Whether M~ (Claimant), an applicant for Supplemental Security Income (SSI) payments,
has an ownership interest in property located in V~, Puerto Rico that would constitute
Under Puerto Rico law, it is unlikely that the Claimant has an ownership interest
in the property located in V~, Puerto Rico. However, even if the Claimant had an ownership
interest in the property, the property is not a resource for SSI purposes since the
Claimant cannot legally transfer that interest to anyone.
The Claimant applied for SSI on July XX, 2015. In connection with her application,
the Claimant stated that her mother, C~ (C~), died in 2011 without executing a will.
C~ had three children – the Claimant, I~, and M2~. According to the Claimant, C~ was
At the time C~ died, C~ and the Claimant lived together in a house owned by C~, mailing
address V~, Puerto Rico. According to the Claimant, after C~ died, her siblings “allowed”
the Claimant to continue living in the house because she was the only sibling that
did not have a house of her own. The Claimant’s siblings did not live in the house,
but managed the property in question. According to the Claimant, I~ maintained the
property (i.e. mowing the lawn, etc.) while M2~ paid the property taxes and other
fees. Both siblings continued to receive mail at the property. The Claimant continued
to live in this house after her mother died until she moved to Nebraska on June XX,
2014, after which the property was left vacant. The property reportedly does not produce
any income. The Claimant reported that neither she nor her siblings have done anything
to change the ownership of the property.
The Claimant provided a certificate from Centro de Recaudacion de Ingresos Municipales
(CRIM) in Puerto Rico showing that there was no property under her name in V~, Puerto
Rico as of October 2014.
A. Applicable Social Security Laws, Regulations, and Policy
Under the Social Security Act (Act), to be eligible for SSI, a claimant must show
that she does not exceed permitted income and resource amounts, among other requirements.
42 U.S.C. § 1382(a); 20 C.F.R. § 416.202. Inherited real property can be counted as
a resource, if the individual owns and could convert the property to cash to be used
for her support and maintenance. 20 C.F.R. §§ 416.1201(a)(1), (a)(4). Program Operations
Manual (POMS) SI 01110.100B.1. Any property that does not meet this criteria is not a resource even though it
may be an asset. POMS SI 01110.100B.3 (stating as an example that an individual who has an ownership interest in property
but is not legally able to transfer that interest to anyone does not have a resource).
An individual can be considered to have an ownership interest in an unprobated estate,
which may then be a potential resource, if (1) documents, such as a will or court
records, indicate that the individual is an heir to the property of the deceased;
or (2) the individual has use of the property or receives income from it; or (3) documents
establish, or the individual alleges, a relationship between herself and the deceased
which, under state intestacy laws, awards the individual a share in the distribution
of the deceased’s property; and (4) the inheritance, use of income, and distributions
are uncontested. POMS SI 01120.215A.2. Here, the Claimant has not indicated that the potential inheritance property at
issue, her mother’s house, is contested. POMS SI 01120.215A.2. While it does not appear that there is a will to establish that she is an heir
to her mother’s house, or that she has use of the house or receives income from it,
the Claimant is related to the decedent. POMS SI 01120.215A.2. Therefore, we must look to Puerto Rico intestacy law to determine whether the
Claimant would be entitled to a share of the property.
Additionally, once an ownership interest is established, it should be determined whether
there are other owners and, if so, whether the individual needs their consent to sell
her share of the property. POMS SI 01120.215B.2. If the individual is the sole owner or if the other owners give needed consent
to sell, the property is the individual’s resource. POMS SI 01120.215B.3. If other owners withhold consent and that consent is necessary to sale, the property
is not a resource until the estate has been through probate. Id. When there is a legal bar to sale of a property, the Social Security Administration
(SSA or agency) does not require an individual to undertake litigation in order to
accomplish sale or access, and the property will not be considered a resource. POMS
B. Puerto Rico Law
The Puerto Rico Civil Code establishes the order and manner in which the intestate
share of an estate must be distributed. 31 L.P.R.A. § 2081 et seq.; see POMS SI NY01110.515A. When a decedent dies intestate, the decedent’s immediate heirs are her descending
direct line, with the relative nearest in the degree excluding the most remote in
most cases. 31 L.P.R.A. §§ 2607, 2641. Legitimate and acknowledged illegitimate children
and their issue succeed their deceased parent without distinction of sex, age, or
even if they are from different marriages and relationships. 31 L.P.R.A. § 2642. The
children of the deceased also inherit in equal shares. 31 L.P.R.A. §§ 2607, 2643.
Here, C~’s immediate heirs appear to be the Claimant and her two siblings, which we
assume were all acknowledged by C~. The Claimant and her siblings, though, did not
automatically inherit the property at issue at the moment of C~’s death. Rather, the
Claimant and her siblings only received a call to potentially inherit the property
or, seen another way, a right to accept or reject their inheritance. See 31 L.P.R.A. § 2085; POMS SI NY01120.215.A.3; Rivera Rivera v. Monge Rivera, 117 D.P.R. 464, 471-72 (P.R. 1986) (English translation not available) (noting that
heirs only receive a call to inherit until they accept or reject the inheritance).
Under the Civil Code, an individual cannot actually acquire her inheritance until
she accepts her inheritance. 31 L.P.R.A. §§ 2773, 2781; POMS SI NY01120.215.A.3; Rivera Rivera, 117 D.P.R. at 471-72; see also B.B.V.A. c. Latinamericana, 164 D.P.R. 689, 695 (P.R. 2005) (English translation not available). Until an individual
accepts an inheritance, the delivery of an inheritance, with all its rights and obligations,
is held in suspension, or essentially frozen in time. See Rivera Rivera, 117 D.P.R. at 474.
An individual can accept an inheritance either 1) purely and simply, or 2) after first
conducting an inventory of the inheritance. 31 L.P.R.A. § 2780. A pure and simple
acceptance may be expressed or implied. 31 L.P.R.A. § 2781. An express acceptance
is one that is made in a public or private instrument. 31 L.P.R.A. § 2781. On the
other hand, an implied acceptance, also called a tacit acceptance, is one “made by
acts which necessarily imply a wish to accept, or acts which no one should have a
right to execute except in the capacity of an heir.” 31 L.P.R.A § 2781; see also Caballero Jimenez v. Merced Caballero, No. EAC2004-0652, 2008 WL 833515, at *7 (P.R. Cir. Feb. 20, 2008) (English translation
not available). According to the Civil Code, acts that involve the mere preservation
of the inheritance, or provisional administration or managing of inheritance property,
do not constitute acceptance of an inheritance, and do not convert a person potentially
called to be an heir into an actual heir. 31 L.P.R.A. § 2781; see Sucn. Maldonado v. Sucn. Maldonado, 166 D.P.R. 154, 179, 2005 WL 3056492 (P.R. 2005) (noting that in Rodríguez v. Ubides Vda. de Font, 58 D.P.R. 252 (1941) the Court had found that making an inventory of the inheritance,
paying inheritance tax, and receiving rent on inheritance property did not in and
of themselves constitute acceptance of an inheritance).
As an example, the Civil Code states that an inheritance is considered tacitly accepted
when 1) the heir sells, gives, or assigns her right to a stranger, to all her coheirs,
or to one of them; 2) when she renounces it, even gratuitously, for the benefit of
one or more of her coheirs; 3) or when she renounces it for consideration in favor
of all her coheirs. 31 L.P.R.A. § 2782; see Sucn. Maldonado v. Sucn. Maldonado, 166 D.P.R. at 179; Gonzalez Campos v. Gonzalez Mezerene, 139 D.P.R. 228, 248-49 (P.R. 1995) (English translation not available) (noting that
31 L.P.R.A. § 2782 consists of examples of tacit acceptance). The assignment, repudiation,
and renunciation of hereditary rights, though, must be memorialized in a public document.
31 L.P.R.A. § 3453(4); see Caballero Jimenez, 2008 WL 833515, at *7 (finding that the acts of assignment, repudiation, and renunciation
laid out in 31 L.P.R.A. § 2782 must be memorialized in a public document according
to 31 L.P.R.A. § 3453). Where there are multiple heirs, each has the right to accept
or reject independently of the other. 31 L.P.R.A. § 2789. Once an heir has accepted
or disclaimed her inheritance, it is irrevocable. 31 L.P.R.A. § 2779. If the inheritance
is accepted, whether expressly or tacitly, the possession of the hereditary property
is understood as transferred to the heir without interruption and from the moment
of death of the decedent. 31 L.P.R.A. §§ 1443, 2772; Rivera Rivera, 117 D.P.R. at 482. The repudiation of an inheritance must be made in a public or
authentic instrument, or in writing presented to the Court of First Instance. 31 L.P.R.A.
§ 2790. Any person who rejects an inheritance in a valid manner is considered as never
to have possessed the same. 31 L.P.R.A. §§ 1443, 2772.
Here, there is no evidence indicating that the Claimant has repudiated her inheritance.
There is similarly no evidence that she has expressly accepted her inheritance. However,
there is a question as to whether she has tacitly accepted her inheritance. Though
there is no evidence that she has engaged in any of the acts described in 31 L.P.R.A.
§ 2782 as acts of tacit acceptance, some may argue that the Claimant tacitly accepted
by living in her mother’s house after her mother’s death. There is caselaw suggesting
that an heir can tacitly accept an inheritance by entering into possession of the
property, or exercising authority or dominion over the property if, among other things,
the heir exclusively possesses that property in the capacity of owner without interruption
in a public and peaceful manner for 30 years. Sucn. Maldonado, 166 D.P.R. at 180 (citing 31 L.P.R.A. §§ 1462, 5262, 5280). However, if an heir
possesses a property by “mere tolerance,” or with permission or agreement of the other
coheirs, then the heir does not possess the property as an owner. See Sucn. Maldonado, 166 D.P.R. at 186. Possession by mere tolerance of the owner is of no effect for
establishing possession. 31 L.P.R.A. § 5263. Also, possession is interrupted naturally
when it ceases for more than one year. 31 L.P.R.A. § 5265.
In this case, the Claimant lived in the house for approximately only three years after
her mother’s death. Moreover, according to the Claimant, her siblings “tolerated”
or “allowed” her to live in her mother’s home because she was the only sibling without
a house. A Puerto Rico court’s analysis would be very fact-specific and turn on whether,
in this context, the Claimant’s actions could be seen as those only an heir could
take. See Rodriguez v. Ubides Vda. Font, 58 D.P.R. at 259 (citing 31 L.P.R.A. § 2781 in explaining that determining
whether tacit acceptance has occurred is a fact-specific analysis that requires considering
context and inferring the potential heir’s intent). It seems unlikely that a Puerto
Rico court would find that three years of residence post C~’s death, with the permission
of the other potential co-heirs, after which Claimant moved to another state, is sufficient
to establish dominion. If it cannot be construed that the Claimant has accepted her
inheritance by continuing to live in her mother’s home after her mother’s death, then
the Claimant has no ownership right. POMS SI NY01120.215 (“the inheritance would not be considered income…before the individual actually accepted
However, even assuming that the Claimant’s actions constitute tacit acceptance and
she has an ownership right in the inheritance, her ownership right cannot be counted
as a resource. Prior to the partition of an inheritance, an heir can only give or
sell her “abstract participation” in the inheritance, as opposed to an actual concrete
good, unless the other heirs have also accepted the inheritance and consented to the
sale. See Popular Mortgage v. Ruperto Lopez, 2013 WL 5596009 at *5 (P.R. Cir. Aug. 27, 2013) (English translation not available)
(holding that sale was void where other coheirs had not accepted inheritance and not
consented to sale); Garcia Cruz v. Garcia Cruz, No. EAC2008-0244, 2012 WL 6217037, at *4 (P.R. Cir. Oct. 31, 2012) (English translation
not available) (noting that when there are multiple heirs, until there is a partition
action, no one heir has a concrete right over the property). Here, the Claimant has
not stated that her siblings have tacitly accepted their inheritance, and the actions
of the Claimant’s siblings as to the maintenance of the home and payment of taxes
likely do not constitute tacit acceptance. 31 L.P.R.A. § 2781 (providing that mere
preservation of the inheritance, or provisional administration or managing of inheritance
property, do not constitute acceptance of an inheritance, and do not convert a person
potentially called to be an heir into an actual heir); see Rodríguez v. Ubides Vda. de Font, 58 D.P.R. at 259.
Plaintiff and her siblings could be forced to state whether they accept or reject
their inheritance. Puerto Rico law recognizes that silence from an individual who
is called to inherit, as to whether she accepts or rejects her inheritance, can lead
to many years of uncertainty as to anyone else, including creditors, who may have
an interest in the inheritance. B.B.V.A. c. Latinamericana, 164 D.P.R. at 696. To alleviate this uncertainty, the Civil Code provides that an
interested third party can go to the Puerto Rico Court of First Instance to force
an heir to state whether she accepts or rejects an inheritance, within a period of
30 days. 31 L.P.R.A. § 2787; B.B.V.A. c. Latinamericana, 164 D.P.R. at 696. If the heir does not declare her intent either way, it will be
assumed that she accepts the inheritance. Id. After that, a partition action can be commenced so that the property can be sold
without requiring consent of the coheirs. See Lugo Rodriguez v. Lugo Rodriguez, 2013 WL 6979894, fn. 4 (May 31, 2013) (English translation not available) (citing
31 L.P.R.A. § 2871 for proposition that an inheritance must be divided if one of the
coheirs requests the division unless the deceased explicitly prohibited partition).
However, when there is a legal bar to sale of a property, SSA does not require an
individual to undertake litigation in order to accomplish sale or access, and the
property will not be considered a resource. POMS SI 01120.010. Thus, regardless of whether the Claimant has accepted her inheritance and has an
ownership interest, she does not have a resource for SSI purposes since she is not
legally able to transfer that interest to anyone. POMS SI 01110.100B.3.
The Claimant is unlikely to have an ownership interest in the property located in
V~, Puerto Rico. However, even if the Claimant had an ownership interest in the property,
the property is not a resource for SSI purposes since the Claimant cannot legally
transfer that interest to anyone.