This is in response to your inquiry concerning the status of Leonard A. G~ as an equitably
adopted child of the deceased wage earner (DWE) Leon G~.
Leonard A. G~ (a.k.a. Tony) was born on December 3, 1979 in Minnesota, to Patrick
M~ and Sally A. F~. Ms. F~ intended to give up Tony for adoption. When Ms. F~ was
six months pregnant, she and Patrick M~ orally agreed with Patrick M~ 's step-mother,
Patricia G~, and her husband, Leon G~ (the DWE), that the G~ would adopt the child
when it was born. At that time, all the parties lived in Minnesota. When the child
was born, Ms. F~ contacted the G~ from the hospital. The G~, who had since moved to
Michigan, went to the hospital in Minnesota, where they reiterated their oral agreement
with Ms. F~ to adopt Tony. The hospital listed Patricia and Leon G~ as the parents
on the hospital certificate of birth. The G~ then returned to their domicile in Michigan,
taking the child with them.
The G~ started adoption proceedings, but could not afford to complete the process.
However, they altered Tony's birth certificate to include the name "G~," and Leon
G~ listed him as a dependent child on his tax returns. Tony does not know that he
Patrick M~, Tony's natural father, stated in 1996 that he had surrendered total custody
of Tony to Leon and Patricia G~, and that he assumed that Tony had been adopted. Sally
F~ did not respond to SSA's attempts to contact her, and the last time that she had
contact with Patricia G~ was in 1992, although she knew the G~' other children who
remained in Minnesota and knew the G~' address.
The G~ subsequently moved to Ohio, where Leon G~ died on April 1996. On August 5,
1996, in Ohio, Patricia G~ filed an application for child's benefits on Tony's behalf.
You ask whether the state of Ohio will recognize an oral agreement to adopt entered
into in Minnesota.
A. The Adoption Of Tony G~
ust show that he is the child of the DWE. 42 U.S.C. § 416(e) defines a "child" as
the child, legally adopted child, and in certain circumstances, stepchild, grandchild
or stepgrandchild with no surviving natural parents. In cases in which the statutory
requirements of adoption have not been met, a child who has been the subject of a
contract to adopt and has performed as a child, may be eligible for benefits as an
equitably adopted child. See POMS GN 00306.175.
The Social Security Act further provides that in determining whether an applicant
is the "child" of a DWE, the Commissioner:
"shall apply such law as would be applied in determining the devolution of intestate
personal property by the courts of the State in which . . . [the DWE] was domiciled
at the time of his death. . . .Applicants who according to such law would have the
same status relative to taking intestate personal property as a child or parent shall
be deemed such." 42 U.S.C. § 416(h) (2) (A).
Since Tony G~ was not legally adopted by the DWE, the question we must address is
whether the laws of intestacy of the State of Ohio, the DWE's domicile at his death,
would permit Tony G~ to take personal property as a child.
Ohio law provides that adopted children inherit as natural born children. Ohio Rev.
Code Ann. § 3107.15(A) (2). Moreover, Ohio follows the general rule that whether a
child has acquired the status of an adopted child, so as to allow him to inherit property
in a state other than that of his adoption, will be determined by the law of the state
creating the adoption, though that law is dissimilar to that of the situs of the property.
"This rule has been applied even where there are radical differences in form and procedure
by which the adoption proceedings are conducted in the different states." Barrett v. Delmore, 54 N.E.2d 789 (Ohio 1944), (citing 1 Am. Jur. 668, § 67).
Whether Tony G~ can be considered an adopted child will be determined by the law of
Minnesota, the state of his adoption. If Tony G~ can be deemed an adopted child of
the DWE in Minnesota, he would be considered an adopted child in Ohio, and under the
Ohio intestacy statue, could inherit from the DWE as a child.
Thus, we turn to the laws of Minnesota to consider whether Tony G~ could be deemed
an adopted child of the DWE in that state. In Minnesota, an oral agreement to adopt
will, when executed, give rise to the same obligations as would ensue from a full
compliance with the adoption statute. In re F~'s Estate, 265 N.W. 818 (Minn. 1936); Ondenbreit v. Utheim, 154 N.W. 741 (Minn 1915). Such a contract will be enforced when the oral agreement is established by clear
and convincing evidence, and is at least partly performed. In re F~, 265 N.W. at 819.
We believe that the evidence in the claim would satisfy this test. The statement of
Patrick M~, the natural father, independently corroborates Patricia G~'s statement
that there was an oral agreement to adopt the child and that the G~ took Tony home
from the hospital. Moreover, Mr. M~ stated that he had given up custody of Tony with
the understanding that the G~ would adopt him, and that he in fact thought that the
legal adoption had gone through. The hospital listed the G~'s name as parents on the
hospital birth certificate, and the G~ altered the official birth certificate to include
their name. This evidence supports the existence of an agreement to adopt. See also POMS GN 00306.180C
The evidence also shows that the agreement was at least partially performed. The G~
did initiate legal adoption proceedings. They listed the child as their son on their
income tax return. Moreover, Mr. M~ and two other sources verify that the DWE treated
the child as his own. The G~ publicly held him out as their son and the child does
not know that he is adopted. Therefore, we believe that in Minnesota, Tony G~ would
be deemed an equitably adopted child of Leon G~.
You raised the question of whether the natural mother, Ms. F~, had properly consented
to the adoption. We do not believe that the issue of consent is a problem in this
case. According to Patricia G~ and Patrick M~, Ms. F~ planned to put the child up
for adoption in any case, and she twice orally agreed to give the child for adoption
to the G~ (once when she was six month pregnant, and again at the hospital following
the birth). She then gave up the child to the G~. Minnesota requires that parental
consent to a legal adoption be in writing. Minn. Stat. 259.24(5). However, it is doubtful
that such a requirement would be imposed in the case of an oral agreement to adopt,
and we have been unable to find a case in Minnesota in which an equitable adoption
was denied based on the lack of written consent of one parent.
Furthermore, Minnesota state law provides that consent shall not be required of a
parent who has abandoned the child. Minn. Star. § 259.24(1) (b). In the unlikely event
that Ms. F~'s oral consent in her agreement with the G~, coupled with her total surrender
of the child at birth were not sufficient to establish her consent, she can. certainly
be said to have abandoned the child, in which case her consent would no longer be
The standard for abandonment requires "desertion accompanied by an intention to entirely
forsake the child. There must be an intention to sever the parental relation and wholly
throw off all obligations that spring from it." In the Matter of the Petition of M.G. and J.G. to adopt H.A.B., 375 N.W.2d 588 (Minn. Ct. App. 1985); see also Statt v. Hennepin County Welfare Board, 178 N.W.2d 709 (Minn. 1970). Ms. F~ gave the child to the G~ at birth and has not
established a relationship with him, although she has been aware of his whereabouts.
She has never supported him, and has had no contact with the G~ or Tony in at least
four years. Furthermore, she has failed to respond to any of multiple attempts by
SSA to contact her on this issue. These facts demonstrate "an intention to sever the
Moreover, at least one Minnesota court allowed an equitable adoption where evidence
of the father's consent to the adoption was "slight," noting that the father's rights,
"whatever they may have been in the premises, would not be impaired by permitting
the "adopted" child to succeed to the estate of the "adopting" parent." Fiske v. Lawton, 144 N.W. 455 (Minn 1913). Similarly in this case, Ms. F~'s parental rights, if any,
would not be impaired by permitting Tony G~ to draw child's benefits on the account
of his "adoptive" father, Leon G~.
It appears that under Minnesota law, Tony G~ can be deemed an equitably adopted child
of Leon G~. Accordingly, since Minnesota law would consider Tony G~ an adopted child,
Ohio would also consider him an adopted child and, under Ohio's intestacy statute,
would allow him to inherit from Leon G~. For the foregoing reasons, we believe that
Tony should be considered an equitably adopted child of the DWE.
B. POMS: Oral Agreements and Equitable Adoptions In Ohio
We note that your query letter mentions that according to POMS GN 00306.225B, Ohio recognizes oral agreements to adopt. In the course of our research, we have
found this POMS to be incorrect. Ohio state law does not recognize oral agreements
to adopt. See Seymour v. Stotski, 611 N.E.2d 454 (Ohio Ct. App. 1992) (refusing to recognize status as adoptive parent
merely through oral agreement).
This POMS also states that Ohio will recognize equitable adoptions. Although this
is correct in certain very limited instances, Ohio courts have not extended the doctrine
of equitable adoption to allow an equitably adopted child to inherit under the intestacy
statutes. See York v. Nunlet, 610 N.E.2d 576 (Ohio Ct. App. 1992) ("we decline to expand to the law of inheritance
the very limited and narrow application of the doctrine of equitable adoption," refusing
to allow two equitably adopted sisters from inheriting from their intestate adoptive
parent.)  Accordingly, since it is questionable whether a child which had been equitably adopted
in Ohio, (as opposed to one adopted in a state that clearly applies the doctrine of
equitable adoption, such as Minnesota), could inherit through intestate devolution,
such a claimant might not qualify as a "child," for Social Security purposes under
42 U.S.C. § 416(h) (2) (A).
Accordingly, we suggest that you may want to review the accuracy of the applicable