TN 9 (11-16)

PR 01510.018 Iowa

A. PR 16-124 Request for Legal Opinion on Equitable Adoption in Iowa

Date: April 25, 2016

1. Syllabus

The number holder (NH) was domiciled in Iowa; therefore, we apply the Iowa law to determine if the claimant could be eligible for benefits. In Iowa, an individual may be considered equitably adopted by a deceased person if he or she proves:

(1) an unexecuted agreement or contract to adopt that the deceased entered into, and

(2) performance of the adoption agreement by the child. The agreement to adopt does not have to be written.

In this case, the evidence provided indicates that both elements of an equitable adoption have been met. The claimant is considered to be equitably adopted and is entitled to surviving child benefits on the NH’s record as long as the other requirements for benefits are met.

2. Opinion

You requested a legal opinion on whether the agency could pay surviving child benefits to D~ as an equitably adopted child of J~, the deceased number holder (NH). For the reasons discussed below, it is our opinion that D~ meets the requirements for an equitably adopted child in the state of Iowa, and is therefore entitled to benefits, provided all other requirements for the award of benefits are met.


D~ was born on April XX, 1998, to S~ and B~. According to the statements of J2~ and N~, the NH’s biological children, D~ began living with the NH in 1999, when he was one year old. Your memorandum indicates that, after leaving D~ with the NH in May of 1999, S~ initially intended to return for him at the end of the summer. She later called the NH, however, and reported that she was not able to care for her son, and returned only briefly to prepare custody paperwork.

Court documents indicate that a judge appointed the NH, who was known then as J~, as guardian of D~ on December XX, 1999. In January of 2002, a little over two years later, the NH filed a Petition for Child Custody in which she stated that she had maintained custody of D~ since 1999 and that his biological parents believed it was in his best interest for the court to permanently transfer custody to her. The NH waived her right to collect child support from the biological parents, stating that she was fully capable of financially supporting a child. The Petition for Child Custody requested that the court award the NH “full legal care[,] custody[,] and control” of D~. As a part of this case, the NH filed a Stipulation, which she and the biological parents signed. In it, all parties acknowledged that the NH was D~’s guardian and all parties agreed that it was in D~’s best interest for full legal care, custody, and control to be vested in the NH. On January XX, 2002, a judge in M~, Iowa, found that D~ had been in the physical care of the NH since May of 1999, and that the NH had been his appointed guardian on December XX, 1999. The court issued an order awarding “permanent” care, custody, and control of D~ to the NH. Upon the NH’s request, the court did not order child support but ordered that she pay the costs of the custody action. Handwriting on the order indicates that S~, the biological mother, did not have an address.

In 2004, D~’s biological father, B~, signed a document entitled Consent to Adoption and Termination of Parental Rights. In it, he stated that he was aware of the NH’s desire to adopt D~ and consented to the adoption and the termination of his parental rights. B~ apparently signed the document on December XX, 2004, but it was not filed with the court until September XX, 2011, almost seven years later. The Consent to Adoption and Termination of Parental Rights bears the same identifying case number as the 2002 Petition for Child Custody, indicating that it was not filed as a part of a separate adoption case.

The NH, who was domiciled in Iowa, died on October XX, 2015. Her online obituary[1] states that she “was blessed with three children: N~, J2~, and D~,” and that she is survived by her children, N~, J~, and D~. An online guestbook from the funeral home’s website[2] has several entries in which D~ is mentioned along with the NH’s husband and her other children, as though he was her natural child.

D~ signed a Petition for Appointment of Guardian (Voluntary) on October XX, 2015, requesting that J2~ be appointed as his guardian. The form he signed applied to minor children over the age of 14. The court appointed J2~ as D~’s guardian on November XX, 2015, and she applied for survivor benefits on D~’s behalf on January XX, 2016. In connection with the application, both of the NH’s daughters provided statements. Both daughters relayed that the NH had custody of D~ since 1999, after S~ relinquished custody to her. The statements also indicate that S~ gave verbal consent to D~’s adoption, while the biological father gave written consent, and that D~ called the NH “mom” and was generally know by her last name. According to NH’s daughters, D~ had no contact with his biological parents after the NH became his guardian. N~ reported that an adoption study was performed in anticipation of an adoption, but the adoption was never completed. J2~ reported that the NH’s attorney passed away unexpectedly before an adoption could be completed and, after obtaining another attorney, the NH passed away unexpectedly. Both daughters acknowledge that the NH had not made any financial provisions for D~’s future prior to her death.

J2~ reported to the field office that the adoption case was transferred to attorney B2~ after the first attorney’s death. A claims representative spoke with B2~, who assisted[3] the NH in the 2002 custody case, and he reported that he had not filed any pleadings relating to an adoption. J2~ also provided education records that show that the NH was referred to as D~’s parent and indicate that they lived at the same address. She also provided medical records showing that D~ was referred to as an adopted child and the NH was his mother.


The Social Security Act (Act) provides that the child of an insured individual who dies fully or currently insured is entitled to benefits if he has applied for benefits, is unmarried, is under age the age of 18, and was dependent on the insured individual when the insured individual died. See Act § 202(d); 20 C.F.R. § 404.350. To qualify as the child of an insured individual, the child must be the natural child, legally adopted child, stepchild, grandchild, step-grandchild, or equitably adopted child of the insured individual. See 20 C.F.R. §§ 404.355-404.359.

A claimant may be eligible for benefits as an equitably adopted child if: (1) the insured had agreed to adopt the claimant; (2) the adoption did not occur; and (3) the agreement to adopt is recognized under state law so that the claimant would be able to inherit the child’s share of the insured person’s estate if the insured died without leaving a will. See 20 C.F.R. § 404.359. In this case, because the NH was domiciled in Iowa when she died, we apply Iowa law to determine if D~ could be eligible for benefits. See 20 C.F.R. § 404.355. The theory of equitable adoption is recognized by Iowa courts. See Estate of Thompson, 760 N.W.2d 208 (Iowa Ct. App. 2008); Program Operations Manual System (POMS) GN 0306.225.

In Iowa, an individual may be considered equitably adopted by a deceased person if he or she proves: (1) an unexecuted agreement or contract to adopt that the deceased entered into and (2) performance of the adoption agreement by the child. See Estate of Thompson, 760 N.W. 2d 208 (Iowa Ct. App. 2008), citing In re Painter’s Estate, 67 N.W.2d 617, 619 (Iowa 1954). The agreement to adopt does not have to be written. See Painter’s Estate, 67 N.W.2d at 619-20 (listing facts that demonstrated that there was an agreement to adopt); POMS GN 00306.175.

The Supreme Court of Iowa has found equitable adoption in a case with facts similar to these. In In re Painter’s Estate, 67 N.W.2d 617 (Iowa 1954),[4] evidence of an agreement to adopt included newspaper articles announcing the availability of the child for adoption, affirmative statements of the decedents indicating that the child was adopted, and the fact that the decedents had changed the child’s first and last name when they brought her home. See id. at 619-20. The court found that this was “extensive” evidence of the existence of an oral agreement, even though the decedents had not complied with the statutes applicable to adoption of children whose parents were deceased and they therefore did not have legal consent to adopt the children. Id. The court noted that the adoption statutes were to be construed liberally to protect the child who was the subject of an intended adoption. See id. at 618-19. It found that the evidence showed “without contradiction” that the child came into the decedents’ home and was “acclaimed by them as their daughter, and was so known and considered in the schools, church, and community.” Id. at 620. These factors “abundantly supported” that an agreement to adopt was made, but never legally consummated. Id.

Here, there is evidence of an agreement between the biological father and the NH for D~’s adoption. B~, the biological father, gave his “full and intelligent consent to the adoption” of his son and relinquished his parental rights. In addition, the fact that B~ has been absent from his son’s life also suggests that he intended to relinquish his parental responsibilities, which is consistent with an agreement to adopt.

Although S~ did not provide a termination and consent to adopt, there is evidence to suggest that she had no intention of regaining custody of her son. She stipulated that “full” custody of her son should be awarded to the NH, physically relinquishing him to the NH without conditions. She has not had any contact with him since that time, nor has she contributed to his support. An Iowa court can terminate parental rights if there is clear and convincing evidence of abandonment or desertion. See Iowa Code Ann. § 232.116.1(b). We believe a court could reasonably find that S~ abandoned D~.

The evidence also indicates that the second element of equitable adoption, performance of the adoption agreement by the child, has been met. In Painter’s Estate, the court relied on the fact that the child lived in the family home and “her demeanor, activities, and relationship with the Painters was that of the average parent and child.” 67 N.W. 2d at 620. She also continued to conduct herself as a biological child when she reached adulthood, caring for her parents when they were ill. See id.

Similarly, D~ appears to have lived as the NH’s child and nothing in the evidence suggests otherwise. He called the NH “mom” and she held herself out to be his mother to the community, his school, and medical providers. It also appears that the community recognized D~ as the NH’s child. In particular, online guest book entries from the funeral home which include several statements directed to D~ or that indicate that he was part of the NH’s family. Furthermore, D~ was referred to as one the NH’s three children in her obituary.

There are also factors that could weigh against equitable adoption. For instance, the NH clearly had the means and ability to seek the assistance of an attorney for the custody action, but there is no evidence that an adoption proceeding was ever initiated aside from the NH’s daughter’s statement that an adoption study was conducted. Moreover, the attorney who was involved with the custody action disclaimed involvement in adoption proceedings. The NH had custody of D~ for almost 16 years and did not take appropriate steps to adopt him during that time. Although she obtained a termination and consent to adopt from B~ in 2004, it was not filed in court until 2011, and there is no evidence that any efforts were taken to consummate an adoption after that. However, we believe that the evidence in support of equitable adoption outweighs this evidence. In addition, Estate of Painter did not dwell on the reasons the decedents in that case failed to legally adopt the child and instead raised her to adulthood without complying with the applicable statutes. Rather, the court noted its desire to carry out the intentions of the parties and to act in the best interest of the child. See 67 N.W.2d at 619-20. It then considered the parties’ actions and found that they led to the conclusion that there was an agreement to adopt and that the child had complied with the agreement. See id. We believe an Iowa court would take the same approach here.


Based on all of the above, we believe that you can find that D~ is an equitably adopted child entitled to surviving child benefits on the NH’s record as long as the other requirements for the receipt of benefits are met. For instance, D~ turned 18 on April XX, 2016. Attainment of age 18 may be a basis to discontinue benefits in some circumstances. See 20 C.F.R. § 404.352.

Kristi A. Schmidt

Chief Counsel, Region VII

By: Julia C. Walker

Assistant Regional Counsel



. See (last visited April 25, 2016).


. See(last visited April 25, 2016).


. It is not clear from the record whether B2~ actually represented the NH in the custody action or just served as a notary.


. Although Estate of Painter is an older case, it remains the law in Iowa. See Estate of Thompson, 760 N.W. 2d 208 (Iowa Ct. App. 2008).

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PR 01510.018 - Iowa - 11/02/2016
Batch run: 11/03/2016