221, 328 N.E.2d 224 (1975). In that case, the court hesitated to approve the concept of equitable adoption:

We believe that it is understandable that the trial court, as well as this court, would have a reluctance to approve this principle of law. Our law of descent and distribution is of long standing and based upon the traditional relationships of marriage, blood, or adoption. That law has worked well — as evidenced in part by the fact that this is the first case of its kind in Indiana judicial history.

328 N.E.2d at 225 (emphasis added). The court ultimately declined to resolve the issue of whether Indiana recognizes the doctrine of equitable adoption. Instead, the court rejected the appellant's specific claim of equitable adoption because it was unsupported by sufficient evidence. Since the Fox decision, however, the Indiana appellate court has affirmatively rejected the doctrine. In Lindsey v. Wilcox, 479 N.E.2d 1330, 1332-1333 (Ind. App. Ct. 1985), the court stated:

[A]lthough our earlier decision in Fox expressed hesitation in approving the doctrine of equitable adoption, we now hold that this doctrine never has been approved in Indiana and it continues to be denied judicial approval.

Accordingly, the wage earner could not have equitably adopted Scott A. F~. By memorandum dated October 10, 1986, we recommended to the Office of Retirement and Survivors' Insurance that the POMS be revised to reflect the current position of the Indiana courts.



We were not asked to determine whether Sydney was dependent on the NH.


The key issue in M.M.G.C. was not whether the prospective adoptive parent was a living resident of Indiana, but whether an adoptive mother's same-sex partner could file her own petition to adopt the children without cutting off the first adoptive mother's parental rights.


Even considering the NH a non-resident instead of a deceased former resident does not resolve the issue. A person who is not a resident of Indiana may petition to adopt a hard-to-place child, but that statute presumes the existence of a living non-resident who files the petition to adopt. Ind. Code § 31-91-2-3(a). Other than cases involving equitable adoptions, research has not revealed any decision, in Indiana or elsewhere, where a court has considered whether a dead person may legally adopt a minor child.


Despite the fact that none of the petitioners were themselves seeking to adopt Sydney, the case caption does not state that any of the petitioners were filing the petition for adoption on the NH's behalf. We also do not know whether the NH's parents had standing to file a petition on his behalf; the NH left a will, but we do not whether his parents were the administrators of his estate.

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PR 01510.017 - Indiana - 05/07/2008
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