TN 2 (03-17)
PR 01605.006 California
A. PR 17-044 Entitlement to Stepchild Survivor’s Insurance Benefits under California Law
Date: February 9, 2017
Here, the number holder (NH) and the Claimant’s father were domiciled in California and the divorce proceedings at issue took place in a California court. Accordingly, we apply the California law in determining when the divorce became final. Pursuant to California Family Code section 310, a marriage is dissolved by the death of one of the parties, a judgment of dissolution of marriage, or a judgment of nullity of marriage. Where a party dies after the entry of a dissolution judgment, the death does not prevent the judgment from becoming final. In this case, the NH died after the court entered a judgment of dissolution of the marriage between the NH and Claimant’s father in February 2012, but before the judgment became final in June 2012. The NH’s marriage to the Claimant’s father ended due to their divorce, not the NH’s death, therefore, the Claimant is not entitled to stepchild survivor’s insurance benefits on the NH’s account because the marriage between the NH and Claimant’s father terminated due to their divorce.
You asked whether the marriage between A~ (NH) and the father of A2~ (Claimant) terminated by death or divorce for purposes of determining whether Claimant is entitled to stepchild survivor’s insurance benefits on the NH’s account.
Claimant is not entitled to stepchild survivor’s insurance benefits on the NH’s account because the marriage between the NH and Claimant’s father terminated due to their divorce, not the NH’s death.
SUMMARY OF EVIDENCE
Claimant was born on April XX, 2002 in California. The NH married Claimant’s father on March XX, 2011. Claimant’s father filed for uncontested dissolution of marriage in California state court on December XX, 2011. The court subsequently entered a judgment of dissolution on February XX, 2012, ordering that the marriage between the NH and Claimant’s father terminate on June XX, 2012.
On June XX, 2012, the NH passed away in California, six days before the date on which the judgment specified that the divorce would become final. Claimant filed her application for stepchild survivor’s insurance benefits on August XX, 2012. Claimant is currently receiving survivor’s benefits on the NH’s account.
An eligible stepchild is entitled to child’s insurance benefits under the Social Security Act (Act). Social Security Act § 202(d)(1) (every unmarried minor child of an insured individual is entitled to child’s insurance benefits) & (e)(1) (defining “child” to include “a stepchild”); see also 20 C.F.R. § 404.354 (explaining that the definition of “child” includes “natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child”). A stepchild is not entitled to benefits on the account of a former stepparent divorced from the child’s parent. Program Operations Manual Support (POMS) GN 00306.230.A.3.b.; see also 20 C.F.R. § 404.357 (“The marriage between the insured and your parent must be a valid marriage under State law”). More specifically, the stepchild’s entitlement to benefits terminates the month after the month in which the divorce becomes final, i.e., the month of the divorce is the stepchild’s last month of entitlement. Id. However, the “[d]eath of a spouse does not end the parent-stepchild relationship.” POMS GN 00306.230.A.3.a.
The Act provides that State law controls the determination of marital relationships. Social Security Act §§ 216(h)(1)(A)(i), 1614(d); 20 C.F.R. § 404.357; POMS GN 00305.120.B (agency applies State law to determine whether a divorce is final). Here, the NH and Claimant’s father were domiciled in California and the divorce proceedings at issue took place in a California court. Accordingly, we apply California law in determining when the divorce became final.
Pursuant to California Family Code section 310, a marriage is dissolved by the death of one of the parties, a judgment of dissolution of marriage, or a judgment of nullity of marriage. Cal. Fam. Code § 310(a)-(c); see also Cal. Fam. Code § 2300 (“The effect of a judgment of dissolution of marriage when it becomes final is to restore the parties to the state of unmarried persons.”). As a general rule, where a party dies before a marriage is dissolved, the death ends the marriage; if a dissolution action is pending but no judgment has been entered, the party’s death abates (i.e. ends) the dissolution action. See In re Marriage of Hilke, 4 Cal. 4th 215, 220 (1992); Frederick v. Superior Court, 223 Cal. App. 4th 988, 993 (2014).
However, where a party dies after the entry of a dissolution judgment, the death does not prevent the judgment from becoming final. See Cal. Fam. Code § 2344(a). Section 2344(a) of the California Family Code specifically provides that “[t]he death of either party after entry of the judgment does not prevent the judgment from becoming a final judgment . . . .”. This section is included in Family Code Part 3, titled “Dissolution of Marriage and Legal Separation,” showing that it was intended to apply to dissolution judgments. See Cal. Fam. Code, Div. 6, Pt. 3. The legislative history of section 2344 indicates that it was enacted “to recognize that the judgment is entered and becomes final when the time runs, without further action by the court.” Cal. Fam. Code § 2344, Law Rev. Cmts. Additionally, courts have construed section 2344(a) to find that a party’s death does not prevent a dissolution judgment from becoming final. See In re Marriage of Lean & Stewart, No. A124777, 2012 WL 243095, at *4 (Cal. Ct. App. Jan. 26, 2012) (unpublished) (holding that a party’s death after entry of a dissolution judgment (but before the judgment was final) did not immediately terminate the marriage or prevent the judgment from becoming final); see also In re Marriage of Mallory, 55 Cal. App. 4th 1165, 1173-74 (1997) (the death of a party did not deprive the court of jurisdiction to enter a judgment dissolving the parties’ marriage).
Here, the NH died after the court entered a judgment of dissolution of the marriage between the NH and Claimant’s father on February XX, 2012, but before the judgment became final on June XX, 2012. Nonetheless, pursuant to California Family Code section 2433(a), the NH’s death after the entry of judgment did not prevent the judgment from becoming final.
Under California law, the marriage between the NH and Claimant’s father terminated with the court’s February XX, 2012 entry of a judgment of dissolution that became final on June XX, 2012. Accordingly, the NH’s marriage to the Claimant’s father ended due to their divorce, not the NH’s death. Because a stepchild is not entitled to benefits on the account of a former stepparent divorced from the child’s parent, Claimant is not entitled to child’s insurance benefits on the NH’s account.
B. PR 01-193 Claim for Child's Insurance Benefits (Auxiliary) on Account of Wage Earner Ernest M. L~, SSN: ~
DATE: August 30, 2001
The child claimant is not the NH's stepchild under section 404.357 of Social Security Regulations because she was conceived and born during the legal marriage of the NH and her mother. However, since Acquiescence Ruling 86-12(9), based on Hutcheson v. Califano, applies in the Ninth Circuit, California law must be applied to determine whether the child is considered a stepchild. Under California law, there is no requirement that the marriage have occurred after the birth of the stepchild. Therefore, the NH would be considered the child's stepparent under California law.
You asked whether Janice E~ can qualify for child's insurance benefits as either the "child" or the "stepchild" of the wage earner, Ernest L~, under California law.
Yes. Based on our interpretation of California law, Janice is the wage earner's stepchild, and thus, is entitled to child's insurance benefits on his account.
However, Janice would probably not be considered the "natural child" of the wage earner under California intestacy law.
SUMMARY OF EVIDENCE
The wage earner and Janice's mother have been living together as husband and wife since 1979. They formally married in September 1983. However, they separated and stopped living together in 1985.
During the separation, Janice's mother had a relationship with John E~. On June XX, 1986, Janice was born, and John E~ was named as her father on the birth certificate. Both the wage earner and Janice's mother state that John E~ is Janice's biological father. When John E~ applied for disability benefits in 1993, he stated that he had a six-year-old daughter with Janice's mother. He also claimed that he had a "common law" marriage with Janice's mother from 1987 to 1990. However, his application was denied, so neither he nor any potential dependents received benefits on his account.
In 1989, Janice's mother and the wage earner reunited and have lived with Janice ever since as a family unit. The wage earner has always treated Janice as his stepdaughter. At some point, the wage earner and Janice's mother obtained a court order prohibiting John E~ from contacting Janice and her mother. (The reason for such actions is not explained).
In March 2000, the wage earner applied for retirement insurance benefits. He became entitled as of June 2000. He also applied for child's insurance benefits for Janice, now 14. Janice's mother applied for wife's insurance benefits, to which she is entitled only if Janice qualifies for child's benefits.
A. Stepparent-Stepchild Relationship
The Social Security Act provides child's insurance benefits to the dependent stepchildren of wage earners entitled to disability or retirement benefits. 42 U.S.C. §§ 402(d) and 416(e).
Under Social Security regulations, a child is considered the wage earner's stepchild if her natural parent married the wage earner after her birth. A child may also be a stepchild if she was conceived prior to the marriage of her natural parent to the wage earner but was born after the marriage and the wage earner is not the child's natural parent. 20 C.F.R. § 404.357 (2001). As you correctly stated, Janice is not the wage earner's stepchild under Section 404.357 because Janice was conceived and born during the legal marriage of the wage earner and Janice's mother. See B.B. v. Schweiker, 643 F.2d 1069 (5th Cir. 1981).
However, in the Ninth Circuit, Social Security adjudicators apply applicable state law, rather than Social Security regulations, to determine whether a child is considered a "stepchild." Acquiescence Ruling ("AR") 86-12(9), based on Hutcheson v. Califano, 638 F.2d 96 (9th Cir. 1981). The adjudicator applies the law of the wage earner's domicile at the time the application is filed.
Here, the wage earner was domiciled in California when he applied for retirement benefits in March 2000. Thus, the Social Security Administration must apply California's definitions of stepchild.
According to California case law, "a person becomes a stepparent by marrying the natural biological parent." Clifford S. v. Superior Court, 38 Cal.App.4th 747, 752 (4th Dist. 1995). Another California case defined the stepchild and stepparent relationship merely as arising out of the stepparent's marriage to the natural parent. In re Jodi B., 227 Cal.App.3d 1322, 1328-1329 (6th Dist. 1991). There is no requirement that the marriage have occurred after the birth of the stepchild.
Furthermore, a California regulation implementing California's Medicaid program under Title 19 of the Social Security Act specifically defines stepparent as "a person who is married to the parent of a child and who is not the other parent of the child." 22 C.C.R. § 50094 (2001).
Thus, the wage earner would most likely be considered Janice's stepparent under California law. You indicated that the evidence shows Janice is living with the wage earner as his stepchild and receiving support from him. Thus, the dependency requirements of 20 C.F.R. §§ 404.360 and 404.366 (2001) are satisfied.
B. Natural Parent-Child Relationship
A claimant can also qualify for child's insurance benefits under the Social Security Act if she can establish a right to intestate succession from the wage earner under applicable state law. 42 U.S.C. § 416(h)(2)(A).
Under California Probate Code Section 6453(a), a natural parent-child relationship is established for purposes of intestate succession where that relationship is presumed and not rebutted under the Uniform Parentage Act (UPA). According to the UPA, a man is the presumed father of a child when the child is born during his marriage to the mother. Cal. Fam. Code § 7611(a). This presumption is rebuttable and can be rebutted in "an appropriate action only by clear and convincing evidence." Cal. Fam. Code § 7612.
Here, the wage earner is Janice's presumed father because she was born while her mother and the wage earner were legally married (even though they were living apart). However, that presumption would probably be considered rebutted in this case. Both Janice's mother and the wage earner readily admit the Janice is not the wage earner's biological father, and Janice's mother evidently allowed Mr. E~'s name to be placed on Janice's birth certificate. Cal. Fam. Code § 7612; Nicholas H. v. Kimberly H., 91 Cal. App.4th 86 (1st Dist. 2001); Ethan S. v. Headrick, 221 Cal.App.3d 1403, 1416-1417 (1st Dist. 1990).
Furthermore, if Mr. E~'s claim that he lived with Janice's mother and Janice following her birth are true, he may also qualify as a presumed father because he openly held out Janice as his own child after she was born. Cal. Fam. Code § 7611(d). As a presumed father, Mr. E~ would be able to bring an action under the UPA to establish his biological paternity. Brian C. v. Ginger K., 77 Cal. App.4th 1198, 1220-1221 (4th Dist. 2000) (man who lived with married woman and openly held out their child as his own had standing as a presumed father to bring action to declare his paternity even though woman subsequently returned to her husband and the husband was also a presumed father). Thus, Janice would probably not be able to inherit intestate from the wage earner as his natural child under California law.
Janice is entitled to child's insurance benefits (auxiliary) as a stepchild based on the wage earner's account.
C. PR 91-007 Samuel S. S~, Child's Benefits - Stepchild/Equitably Adopted Child
DATE: April 12, 1991
A child who is legally adopted by the NH's wife after she marries the NH is not the stepchild of the NH under California law, which is controlling under Acquiescence Ruling 86-12(9) (Hutcheson v. Califano). Further development is needed to determine if the NH equitably adopted the child; for example: evidence that he explicitly agreed to adopt her, a written record of any agreement, statements of witnesses to any oral agreement, information about the date of the alleged contract, a medical opinion about the NH's mental capacity at the time any contract was made, and information as to whether the child was entitled to share in the NH's estate through probate proceedings. (S~, Samuel S., ~, RAIX(M~) to ARC 04/12/91)
An application for surviving child's insurance benefits has been filed for Elizabeth S~ on the account. of Samuel S. S~. Samuel became eligible for retirement insurance benefits in December 1966. Elizabeth was born in December 1980. Evelyn S~ took custody of Elizabeth in August 1984. Evelyn began adoption proceedings in 1985. Evelyn and Samuel were married in June 1988, before Elizabeth's adoption was finalized. Evelyn has stated that Samuel first expressed an interest in joining in the adoption in November 1988; he did not do so, however (allegedly because this would have further delayed the proceedings). Elizabeth finally was adopted by Evelyn alone in December 1988. Samuel, a domiciliary of California, died in November 1989. You asked whether Elizabeth could qualify for child's insurance benefits either as Samuel's stepchild or as his equitably adopted child.
"When a case [in Region IX] involves the issue of whether or not a person is a stepchild of an insured individual for purposes of Section 202(d) (1) of the Social Security Act, 42 U.S.C. § 402(d)(1), the definition of 'stepchild' as provided by State law rather than the Social Security regulation . . . [is] controlling .... " Hutcheson v. Califano, AR 86-12(9) (April 8, 1986). We have previously advised that "the California courts have, to date, made no allowance for the establishment of a steprelationship through adoption regardless of whether the adoption occurred before or during the adopting parent's marriage to his/her non-adopting spouse." GC opinion re Definition of Stepchild under California Law, November 17, 1986. There have been no recent developments to cause us to revise this advice. See, e.g., In Re Estate of C~, 209 Cal.App.3d 254, 258, 257 Cal.Rptr. 197, 199 (1989) (noting that according to the "dictionary meaning," "the stepchild/stepparent relationship . . arises upon the natural parent's remarriage").
Accordingly, Elizabeth cannot be considered Samuel's stepchild.
The question of equitable adoption, also governed by California law, is more complicated.
The essential requirements for an equitable adoption under California law are: (a) an express or implied contract of adoption, and (b) absolute surrender of the child to the adopting parents.
The adoption contract may be written, oral, or implied from the conduct of the parties and the surrounding circumstances, but its. existence must be established by clear, convincing, and unequivocal evidence, enabling a court to enforce specific performance .... In addition, where the contract can only be implied, the conduct must be referable only to contract to adopt and must not be open to any other reasonable interpretation ....
GC opinion re Theodore J~ , August 21, 1985 (citations omitted).
In this case there is no clear evidence establishing that Samuel was party to an adoption contract. The file contains three relevant statements. By letter dated January 10, 1990, Samuel's attorney, Wallace R. V~, advised that Samuel "indicated that he wished to adopt Elizabeth S~ as soon as her original adoption proceedings were finalized," but that he "took ill prior to fulfilling this request, and subsequently died before we could proceed with the adoption." In an undated response to an inquiry from SSA, Evelyn indicated that in November 1988 Samuel "asked to have his name included in the adoption" and "discussed" this with the adoption social worker who advised him to wait until the adoption was finalized. In a letter dated December 1, 1990, the social worker, Naomi B~, recalled that Evelyn had informed her of Samuel's interest in joining in the adoption proceedings. Ms. B~ made no mention of any direct discussions with Samuel or of any adoption agreement. Moreover, Ms. B~ indicated that she was no longer employed by the adoption agency at the time of her conversation with Evelyn. Read together, these statements suggest that although Samuel expressed an interest in adopting Elizabeth, he never made a binding, enforceable commitment to do so either to Elizabeth herself or to any interested third party (e.g., the adoption agency or Evelyn). Nor is there evidence showing that he took any concrete action referable only to an agreement to adopt, from which the existence of such a contract might be implied. Id.
While the documentation currently in the file does' not support a finding of equitable adoption, you may wish to investigate the case further. If you do so, you should clarify whether Samuel ever explicitly agreed to adopt Elizabeth, as distinguished from expressing an interest in doing so at some point in the future and, if so, whether there is any written record of the agreement (a letter, memorandum, etc). If Evelyn contends that the commitment was made orally, she should be asked to identify the parties to the agreement and any witnesses thereto. Statements should be obtained from all such witnesses.
All individuals from whom statements are sought should be asked to be specific about the date of the alleged contract. The timing of the agreement is of particular interest in this case, because Samuel's death certificate indicates that he may have been mentally incapacitated during some period prior to his death. For this reason, if Evelyn provides otherwise convincing evidence of an agreement (whether written or oral), we recommend that you obtain a statement from Samuel's physician addressing the question of whether Samuel retained the capacity to understand the significance of an adoption contract through the date the contract allegedly was made. If he was incapable of comprehending the transaction, any such contract would be void. See 1 W~, Contracts §358(a) (9th ed. 1987).
Finally, you should ask Evelyn to state whether or not it has been established through probate proceedings that Elizabeth is entitled to share in Samuel's estate as his equitably adopted child. If so, such a determination (while not binding upon SSA) will help to confirm the existence of an equitable adoption; if not, Evelyn should be asked to explain why Elizabeth did not share in the estate.
. For the purposes of this opinion, we assume Claimant was the NH’s stepchild prior to the NH’s death. See POMS GN 00306.230.A.1.
. In 1992, the California legislature enacted Family Code section 2344 to replace Civil Code section 4514(d), which stated, in pertinent part: “The death of either party after the entry of the judgment does not impair the power of the court to enter final judgment . . . .” Cal. Civ. Code § 4514(d); see Cal. Fam. Code § 2344, Law Rev. Cmts.; Stats. 1992, c. 162 (A.B. 2650), § 10, operative Jan. 1, 1994. Notably, unlike its predecessor statute, Family Code section 2344 states that no further action by a court is required for a dissolution judgment to become final. Cal. Fam. Code § 2344(a).
. Ms. B~, therefore, lacked either actual or apparent authority to contract with Samuel on behalf of the adoption agency.
. If you are unable to obtain an assessment from Samuel's treating physician, statements should be sought from his attorney and other business associates, relatives, and friends with whom, Samuel had contact at the time of the alleged agreement.