20 CFR 404.1109(a)
The claimant, R, and the worker, W, were ceremonially married in 1926 in North Carolina. At the time of this marriage W's first wife, of whom R had no knowledge, was still living and that marriage had never been dissolved. In July 1949, R and W took C to live with them as their foster child and C was still living with R and W and being wholly supported by W when W died domiciled in North Carolina in December 1962. On June 21, 1963, C was legally adopted by R who then filed application for mother's insurance benefits for herself, and for child's insurance benefits on behalf of C, based on W's earnings record.
Section 202(d) of the Act provides for the payment of child's insurance benefits if certain requirements are met and if the claimant is the worker's "child" as defined in section 216(e) of the Act.
Section 216(e) defines the term "child" as:
The issue is whether C may be deemed to be W's legally adopted child pursuant to the provisions of section 216(e) of the Act; and this depends upon whether R, the child's adoptive mother, is W's surviving spouse within the meaning of that section.
The term "surviving spouse" is not defined in the Act. Therefore, the term is defined in its ordinary title II sense, i.e., the deceased individual's widow or widower as these terms are defined in section 216(h) of the Act.
Under the provisions of section 216(h)(1)(A) of the Act, a woman is the widow of a deceased individual if the courts of the State in which he was domiciled at death would find that either they were validly married at the time of his death, or that she would have the same status as his widow under the laws that would be applied in determining the devolution of intestate personal property. The courts of North Carolina would find that R does not meet either of the above tests, since her marriage to W was void due to his prior undissolved marriage. However, under section 216(h)(1)(B), a woman who does not meet the requirements of section 216(h)(1)(A) may nevertheless be deemed to have been validly married to the worker if she meets all of the following conditions: (1) She in good faith went through a marriage ceremony with the worker, not knowing of a legal impediment which made the marriage invalid; (2) the legal impediment resulted: (i) from the continued existence of a prior marriage of either party, or arose out of the dissolution of the prior marriage; or (ii) from a defect in the procedure followed in connection with the claimant's ceremonial marriage to the worker; (3) she was living in the same household with the worker when he died; and (4) at the time she files application, there is no other woman who meets the requirements of section 216(h)(1)(A) and who is or has been entitled to wife's, widow's, or mother's insurance benefits on the worker's earnings record.
In this case, it appears that R went through a marriage ceremony with W, not knowing of the legal impediment which made the marriage invalid; the impediment resulted from the continued existence of a prior marriage of W; R was living in the same household with W when W died; and there is no other woman who meets the requirements of section 216(h)(1)(A) and who is or has been entitled to wife's, widow's, or mother's insurance benefits on W's earnings record.
Since R meets the requirements of section 216(h)(1)(B) for purposes of entitlement to mother's insurance benefits, it is held that she may be considered to be W's "surviving spouse" within the meaning of section 216(e) of the Act; that C is deemed to be the legally adopted child of W as of the date of W's death; and that C may qualify for child's insurance benefits if all other requirements are met.
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