# AR 86-21(2): AR 86-21(2): Adams v. Weinberger , 521 F.2d 656 (2d Cir. 1975) Contributions to Support re: Posthumous Illegitimate Child Title II of the Social Security Act

> Federal · Rulings · In force

URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_AR_AR_86_21_2

## Section

- **Citation:** AR 86-21(2)
- **Heading:** AR 86-21(2): Adams v. Weinberger , 521 F.2d 656 (2d Cir. 1975) Contributions to Support re: Posthumous Illegitimate Child Title II of the Social Security Act
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / AR / Second Circuit Court / AR 86-21(2)

## Text

AR 86-21(2)

EFFECTIVE DATE: 7/3/86

ISSUE:

Whether the contributions for support by the father of an unborn child
commensurate with the needs of the unborn child at the time of the
father's death establish support of the child in order to entitle the
child to survivor's benefits as a deemed child, even though the
contributions to the child or the child's mother were not regular and
substantial.

STATUTE/REGULATIONS/RULING CITATION:

Section 216(h)(3)(C)(ii) of the Social Security Act (42 U.S.C.
416(h)(3)(C)(ii); 20 C.F.R. 404.366(a)(2); Social Security Ruling
68-22

CIRCUIT:

SECOND (CONNECTICUT, NEW YORK, VERMONT)

Adams v. Weinberger , 521 F.2d 656 (2nd Cir. 1975)

APPLICABILITY OF RULING:

DESCRIPTION OF CASE:

In June of 1969, Peter McGinn and Rossini Adams began sharing his
Manhattan apartment above the restaurant that he operated even though
McGinn was married and the father of four children. Ms. Adams maintained a
mailing address and a room at her mother's home in Brooklyn. On weekends
Mr. McGinn visited his wife and children. While Mr. McGinn and Ms. Adams
were maintaining their joint abode in the Manhattan apartment, she became
pregnant. She continued to work as a bookkeeper while Mr. McGinn worked at
his restaurant. During this period he contributed money to her whenever
she asked for it and, on occasion, even without her request. These
payments totalled between $200.00 and $300.00 over the seven month period
of joint habitation. Mr. McGinn gave Ms. Adams the $100.00 registration
fee for the hospital room that he knew she would need when the baby
arrived. Additionally, he offered to pay the entire hospital bill which he
assumed would amount to approximately $1,000.00.
it and, on occasion, even without her request. These
payments totalled between $200.00 and $300.00 over the seven month period
of joint habitation. Mr. McGinn gave Ms. Adams the $100.00 registration
fee for the hospital room that he knew she would need when the baby
arrived. Additionally, he offered to pay the entire hospital bill which he
assumed would amount to approximately $1,000.00.

In January of 1970, Ms. Adams became depressed over Mr. McGinn's class of
friends and returned to her mother's home in Brooklyn to await the birth
of the child. There was no agreement between the two as to reconciliation
or marriage. After moving out, Ms. Adams would visit Mr. McGinn at his
restaurant several times each week. Mr. McGinn tried to convince Ms. Adams
that she should not work during the later stages of her pregnancy and that
she should return to the apartment where she could do some of his
bookkeeping if she felt the need to remain active. Mr. McGinn requested
that Mr. Adams give him the child to keep and care for if she did not want
it after its birth.

On February 18, 1970, Mr. McGinn was murdered. On March 8, 1970, Devlin
Adams was born. Ms. Adams sought child's insurance benefits on the
earnings record of Mr. McGinn which were denied through the hearing level.
At the hearing level the Administrative Law Judge (ALJ) denied Devlin
Adams' claim for surviving child's benefits because under section
216(h)(3)(C)(ii) there was insufficient evidence of paternity and at the
time of his father's death, Mr. McGinn had not been living with him or
contributing regularly or substantially to his support. Ms. Adams appealed
to the United States District Court for the Eastern District of New York
which upheld the Secretary's decision (except that it held that there is
no legal requirement that the support be substantial). Ms. Adams appealed
to the United States Court of Appeals for the Second Circuit which
reversed the district court's decision.

HOLDING:
y or substantially to his support. Ms. Adams appealed
to the United States District Court for the Eastern District of New York
which upheld the Secretary's decision (except that it held that there is
no legal requirement that the support be substantial). Ms. Adams appealed
to the United States Court of Appeals for the Second Circuit which
reversed the district court's decision.

HOLDING:

The Court of Appeals held that the appropriate test for determining
whether the worker was "contributing to the support" of his illegitimate
posthumous child is whether the support was commensurate with the needs of
the unborn child at the time of the father's death. Since Mr. McGinn had
provided the unborn child's mother with a rent-free apartment, had
sporadically contributed cash to her support and had made payment towards
her hospital bill for the birth of the child, the court concluded that the
test was met in this case.

STATEMENT AS TO HOW ADAMS DIFFERS FROM SOCIAL SECURITY
POLICY:

Under the Social Security Administration's (SSA's) regulations
implementing section 216(h)(3)(C)(ii) of the Social Security Act (20
C.F.R. 404.366(a)(2)), "contributions for support" of the applicant must
be made regularly and must be substantial. In order to be substantial,
contributions must be large enough to meet an important part of the
ordinary living costs of the applicant. A consistent pattern of
contributions is sufficient to show regularity. Under SSR 68-22 and SSA's
operating instructions, the "living with" or "contributing to support"
requirements are established for the posthumous child of a worker if the
worker was living with, or contributing to the support of, the child's
mother at the time of the worker's death.
nary living costs of the applicant. A consistent pattern of
contributions is sufficient to show regularity. Under SSR 68-22 and SSA's
operating instructions, the "living with" or "contributing to support"
requirements are established for the posthumous child of a worker if the
worker was living with, or contributing to the support of, the child's
mother at the time of the worker's death.

The court in Adams held that the measure of support given to the
mother is not the test applicable to the issue of support of the child
since the dependency of the mother is not the issue. Further, since an
unborn child is totally dependent on its mother for its "human needs," the
"regular" contributions requirement is "purposeless." The test for
dependency is whether the father's support was commensurate with the needs
of the unborn child at the time of the father's death. Such support,
depending on the facts of the case, can consist of even relatively small
amounts.

EXPLANATION OF HOW SSA WILL APPLY THE ADAMS DECISION WITHIN THE
CIRCUIT:

This ruling applies only to cases involving an applicant for child's
benefits as a deemed child under Section 216(h)(3)(C)(ii) of the Social
Security Act who resides in Connecticut, New York, or Vermont at the time
of the determination or decision at any level of administrative review,
i.e., initial reconsideration, administrative law judge hearing or Appeals
Council review and who was born after the worker died.

Such an applicant will be deemed to be the worker's child when
satisfactory evidence establishes that the worker is the father of the
child and the worker's contributions to his unborn child were commensurate
with the needs of the unborn child at the time of the worker's death, even
though those contributions were not regular and substantial.

EFFECTIVE DATE:

Date of Publication.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_AR_AR_86_21_2. Check the current official text before relying on it. Not legal advice.