SSR 61-63. STATUS OF CHILD UNDER UNFULFILLED CONTRACT TO ADOPT

Immediately following her birth in September 1944, C, an illegitimate

child, was given to F and his wife by the child's mother. At that time,

the mother agreed to give up all rights to the child and to

unconditionally surrender her to F and his wife and they in return

promised to legally adopt C. In June 1946, F and his wife filed a petition

for the adoption of C. This petition contained a statement by C's mother

giving her consent to the adoption, but the adoption proceedings were

never completed because of the death of their lawyer. However, C has

always lived with F and his wife in their home, has been called by their

name, and has been fully supported by F all her life. F and his wife have

always exercised full control and custody of the child and have in all

ways treated her as their own. In December 1960, F attained age 65 and was

awarded old-age insurance benefits effective with that month. In January

1961, F filed an application of C's behalf for child's insurance benefits

based on his earnings record. All events set forth above took place in

Massachusetts while F was domiciled there.

All requirements for child's insurance benefits are met if C is a child

of F as defined in section 216(e) and C is his child under section 216(e)

if she may be deemed his child under section 216(h)(2)(A) of the Act.

Section 216(h)(2)(A), in pertinent part, provides that in determining

whether an applicant is the child of an insured individual, 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 the

individual was domiciled at the time such applicant files application. An

applicant who, according to such law, would have the same status as a

child of the insured individual for the purpose of sharing in his

intestate personal property shall be deemed to be his child.

s would be applied in determining the devolution of

intestate personal property by the courts of the State in which the

individual was domiciled at the time such applicant files application. An

applicant who, according to such law, would have the same status as a

child of the insured individual for the purpose of sharing in his

intestate personal property shall be deemed to be his child.

It is, therefore, necessary to determine whether, under the law of

Massachusetts, C could qualify as a child for a share in the distribution

of F's intestate personal property.

Where a mother unconditionally gave her illegitimate child to foster

parents in return for their promise that the child would be legally

adopted by them, and, although no legal adoption took place, all parties

have otherwise performed their obligations under such a contract, the

court of Massachusetts would recognize the right of the child to specific

performance of the contract and would hold that in equity the child has

the same rights of inheritance as if he had been legally adopted.

Since, therefore, C could share as a child in F's estate under applicable

State law, she may be deemed to be F's, child for purposes of entitlement

to child's insurance benefits.