SSR 65-40: SECTIONS 202(h) and 216(h)(2)(A). -- RELATIONSHIP -- PARENT'S INSURANCE BENEFITS -- "IN LOCO PARENTIS"

20 CFR 404.1110

SSR 65-40

R died in October 1963 at age 35 while domiciled in California. The

following month, his elder sister, W, filed an application for parent's

insurance benefits on his earnings record. She stated that R's parents

died when he was about 4 years old, and that thereafter she had complete

charge of R's upbringing until he was about age 19 and in all respects

acted as his foster parent. She established that at the time of R's death

she had been receiving at least one-half her support from him.

Section 202(h)(1) of the Act, 42 U.S.C.A. 402(h)(1), provides in

pertinent part that every parent of an individual who died fully insured

is entitled to parent's insurance benefits if such person:

The sole question raised, all other requirements having been met, is

whether the claimant as an individual "in loco parentis" to the deceased

worker is a "parent" within the meaning of section 202(h) of the Social

Security Act.

The term "parent" is defined in section 202(h)(3) of the Act as the

mother or father of an individual, a stepparent of an individual by a

marriage contracted before such individual attained the age of 16, or an

adopting parent by whom an individual was adopted before he attained the

age of 16. Section 216(h)(2) provides that in determining whether an

applicant is the parent of an insured individual under the Act, the

Secretary of Health, Education, and Welfare is to 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

of his death.

e attained the

age of 16. Section 216(h)(2) provides that in determining whether an

applicant is the parent of an insured individual under the Act, the

Secretary of Health, Education, and Welfare is to 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

of his death.

Accordingly, since R was domiciled in the State of California at the time

of his death, the law of California applies in determining W's states as

R's parent. There is no provision in the California statues under which an

individual standing "in loco parentis" to a deceased individual may share

in the intestate personal property of such individual the same as a

natural parent. Therefore, it is held that W does not have the

status of parent of R within the meaning of the Social Security Act and,

accordingly, cannot become entitled to parent's insurance benefits.