You inquired what requirements a parent must meet to qualify as a legal dependent
in the State of Wisconsin. You requested this opinion in order to determine whether
a representative payee was properly using recipient's benefits under 20 C.F.R. § 404.2040(c).
The general issue is whether a representative payee may use a child's conserved benefits
to support the child's parent. The applicable regulations provide that "[i]f the current
maintenance needs of the beneficiary are being met, the payee may use part of the
payments for the support of the beneficiary's legally dependent spouse, child, and/or
parent." 20 C.F.R. § 404.2040(c). POMS GN 00602.020(B) provides that dependency is to be determined according to state law. Therefore,
it is necessary to look at Wisconsin law in order to determine whether the conserved
benefits of Lynn W., the representative payee, were being used properly.
Wisconsin law defines the term "dependent" differently depending on the context of
the particular statute. For example, the definition of "dependent" used in the context
of a Veterans' Affairs statute is "any person who resides with a veteran and is dependent
upon the veteran for more than one-half of the person's support," but the definition
of "dependent" in the context of Executions is "any individual, including a spouse,
who requires and is actually receiving substantial support and maintenance from the
debtor." Wisc. Stat. Ann. §§ 45.71(5)(b), 815.18(2)(d) (1997). We believe the most
appropriate statutory reference concerns whether a child has an obligation to support
his or her parent in Wisconsin in order to determine whether parents were considered
dependents in the context of Wisconsin's general welfare statutes.
The Wisconsin Supreme Court has held that unless there is a common law duty to support
a relative, legal dependency arises solely out of statutory provisions. In re Seely, 67 N.W.2d 836, 837 (1955). It is generally agreed that there is no common law duty
on a child to support his or her indigent parent. See 79 Am. Jur. § 76 (1975). Prior to 1985, however, Wisconsin law provided that:
The parent, spouse and child of any dependent person (as defined in s. 49.01) who
is unable to maintain himself shall maintain such dependent person, so far as able,
in a manner approved by the authorities having charge of the dependent, or by the
board in charge of the institution where such dependent person is . . .
Wisc. Stat. Ann. 52.01(1) (footnote added). The Wisconsin Supreme Court held that
this provision was ineffective to confer a duty to support until a court had ordered
a party to support his relative pursuant to Wisc. Stat. Ann. § 52.01(4). Seely, 67 N.W.2d at 838. Therefore, under that statutory language, a child had no obligation
to support a dependent parent until after a court had ordered him or her to do so.
In 1985, Wisc. Stat. Ann. § 52.01 was amended and renumbered Wisc. Stat. Ann. § 49.90.
See Wisc. Stat. Ann. § 52.01 (1997). Wisc. Stat. Ann. § 49.90 provides that:
The parent and spouse of any dependent person who is unable to maintain himself or
herself shall maintain such dependent person, so far as able, in a manner approved
by the authorities having charge of the dependent, or by the board in charge of the
institution where such dependent person is; but no parent shall be required to support
a child 18 years of age or older.
Wisc. Stat. Ann. § 49.90(1)(a) (1997). By amending the statute in 1985, the Wisconsin
legislature therefore eliminated any obligation of a child to support a dependent
A child no longer has any obligation to support his parent under Wisconsin law, and
a duty to support a parent can arise only from statutory provisions. Children, therefore,
are no longer obligated to support their dependent parents in Wisconsin. Therefore,
unless a representative payee has been ordered by a court to pay support for his or
her parent, he or she is under no legal obligation to pay such support, and the parent
is not a legal dependent. Unless Lynn W. has been ordered by a court of law to support
her parents, use of her benefits to support a parent does not appear to be proper
use of conserved benefits pursuant to 20 C.F.R. § 404.2040(c).
For the above reasons, we have concluded that parents do not constitute legal dependents
in Wisconsin unless a child has been ordered to support that parent by a court.
Thomas W. C~
Chief Counsel, Region V
Kelly C. C~
Assistant Regional Counsel