The NH married Ethel B~ on July 25, 1983, in Illinois. At the time of their marriage,
Ethel had six children, ranging in age from 15 to 29 years old. The marriage ended
in Ethel’s death on January 29, 2002.
The NH died on May 31, 2008, while domiciled in Illinois. At the time of the NH’s
death, Ethel’s six children were all adults.
As a result of the Special Disability Workload Project, the NH has been awarded Social
Security disability benefits effective September 1975 and is due an underpayment of
Edna N~, the NH’s surviving mother, has filed a claim for payment of his underpayment.
Ethel’s six adult children have also filed a claim for the underpayment.
When an individual dies before a payment due under Title II is paid, payment of the
amount due is made in order of priority to persons described in § 204(d) of the Act.
The statute provides that, when no individual is entitled to benefits on the deceased
NH’s account at the time of his death, and there is no surviving spouse, an underpayment
is paid “to the person or persons, if any, determined by the Commissioner of Social
Security to be the child or children of the deceased individual (and, in case there
is more than one such child, in equal parts to each such child).” Section 204(d)(5)
of the Act; see also 20 C.F.R. § 404.503(b)(5). The deceased NH’s children are higher in priority than
the deceased NH’s parents. See Section 204(d)(5)-(6) of the Act; 20 C.F.R. § 404.503(b)(5)-(6).
The regulations and POMS explain that, for purposes of distributions of underpayments
to a child, SSA uses the same definition of “child” as provided in § 216(e) or (h) See 20 C.F.R. § 404.503(b)(5); POMS GN 02301.030(B)(2). Under § 216(e), the term “child” includes a “stepchild who has been such stepchild
for…not less than nine months immediately preceding the day on which such [insured]
Although the Social Security Act does not define the term “stepchild,” the regulations
and SSA policy define that term. See 20 C.F.R. § 404.357; POMS GN 00306.230(A)(1)-(2); AR 86-12(9); SSR 66-11. The regulations at 20 C.F.R. § 404.357 state,
in relevant part:
You may be eligible for benefits as the insured’s stepchild if, after your birth,
your natural or adopting parent married the insured….The marriage between the insured
and your parent must be a valid marriage under State law…If the insured is not alive
when you apply, you must have been his or her stepchild for at least 9 months immediately
preceding the day the insured died.
In other words, a child is the stepchild of a NH for purposes of Title II only if:
(1) the NH contracted a valid marriage with the child’s mother under state law while
the relationship of parent and child existed between the mother and child, and (2)
the child remained the NH’s stepchild for at least nine months immediately preceding
the NH’s death.
Here, the validity of the marriage between the NH and Ethel in 1983 under Illinois
law has not been raised as an issue. In addition, Ethel’s six children were all born
prior to the date of the marriage. The duration requirement has also been met, as
the NH and Ethel were married much earlier than the requisite nine months before the
NH’s death in 2008. See POMS GN 00306.320(A)(2) (in death claim, marriage between NH and child’s parent must have taken place
at least nine months before NH’s death). Although Ethel died in 2002, SSA policy provides
that the death of a spouse does not end the parent-stepchild relationship. See SSR 70-3; POMS GN 00306.230(A)(3)(a). Thus, Ethel’s six children were the NH’s stepchildren for at least nine
months immediately preceding his death.
SSR 70-3 involves a factual situation almost identical to this case, except that the
surviving stepchildren were minors. In that ruling, SSA held that the stepchildren
of the deceased NH qualified as “children” within the meaning of §§ 204(d) and 216(e)
of the Act, and thus had a higher priority of entitlement to the NH’s underpayment
than the NH’s parents. See SSR 70-3. Here, Ethel’s six children were all adults at the time of the NH’s death.
However, the POMS indicates that age is not relevant when determining a child’s eligibility
for an underpayment. See POMS GN 02301.030(B)(2). Thus, the fact that Ethel’s six children are adults, and all but one were
adults at the time of Ethel’s marriage to the NH, does not affect their status as
the NH’s stepchildren for purposes of the right to receive an underpayment.
You asked whether the step-children could inherit from the NH as his children. Section
216(h) of the Act provides that, in determining whether a claimant is the child of
an insured individual, SSA determines whether the claimant could inherit the NH’s
intestate personal property as the NH’s child under state law. However, step-children
are not required to meet the inheritance rights test. See POMS GN 00306.230(A)(1)(c); POMS PR 01605.026(A) (PR 04-138 Effect of Divorce on Stepchild Relationship for Purposes of Distributing
DIB after Death Underpayment); compare 20 C.F.R. § 404.355 (applying inheritance rights test to determine who is a natural
child), with 20 C.F.R. § 404.357 (applying a different test to determine who is a stepchild).
In Hutcheson v. Califano, 638 F.2d 96 (9th Cir. 1981), the Court of Appeals for the Ninth Circuit held that,
since the term “stepchild” was not specifically defined in the Social Security Act,
and there was no federal common law for family relationships, the definition of “stepchild”
as provided by state law was controlling. See id. at 98-99. Subsequently, SSA issued an acquiescence ruling, which applies only to
cases in which the claimant resides in the Ninth Circuit (i.e., California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, the Northern Mariana
Islands, Alaska, Hawaii, American Samoa, or Guam) at the time of the determination
or decision. See AR 86-12(9); see also POMS GN 00306.390. You indicated that none of Ethel’s six children who are claiming the underpayment
resides in a Ninth Circuit state. Therefore, the acquiescence ruling does not apply.
At this present time, Applicant has not presented adequate proof that she entitled
to receive NH's underpayment as the legal representative of NH's estate. Therefore,
Applicant is not entitled to NH's underpayment.
Donna L. C~
Regional Chief Counsel Region V
_ Cristine B~
Assistant Regional Counsel