PR 01405.017 Indiana

A. PR 88-017 Right Of Natural Father To Inherit From Adopted - Away Child - Robert E. SSN ~

DATE: July 10, 1988

1. SYLLABUS

An Indiana statute terminates the right of a natural parent to inherit from an adopted-away child.

(H~, Robert E., RA V [Weinstein] to ARC, Progs., Chicago, Ill., 07/20/88)

2. OPINION

This is in response to your request for our opinion which we received July 11, 1988.

ISSUE

May the natural father of a child who was adopted inherit from the child under the laws of intestate succession in the state of Indiana.

FACTS

Robert E. H~ was adopted while still a minor by his stepfather. He subsequently became disabled and died. He is survived by his mother, his adoptive father and a natural father. He left no will. At the time of his death he was owed approximately $2000 in back disability benefits.

DISCUSSION

Section 204 of the Social Security Act provides for the proper adjustment of an underpayment of disability benefits. 42 U.S.C. § 404(a)(1). The Act provides for payment to the survivors of a deceased claimant. 42 U.S.C. ~ 404(a) (1)(B). If the claimant had no spouse or children, payment is to be made to the parents of the deceased claimant. 42 U.S.C. § 404(d)(1), (2), and (3). See also 20 C.F.R. § 404.503(b). The Act defines a parent as: (2)(A) In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of inter- state personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such. 42 U.S.C. § 416(h)(2)(A).

POMS RS 00209.010 paraphrases 42 C.F.R. § 404.374 which defines a parent as

(a) You are the mother or father of the insured and would be considered his or her parent under the laws of the State where the insured had a permanent home when he or she died;

(b) You are the adoptive parent of the insured and legally adopted him or her before the insured person became 16 years old; or

(c) You are the stepparent of the insured and you married the insured's parent or adoptive parent before the insured became 16 years old. The marriage must be valid under the laws of the State where the insured had his or her permanent home when he or she died. See, § 404.303 for a definition of “permanent home”.

At the time of his death, Richard E. H~ was domiciled in Indiana. We must therefore look to the law of the State of Indiana to determine whether Richard's natural father would be considered his parent entitled to inherit from his/estate in the absence of a will.

The law of Indiana says:

29-l-2-8 Adopted children; inheritance Sec. 8. For all purposes of intestate succession, including by, through, or from a person, both lineal and collateral, 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 a child of the natural parents and of any previous adopting parents. However, if a natural parent of a child born in or out of wedlock marries the adopting parent, the adopted child shall inherit from the child's natural parent as though the child had not been adopted, and from the child's adoptive parent as though the child were the natural child. In addition, if a person who is related to a child within the sixth degree adopts such child such child shall upon the occasion of each death in the child's family have the right of inheritance through the child's natural parents or adopting parents, whichever is greater in value in each case.

Indiana Code, Annotated (West Supp. 1988). There is no relevant case law interpreting the statute as regards the right of a natural parent to inherit from a child who has been adopted. However, on its face, the statute terminates the right of a natural parent to inherit from a child who has been adopted (even though the statute might permit the child to inherit from the natural parent where the adoptive parent has married a natural parent). There is no converse language permitting inheritance by the natural parent from the child.

CONCLUSION

Under Indiana law, in the absence of a will leaving property to him Robert H~ natural father may not inherit through Robert H~ estate.


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PR 01405.017 - Indiana - 04/17/2002
Batch run: 01/27/2009
Rev:04/17/2002