PR 05005.025 Michigan

A. PR 05-239 Wage Earner: Gary D. C~, ~Potential Surviving Divorced Spouse Seeking Benefits - Georgia

DATE: September 13, 2005

1. SYLLABUS

Although W/E died while domiciled in Georgia, we first look to Michigan law to determine the effects of W/E's adoption of the claimant, because the adoption took place in Michigan, and an adoption legally decreed in another State would be recognized in Georgia. The adoption of the claimant by the W/E and the W/E's second wife establishes a parent-child relationship. A prior spousal relationship would not be severed by adoption.

2. OPINION

QUESTION

Can Sharon J. C~ (Claimant) be considered a surviving divorced spouse of Gary D. C~, (W/E) since she was later adopted by W/E.

ANSWER

For the reasons stated below, we believe Claimant can qualify as W/E's surviving divorced spouse under Georgia law.

BACKGROUND

On June 5, 1965, Claimant and W/E were married in Marquette County, Michigan. They divorced in July 1980. Subsequently, W/E remarried in November 1983 to Malinda J. C~ (W/E's second wife). Claimant gave birth in April 1985. Claimant was then unmarried and never remarried. On November 19, 1985, W/E and his second wife adopted Claimant and her new infant. W/E died a resident of Georgia in February 1996.

DISCUSSION

Under the Social Security Act (Act), a "surviving divorced wife" may be entitled to widow's insurance benefits. See Act § 202(e), 42 U.S.C. § 402(e) (2005); 20 C.F.R. § 404.336 (2005). The Act defines a "surviving divorced wife" as a woman divorced from the individual who has died if she had been married to the individual for a period of 10 years immediately prior to the date of their divorce. See Act § 216(d)(2), 42 U.S.C. § 416(d)(2) (2005); 20 C.F.R. § 404.336 (2005).

In this case, Claimant's marriage to W/E meets the 10 year durational requirement. As such, Claimant is a "surviving divorced spouse." The troubling aspect of this case is the subsequent adoption of Claimant by W/E.

Although W/E died while domiciled in Georgia, we must first look to Michigan law to determine the effects of W/E's adoption of Claimant, because the adoption took place in Michigan, and an adoption legally decreed in another state would be recognized in Georgia. See Ga. Code Ann. § 19-8-22 (2005). In Michigan, the entire subject of adoption is governed entirely by statute. According to Michigan law, an adult may be adopted by another individual. See Mich. Comp. Laws §§ 710.22, 710.24, 710.43, 710.60 (2005). Once an adoption occurs, the legal relationship between the natural parent and child is severed. See Mich. Comp. Laws § 710.60. The adoption established new parent-child relationships between Claimant and W/E and Claimant and W/E's second wife. See Mich. Comp. Law. § 710.60. There, however, is no indication that a prior spousal relationship would be severed by the adoption.

Georgia would, therefore, recognize W/E's adoption of Claimant. In recognizing decrees of adoption, Georgia law specifically states that all legal relationships between the adopted individual and his/her relatives are terminated. See Ga. Code Ann. § 19-8-19. However, spousal relationships are specifically excluded from the effects of adoption. See id. Because the spousal relationship is not terminated by adoption, we believe Claimant would still be recognized as the divorced spouse of W/E.

CONCLUSION

For the foregoing reasons, we believe Claimant qualifies as the surviving divorced spouse of W/E.

Mary Ann S~
Regional Chief Counsel

By:
Jennifer P~
Assistant Regional Counsel


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PR 05005.025 - Michigan - 12/21/2010
Batch run: 12/21/2010
Rev:12/21/2010