TN 29 (10-05)

Citations:

Act - Sec. 216(h)(2) ;

Regulations - Sec. 404.359

A. Policy - Status of Child

1. General

Sometimes a child cannot qualify for benefits as a legally adopted child because a contemplated adoption was never completed. Most States grant inheritance rights in the NH's intestate personal property to a child who has been the subject of a contract to adopt and has performed as a child for such a length of time that failure to grant such rights would operate as a fraud upon the child.

A child who has such rights may qualify as a “child” of the NH and become entitled to benefits on his/her E/R as an equitably adopted child. (Most States do not generally use this term.)

The States recognizing the concept of equitable adoption are listed in GN 00306.225.

2. Time Requirement - Life Benefits

For a child to qualify for life benefits under this provision, the equitable adoption must have occurred prior to the NH's entitlement to RIB or DIB benefits.

3. Subsequent Legal Adoption

A child may generally qualify as an equitably adopted child even if the NH later legally adopts him/her.

EXCEPTION: A child who is later legally adopted may not be able to qualify for benefits based on an equitable adoption under Texas law. Submit cases involving a subsequent legal adoption in Texas to the RCC per GN 01010.815 ff. in the absence of a precedent opinion.

Develop equitable adoption if retroactive benefits may be payable prior to the legal adoption and an earlier equitable adoption appears likely.

4. Adoption by Estoppel

This concept may apply if adoption proceedings were defective and invalid under State law. See GN 00306.215.

B. Policy - Dependency

The NH must have been living with or contributing to the child's support at one of the points in time set forth in GN 00306.007 or GN 00306.008. See RS 01301.001 - RS 01301.005 for definitions of “living with” and “contributions.”

C. Policy - Requirements

For equitable adoption, all of the following must exist:

• An express contract (may be implied in some States) to adopt the child;

• Some legal consideration for the adopting parent's promise to adopt;

• In some States, a promise to give the child inheritance rights in the adopting parent's personal property;

• Surrender of the child to the adopting parent;

• Performance by the child under the contract;

• Sufficient lapse of time so that the child could have been legally adopted under applicable State law before the NH's death, or the time the child's application is filed if the NH is alive.

NOTE: See RS 00203.010 for a discussion of how the “throughout the entire month” provision applies to an equitably adopted child.

D. Policy - No Parent Status

An equitably adopting parent does not qualify as “parent” as defined in RS 00209.010.