PR 01005.039 Ohio
A. PR 04-035 MOS-Effect of Termination of Parental Rights on Inheritance Rights and Social Security Benefits in Region V States Your Reference Number: S2D5G6 Our Reference Number: 03P080
DATE: December 5, 2003
This opinion indicates whether termination of parental rights affects a child's right to inherit from its natural parents under State law, in the absence of subsequent adoption by other individuals .
NOTE: Questions pertaining to specific fact scenarios must be submitted to the RCC for a legal opinion.
You asked us to research the laws of the states in Region V to determine how the termination of parental rights affects a child's right to inherit from its natural parents in the absence of subsequent adoption by other individuals and, consequently, the child's potential entitlement to Social Security benefits. We discuss each state's law below.
The Social Security Act (Act) provides for the payment of child's insurance benefits (CIB) to certain children of individuals who are entitled to old-age or disability insurance benefits or who died fully or currently insured. See 42 U.S.C. § 402(d) (2003); 20 C.F.R. §§ 404.350-404.368 (2003). In order to qualify for CIB, an applicant must be the wage earner's "child" as that term is defined by the Act. See 42 U.S.C. §§ 416(e), 416(h)(2-3). The Act provides that a child is the child of a currently insured individual if he or she would be entitled to inherit from the insured individual. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(C)(1)(a), (2)(a), POMS GN 00306.075. The Agency applies the state law in effect at the time it makes its final decision on the application for benefits. However, if the child claimant would not qualify as the insured wage earner's child under that version of the state law, the Agency looks at all versions of the state law in effect from the first month for which the child claimant could be entitled to benefits until the time of the Agency's final decision, and the Agency applies the version of state law that is most beneficial to the child claimant. See20 C.F.R. 404.355(B)(3)-(4); POMS GN 0030.075(B)(2).
A child's entitlement to CIB depends on whether that individual can inherit money, property or other assets as the wage earner's child according to state intestacy laws. The following paragraphs discuss the laws regarding inheritance rights of children whose natural parents have had their parental rights terminated in each of the six states that comprise Region V:
In Illinois, it appears that a child retains the right to inherit from its natural parents after parental rights are terminated. The Illinois Adoption Act provides that once parental rights are terminated, or a court enters a judgment of adoption, the natural parents are "relieved of all parental responsibility for such child and shall be deprived of all legal rights as respects the child, and the child shall be free from all obligations or maintenance and obedience as respects such natural parents." 750 ILCS 50/17 (2003). This section, however, does not specify inheritance rights as one of the rights affected by termination. In Illinois, courts will not insert conditions or limitations into a statute that are absent from the text. See Davis v. Toshiba Machine Co., America, 710 N.E.2d 399, 401 (Ill. 1999). Additionally, the Illinois Probate Act specifically provides that, for purposes of inheritance, an adopted child is not a child or a descendant of a natural parent. See 755 ILCS 5/2-4(d). The Probate Act does not impose a similar exclusion upon children whose parents have had their parental rights terminated. The Illinois rules of statutory construction provide "that where there exists a general statutory provision and a specific statutory provision, either in the same or in another act, both relating to the same subject, the specific provision controls and should be applied." See Knolls Condo. Ass'n v. Harms, 781 N.E.2d 261, 267 (Ill. 2002). Here, the more specific terms of the Probate Act appear to control the more general terms regarding the effect of termination as explained in the Adoption Act. Because the Probate Act limits only the adopted child's ability to inherit, we presume that a child can likely inherit from natural parents after their parental rights have been terminated, unless and until the child is adopted by another.
In Indiana, it appears that a child retains the right to inherit from its natural parents after parental rights are terminated, absent subsequent adoption. Section 31-35-6-4 of the Indiana Code states that when parental rights are terminated, "all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support, pertaining to the relationship, are permanently terminated." BURNS IND. CODE ANN. § 31-35-6-4 (2003). Section 31-35-6-4 does not specify inheritance rights as one of the rights affected by termination. The predecessor to section 31-35-6-4, however, stated that termination of parental rights "shall divest the parent and the child of all legal rights, privileges, duties and obligations, including rights of inheritance, with respect to each other." BURNS IND. CODE ANN. § 31-3-1-7(g) (1976) (repealed and replaced by § 31-6-5-6, effective October 1, 1979). The rules of statutory construction provide that when the legislature changes the text of a statutory provision, it is presumed that a change of meaning was also intended. See City of Fort Wayne v. Slattery, 791 N.E.2d 807, 811 (Ind. App. 2003). Because the legislature deleted from the statutory text language stating that termination of parental rights results in termination of the child's inheritance rights, it is presumed that the legislature intended to repeal that provision.
In Michigan, the termination of parental rights (absent subsequent adoption) does not terminate a child's right to inherit from its natural parents. See MICH. COMP. LAWS ANN. § 700.2114(1), (3) (2003). Subsection (1) states that, except as provided in subsections (2) (pertaining to adoption) (3) (discussed below) and (4) (inapplicable for the objectives of this memorandum), "for purposes of intestate succession by, through or from an individual, an individual is the child of his or her natural parents...." Subsection (3) provides that "the permanent termination of parental rights" only terminates the right of the natural parents to inherit from or through the child for purposes of intestate succession. Thus, the child's right to inherit from the natural parents remains intact unless that child is actually adopted by other individuals. See MICH. COMP. LAWS ANN. § 700.2114(2) ("An adopted child is the child of his or her adoptive parent or parents and not of his or her natural parents"). The predecessor to this law, however, provided that the termination of parental rights ended kinship for inheritance purposes for both the parent and the child. See MICH. COMP. LAWS ANN. § 700.110(1) (West 2000). We previously advised that, effective April 1, 2000, the permanent termination of parental rights of a minor by order of a court, by a release given by the parent for purposes of adoption, or by any other legal process, ends intestate succession by the parent through the child only (i.e., the child can still inherit from the parents). However, prior to that date, termination of parental rights cuts off the right of both the parent and the child to inherit from the other. See Amendments to the Michigan Revised Probate Code, Memorandum from Regional Chief Counsel, Region V, to Assistant Regional Commissioner, Management and Operations Support (Dec. 11, 2002), at 2.
In Minnesota, a child's right to inherit from its natural parents is severed at the time parental rights are terminated. See In re Estate of Braa, 452 N.W.2d 686, 688 (Minn. 1990) (finding that MINN. STAT. § 260.241(1) (now § 260C.317) does not preserve a child's right to inherit from a natural parent after parental rights are terminated); In the Matter of the Welfare of J.D.N., 504 N.W.2d 54, 58 (Minn. App. 1993) (recognizing that when parental rights are terminated, the child loses its right to intestate succession because the natural parent is relieved of the corresponding obligations arising from that right).
In Ohio, the termination of parental rights does not terminate a child's right to inherit from its natural parents. The right to inherit from a natural parent is terminated only upon the adoption of the child by other parents. See OHIO REV. CODE. ANN. § 3107.15(A)(1) (2003); Mauer v. Becker, 271 N.E.2d 255 (Ohio 1971) (interpreting chapter 3107 to mean that only adoption severs inheritance rights between the child and its legal parents); see also In re Freeland, No. 19960, 2000 WL 1201287 (Ohio App. 9 Dist. Aug. 9, 2000) (unpublished decision); Pledgure v. Goutras, No. 2000-CA-0035, 2000 WL 492578 (Ohio App. 5 Dist. Apr. 3, 2000) (unpublished decision).
In Wisconsin, it appears that the termination of parental rights does terminate a child's right to inherit from its natural parents. Wisconsin statute provides that termination of parental rights "means that...all rights, powers, privileges, immunities and obligations existing between parent and child are permanently severed." WIS. STAT. § 48.40(2) (2003). The Wisconsin supreme court held that a prior version of this statute, which provided for termination of "all rights of parents," severed the right of the natural parents to inherit from the child. See In re Estate of Pamanet, 175 N.W.2d 234, 235-36 (Wis. 1970). The court reasoned that the term "all rights" was clear and unambiguous and that "[i]f the legislature had intended to say, all rights except for the right to inherit..., it would have said so." Id. at 235. The legislature subsequently amended section 48.40 and included language that evinced an intent to make the effect of termination reciprocal between natural parent and child. See WIS. STAT. § 48.40(2) (stating that termination of parental rights means that "all rights...existing between parent and child" are severed) (emphasis added). In Estate of Pamanet, the court noted that if this language were adopted, it would cut off a child's right to inherit from the parent as well. Id. at 236 (indicating that the legislature had previously contemplated, but had rejected a statutory version which provided that both parental rights and a child's right to inherit would end upon the termination of parental rights). "A revised statute is to be understood in the same sense as the original unless the change in language [clearly] indicates a different meaning." See WIS. STAT. § 990.001(7); Seider v. O'Connell, 612 N.W.2d 659, 667 n.4 (Wis. 2000). Thus, given the amendatory language and the Wisconsin Supreme Court's indication that this language would cut off inheritance rights of children when parental rights are severed, we presume that a child cannot inherit from its natural parents after parental rights have been terminated on or after April 10, 1996 (the effective date of the statutory amendment).
We recommend that POMS be amended, as indicated above, to reflect applicable state laws. We also recommend that questions pertaining to specific fact scenarios be submitted for a legal opinion.
Indiana statute provides that for purposes of intestate succession, "an adopted child shall be treated as a natural child of the child's adopting parents, and the child shall cease to be treated as the child of the natural parents…." BURNS IND. CODE ANN. § 29-1-2-8 (2003).
Section 31-6-5-6 was subsequently repealed and replaced by 31-35-6-4, effective July 1, 1997. The statutory language, however, was not materially altered.