20 CFR 404.1101 and 404.1109

SSR 63-28

Where a child was adopted by his stepfather in Florida, and his natural father subsequently died domiciled in New Jersey, and where, by reason of that adoption, the child cannot inherit from its natural father in New Jersey, held, such child does not have the status of a "child" for purposes of becoming entitled to child's insurance benefits on his natural father's earnings record.

A worker, M, and his wife, W, were divorced in 1955, and W was granted custody of their 6-year-old son, C. In 1959 W remarried, and in January 1960 her second husband adopted C in Florida. M died fully insured in December 1961 while domiciled in New Jersey, and W filed application on behalf of C for child's insurance benefits on M's earnings record.

Section 202(d) of the Act provides for the payment of child's insurance benefits to a child (as defined in section 216(e)) of a worker who dies fully or currently insured, if certain requirements for entitlement are met. Under section 216(e), the term "child" means the child, the legally adopted child, and/or, under certain circumstances, the stepchild of a worker.

Section 216(h)(2)(A) of the Act provides, as pertinent here:
In determining whether an applicant is the child * * * of a fully or currently insured individual for purposes of this title, the Secretary 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 * * * was domiciled at the time of his death, * * *. Applicants who according to such law would have the same status relative to taking intestate personal property as a child * * * shall be deemed such.

The primary issue is whether C has the status required by section 216(h)(2)(A), supra, and is thus M's "child" under section 216(e). (Under certain circumstances not present in this case, a claimant may also qualify as the child of a worker under section 216(h)(2)(B).)

Under the law of Florida, the State in which C was adopted, an adopted child retains the right to inherit intestate personal property from his natural father. (Section 731.30, Florida Statutes Annotated.) Had M died domiciled in Florida, C would qualify as M's child under section 216(e). However, M died domiciled in New Jersey and under section 216(h)(2)(A), C's status as M's child for the purpose of determining eligibility for child's insurance benefits must be determined by application of the laws which the courts of that State would apply in determining the devolution of M's intestate personal property. The courts of New Jersey would (in accordance with the conflict- of-laws rule of the majority of American jurisdictions) follow the rule that, in general, an adoptive status created in another jurisdiction will be recognized in New Jersey, but that the right of the person so adopted to inherit in New Jersey is governed by the laws of that State. In re Finkenzeller's Estate, 105 N.J. Eq. 44, 146 Atl. 656 (1929), affirmed 107 N.J. Eq. 680, 151 Atl. 905 (1930). Under New Jersey law, if the natural parent died after December 31, 1953, his child, if adopted by another person during the natural parent's lifetime, may not inherit unless the natural parent is the spouse of the adopting parent and consents to and approves the adoption. (Section 9: 3-30, New Jersey Statutes Annotated.)

Thus, in the instant case, C, by reason of the Florida adoption, could not share as a child in M's intestate personal property in New Jersey, and hence is not M's child for purposes of entitlement to child's insurance benefits.

Back to Table of Contents