QUESTION
               You have asked whether the claimant can qualify for child's insurance benefits as
                  the equitably adopted child of the number holder.
               
               OPINION
               For the reasons stated below, we do not believe the claimant has satisfied the requirements
                  for an equitable adoption.
               
               BACKGROUND
               Essence L~ (Claimant) was born on May 5, 1999, to Ebony L. L~ and James F. M~. Claimant
                  has been living with her grandparents, Dianne L~ (Claimant's grandmother) and Ezzard
                  M~, the number holder (NH), since her birth, because Claimant's natural mother was
                  fifteen when Claimant was born. Presently, Claimant's natural mother lives in Alabama
                  and her natural father lives in Georgia.
               
               NH, a Georgia resident, died on December 28, 2007. In June 2008, Claimant's grandmother
                  filed for survivor's child's benefits for Claimant on NH's record. Claimant's grandmother
                  stated she and NH were in the process of adopting Claimant prior to NH's death. Claimant's
                  grandmother submitted a copy of a draft petition for adoption, which listed her and
                  NH as the petitioners. However, the draft petition was not dated (shows December 2007),
                  not signed by the attorney for the petitioners, and not filed with the courts. Claimant's
                  grandmother also submitted a filed petition for adoption dated May 12, 2008, which
                  only listed her as the petitioner; acknowledgements of surrender of rights/final release
                  for adoption from Claimant's natural parents dated May 6, 2008, and May 7, 2008; a
                  mother's affidavit from Claimant's natural mother dated May 6, 2008; and an affidavit
                  of petitioner's representative from Attorney Greg W. H~ dated May 12, 2008. The order
                  for final hearing on this petition is scheduled for July 22, 2008.
               
               DISCUSSION
               Under the Social Security Act (Act), a claimant may qualify for child's insurance
                  benefits on the earnings record of a deceased insured individual if the claimant is
                  the insured individual's "child." See Act § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2008). "Child" includes both
                  a child and a legally adopted child.  See Act § 216(e), 42 U.S.C. § 416(e). Moreover, the notion of an equitably adopted child
                  is implicit in the definition of child. The Act provides that, in determining whether
                  a claimant is the "child" of an insured wage earner for purposes of child's insurance
                  benefits, SSA "shall apply such law as would be applied in determining the devolution
                  of intestate personal property by the courts of the State in which such insured individual
                  is domiciled at the time such applicant files [an] application." Act § 216(h)(2)(A).
                  "Applicants who according to such law would have the same status relative to taking
                  intestate personal property as a child or parent shall be deemed such." 42 U.S.C.
                  § 416(h)(2)(A). A claimant may be eligible for benefits as an equitably adopted child
                  if the insured individual had agreed to adopt the claimant as his or her child but
                  the adoption did not occur. See 20 C.F.R. § 404.359 (2008). The agreement to adopt must be one that would be recognized
                  under State law so that the claimant would be able to inherit a child's share of the
                  insured individual's personal property if he or she died without leaving a will.  See  id.  Furthermore, the agreement must be in whatever form, and the claimant must meet whatever
                  requirements for performance under the agreement that State law directs.  See id. If the claimant applies for child's benefits after the insured individual's death,
                  the law of the State where the insured had his or her permanent home at the time of
                  his or her death will be followed. See  id.  Consequently, since the equitably adopted child is one who could inherit a child's
                  share of the number holder's intestate estate, the equitably adopted child's status
                  as a child for Social Security benefits purposes derives from the § 216(h)(2)(A) definition
                  of child as one who would have the same status relative to taking intestate personal
                  property as a child.  See 20 C.F.R. § 404.354 (2008). The determination of whether a child is the legally adopted
                  child of an insured individual is based on the adoption laws of the State where the
                  adoption took place. See 20 C.F.R. § 404.356 (2008).
               
               Because NH was a Georgia resident when he died in Georgia, we apply Georgia law to
                  determine whether Claimant was NH's adopted child. See 20 C.F.R. § 404.359 (2008). Because any purported adoption would have taken place
                  in Georgia, we apply Georgia law to determine whether NH adopted Claimant.
               
               The evidence is clear that Claimant does not qualify as the legally adopted child
                  of NH. Even when all the criteria for a formal, legal adoption have not taken place,
                  some states recognize through judicial determination that an adoption has taken place
                  in equity. Georgia is among the states that recognizes equitable adoption. See  Davis v. Bennett, 438 S.E.2d 73 (Ga. 1994); see also  Prince v. Black, S.E.2d 411 (Ga. 1986); Williams  v. Murray, 236 S.E.2d 624 (Ga. 1977).
               
               To establish a cause of action for virtual or equitable adoption in Georgia, one must
                  make "some showing of an agreement between the natural and adoptive parents, performance
                  by the natural parents of the child in giving up custody, performance by the child
                  by living in the home of the adoptive parents, partial performance by the foster parents
                  in taking the child into the home and treating [it] as their child, and . . . the
                  intestacy of the foster parent." Chambers  v. Chambers, 398 S.E.2d 200 201 (Ga. 1990) (citations omitted). We do not believe that the evidence
                  is sufficient to show NH equitably adopted Claimant.
               
               The evidence submitted with your inquiry appears to establish four of the five elements
                  of equitable adoption under Georgia law. First, Claimant's natural parents gave up
                  custody of Claimant. Second, Claimant lived with NH. Third, NH took Claimant into
                  his home and appeared to have treated her as his own child. Fourth, NH died intestate.
               
               However, the evidence does not establish the element of "some showing of an agreement
                  between the natural and adoptive parents." Chambers, 398 S.E.2d at 201. A successful virtual adoption claim requires some showing of
                  a contract to adopt between the natural and adoptive parents. Walden v. Burke, 637 S.E.2d 859, 860 (Ga. App. 2006) (citing Hulsey v. Carter, 588 S.E.2d 717 (Ga. 2003)). "While the agreement must comprehend and intend an adoption,
                  the use of the word 'adopt' is not necessary." Anderson v. Maddox, 360 S.E.2d 590 (Ga. 1987) (citing Williams v. Murray, 236 S.E.2d at 625).
               
               In this case, there is no evidence that Claimant's natural parents contracted or agreed
                  to Claimant's adoption by NH. "In virtual adoption cases, a contract for adoption
                  must be proven by clear and compelling evidence and 'the first essential element of
                  a contract for adoption is that it be made between persons competent to contract for
                  the disposition of the child.'" Hulsey, 588 S.E.2d at 718 (citations omitted). Here, the record contains no evidence of
                  an agreement or contract by Claimant's natural parents to an adoption of Claimant
                  by NH. The draft petition for adoption dated December 2007, which included NH as one
                  of the petitioners, is not sufficient to establish such an agreement. Notably, the
                  acknowledgments of surrender of rights entered into by Claimant's natural parents
                  were not signed prior to NH's death but rather five months later when Claimant's grandmother
                  filed a petition to adopt Claimant on her own. These acknowledgments reflect that
                  Claimant's natural parents released Claimant for adoption by Claimant's grandmother.
                  Based on these facts, we cannot infer an agreement or contract for Claimant's adoption
                  by NH.
               
               In addition, NH's actions in taking physical custody of Claimant at her birth, allowing
                  Claimant to live with him and standing in the position of a parent, was not sufficient
                  proof of a contract for adoption. In Lee v. Gurley, the Supreme Court of Georgia found insufficient evidence of surrender of a child
                  by her natural parents to prove a contract of adoption where the child's custodial
                  parent gave physical custody of the child to her uncle, child lived with her uncle,
                  and the uncle stood in the position of a parent to the child. 389 S.E.2d at 334.
               
               CONCLUSION
               For the foregoing reasons, we do not believe Claimant is the equitable adopted child
                  of NH. Consequently, Claimant is not eligible for child's insurance benefits on the
                  earnings record of NH.
               
               Very truly yours,
               
Mary A. S~
Regional Chief Counsel
____________
Simone D. P~
Assistant Regional Counsel