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 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 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 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
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), 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
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