TN 26 (12-98)

A. Background

Section 5104 of The Omnibus Budget and Reconciliation Act of 1990 (P.L. 101-508) liberalized the entitlement requirements for a child who is legally adopted by a NH's surviving spouse. See GN 00306.146 for prior law.

B. Policy - effective date

The provisions shown in GN 00306.145C. are effective for benefits payable for months after 12/90, but only on the basis of applications filed after 12/31 /90. “Filed” means “effectively filed, ” per GN 00204.007A.2.a.

C. Policy - entitlement provisions

1. Relationship and Dependency

A child legally adopted by the NH's surviving spouse is deemed to be the NH's legally adopted child (and is deemed dependent) as of the date of the NH's death if  the following conditions are met:

1. The surviving spouse legally adopted the child within 2 years after the NH's death; or he/she legally adopted the child more than 2 years after the NH's death but the NH had instituted proceedings to adopt the child before his /her death; and

2. The child was either living withor receiving one-half support from the NH at the time of the NH's death.

The relationship of the surviving spouse to the child is immaterial. It is also immaterial whether the surviving spouse remarries and the subsequent spouse joins in the adoption proceedings.

2. Payment of Benefits

If the above conditions are met, benefits are not payable for any month before the month of the NH's death. You cannot make the determination of entitlement before a legal adoption is effective. However, once an adoption is effective, the child may receive payment for earlier months within the retroactive life of an application, subject to the effective date of the new provisions.

3. Grandchild

The legislation did not change the entitlement requirements in GN 00306.235 ff. that apply specifically to a grandchild adopted by the NH's surviving spouse. Consider the child's entitlement under GN 00306.235 ff. if the conditions in GN 00306.145C.1. are not met, and the child is the grandchild or stepgrandchild of the NH or his/her spouse.

D. Definition

Instituted proceedings to adopt means that the NH took some specific action toward the child's legal adoption; for example, made arrangements for adoption with an approved adopting agency or other qualified persons or initiated court proceedings for the adoption.

E. Procedure- development

1. Proceedings to Adopt

Look for evidence of proceedings to adopt on adoption certificates, contracts, affidavits, etc. In some cases you may need to contact appropriate officials for verification.

2. Living with or One-Half Support

See RS 01301.002 for development of living with, and RS 01301.010 for development of one-half support. “Living with” or “one-half support” may be found in utero situations (see GN 00306.006).

3. Marriage

Develop the marital relationship of the NH and surviving spouse as discussed in
GN 00305.001 ff.

F. Procedure — handling pending or previously disallowed claims

1. Pending Cases

Apply current law to any case in which:

• An application for child's benefits for a child adopted by the NH's surviving spouse is pending, and

• The child was not living in the NH's household at the time of death and/or was receiving disqualifying contributions.

“Pending” means that SSA has not made a final determination at the initial or reconsideration level or a final decision at the ALJ hearing level. Benefits under the new law are not payable for any month prior to January 1991.

2. Previously Disallowed Claims

You may reopen a claim within one year of the initial determination (the disallowance) per GN 04001.100 - GN 04001.110 if:

1. An application for benefits for a child adopted by the NH's surviving spouse was previously disallowed because the child was not living in the NH's household at the time of death and/or because the child was receiving disqualifying contributions, and

2. The child would qualify for benefits under the new law.

Do not seek out cases previously disallowed strictly for reopening. However, if a case comes to your attention either on your own motion or at the request of the claimant, you may reopen. After one year, the claimant would have to file a new application, and benefits would be payable based only on that new application. Benefits under the new law are not payable for any month before January 1991.