TN 1 (02-06)

PR 07205.039 Ohio

A. PR 04-174 Support of Beneficiary's Legal Child - Ohio - Esther M. Z~, A/N ~

DATE: January 11, 1991

1. SYLLABUS

Statutes in the State of Ohio demonstrate an intent to treat children as dependent beyond age 18 and at least until age 22, as long as such children are attending school full time.

2. OPINION

This is in response to your recent memorandum inquiring whether a child of a beneficiary is considered legally dependent under Ohio law so that she can receive a portion of her mother's social security benefits to meet her ordinary and necessary living expenses.

The relevant facts are as follows. Susan A. Z~, the daughter of the wage earner, was born on June 20, 1971. Susan lives in the wage earner's home and attends nursing school full-time. She earns $129 per week through a work-study program.

Esther Z~, the wage earner, is presently institutionalized in a nursing home, which serves as her representative payee. Susan's father died many years ago. A portion of Esther's monthly social security benefits is used for her personal needs and the remainder is conserved for her. Esther's assets are the home (in which Susan lives) and a checking account with a balance as of April of 1989 of $889.25. Susan was previously receiving a maintenance need allowance of $139 per month from the Ohio Department of Welfare, but this allowance has been discontinued because of an Ohio Department of Welfare rule that a child living alone is not eligible to receive such an allowance.

The question presented is whether Susan qualifies as Esther's dependent child. If so, Susan may use the unused portion of Esther's benefits for her maintenance and allowance.

According to POMS GN 00602.020, which is based upon 20 C.F.R. § 404.2040(c), "if the current maintenance needs of the beneficiary are met, the payee may use part of the benefits for the support of the beneficiary's legally dependent . . . child. . . ." Under this same POMS provision, legal dependency is determined by state law, in this case Ohio law. It appears from the facts provided that the beneficiary's current maintenance needs are being met. Thus, if Susan qualifies as the legally dependent child of Esther under Ohio law, then a portion of Esther's monthly benefits may be used for Susan's support. Cf. Casimir Sacko, SSN~, RA V (Feldman) to ARC Programs SSA V (Parker), 4/21/87.

Generally, in Ohio there is no parental duty to support a child beyond the age of majority. See Thiessen v. Moore, 105 Ohio St. 401, 137 N.E. 906 (1922); see also Ohio Rev. Code Ann. §§ 2111.08 (Baldwin 1988), 2919.21, and 3103.03 (Baldwin 1989). The age of majority in Ohio is 18. Ohio Rev. Code Ann. § 3109.01 (Baldwin 1989). Susan Z~ reached the age of majority when she turned eighteen in June 1989. Accordingly, it initially appears that Esther is under no obligation to support Susan.

However, dependency is not always based upon a legal obligation to support. Becker v. Industrial Commission of Ohio, 137 Ohio St. 139, 28 N.E.2d 361, 364 (1940); Wheeling Steel Corp. v. Morates, 202 N.E.2d 317, 318-19 (1963). Indeed, a legal obligation to support "is not even greatly helpful . . . in establishing dependency." Wheeling Steel, supra, at 318-19. Instead, dependency is "determined in accordance with the facts in each particular case." Becker, supra, at 364.

Certain Ohio statutes demonstrate how the legislature has construed the definitional parameters of dependency in specific contexts. For example, three parallel statutes dealing with survivor's benefits for various state employees discuss who may qualify as dependents of such employees. Ohio Rev. Code Ann. §§ 145.45 (state government employees), 3307.49 (state teachers), and 3309.45 (public school employees) (Baldwin 1989). Each of these statutes contains a provision which states that a [d]ependent child shall be any unmarried child of the deceased member under age eighteen, or under age twenty-two if the child is attending an institution of learning or training pursuant to a program designed to complete in each school year the equivalent of at least two-thirds of the full-time curriculum requirements of such institution. . . . If not domiciled in the deceased member's household at time of death, to qualify as a dependent child the deceased member must have contributed to one-half or more of the child's support during the twelve-month period prior to death. . . .

See, e.g., Ohio Rev. Code Ann. § 145.45(B)(2)(b). Even though Susan is already over 18, under these criteria she qualifies as Esther's dependent child, since she is unmarried, lives in her mother's home, and is attending nursing school full-time.

The Ohio worker's compensation statute, Ohio Rev. Code Ann. § 4123.59 (Baldwin 1989), also tends to confirm that Susan is Esther's dependent child. T