R married W in North Carolina in 1926, not knowing that W’s prior marriage had not been dissolved. In 1949 R and W took in C as a foster child. C continued the live with R and W in North Carolina until W’s death in December 1962.

The following June, R legally adopted C. She applied for mother’s social security insurance benefits for C based on W’s earnings record.

In order to receive child’s benefits, C needed to qualify as W’s child under the Social Security Act. C could become deemed to be W’s legally adopted child if she was living in the same household with W at the time of his death and was legally adopted by his surviving spouse within two years of his death.

Thus, whether C was deemed W’s child turned on whether R was deemed to be W’s surviving spouse.

Under social security law, a person is considered to be a deceased worker’s surviving spouse if one of the following conditions is met: 1) the law of the state in which the decedent was domiciled at the time he passed away (in this case, North Carolina) considered the claimant and decedent to be validly married at the time of decedent’s death; or 2) the claimant would be entitled to inherit personal property from the decedent under the laws of intestate succession of the state in which decedent was domiciled at the time of death.

W did not qualify as R’s widow under either of these tests.

However, there was also a catch all provision by which W could still be deemed to be R’s widow if certain conditions were met. These conditions were: 1) R in good faith entered into a ceremonial marriage with W, not knowing of a legal impediment which rendered the marriage invalid; 2) the impediment resulted from I) the continued existence of a prior marriage, or ii) a defect in the procedure of the ceremonial marriage; 3) R was living in the same household with W when he died; and 4) at the time R filed her application for benefits there was no other woman who was, or had been entitled to, wife’s, mother’s, or widow’s benefits based on W’s earnings record.

Because R met the requirements of this provision, she qualified for widow’s benefits based on W’s earnings record and, therefore, C qualified for child’s benefits based on W’s e.

See Social Security Ruling (SSR) 65-11.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.