SSR 63-28: SECTIONS 202(d), 216(e), and 216(h)(2)(A). -- RELATIONSHIP -- ADOPTED CHILD'S RIGHTS OF INHERITANCE FROM NATURAL PARENT

20 CFR 404.1101 and 404.1109

SSR 63-28

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.

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

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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.