PR 01410.005 Arkansas

A. PR 01-038 Child's Inheritance Rights under Mississippi Law after Adoption Terminated Inheritance Rights under Arkansas Law, NH Jerry W. D~

DATE: July 27, 2000

1. SYLLABUS

Although the NH's children were adopted by their mother's new husband in Arkansas, where adoption terminates parent-child inheritance rights, the law of descent and distribution of Mississippi (where the NH was domiciled at death) controls. Therefore, the deceased NH's children may inherit from the NH under Mississippi law.

NOTE: In order to be entitled to child's benefits based on the NH's record, the children must meet the living-with or contributions requirement set forth in section 202(d)(3) of the Social Security Act, since they were adopted by someone else during his lifetime.

2. OPINION

You have requested our opinion as to whether the claimants, Winnie E. D~ (Winnie) and Jonathan Caleb D~ (Jonathan), are entitled to child's insurance benefits on the record of their natural father, deceased number holder (NH) Jerry W. D~. It is our opinion that, although their status as adopted children is determined by Arkansas law, the state of adoption, Winnie and Jonathan may inherit the NH's intestate personal property under the law of the NH's domicile at the time of death, Mississippi, and they are entitled to child's benefits.

The facts presented in this claim are that on May 19, 2000, Vickie D~ (Vickie) filed a claim for child's benefits on behalf of her children, Winnie and Jonathan, based on the NH's earnings record. The NH and Vickie were married and residing in Arkansas at the time of Winnie and Jonathan's births, in 1984 and 1985, respectively. The NH and Vickie obtained an Arkansas divorce in 1988. On April 14, 1990, Vickie and Stanley B. O~ (Stanley) married in Arkansas, and on April 20, 1990, Stanley petitioned the Probate Court of Union County, Arkansas, for the adoption of Winnie and Jonathan. Arkansas birth certificates were apparently amended and show Stanley as the children's father. Stanley and Vickie divorced in 1994, and Stanley pays child support. The NH died domiciled in Mississippi. You have noted that under Mississippi law, adoption does not terminate inheritance rights between the parent and child; however, the claimants were adopted in Arkansas and, under Arkansas law, adoption terminates parent-child inheritance rights.

As provided in 42 U.S.C. § 416(h)(2)(A), an applicant shall be deemed to be the child of a fully or currently insured individual if the courts of the State in which such insured was domiciled at the time of death would find that the applicant has the same status as a child relative to taking the intestate personal property of the insured. Inasmuch as the insured died domiciled in Mississippi, Mississippi law is controlling.

Generally speaking, while the status of an adopted child is fixed by the law of the state of adoption, the inheritance rights of the adopted child are determined, in the distribution of personal property, by the law of the domicile of the deceased at the time of his death. This rule is applied regardless of whether the local law enlarges the rights of the adopted child as fixed by the law of the state where the adoption took place and confers rights of inheritance where none existed in the state of adoption or diminishes such rights. 2 Am. Jur. 2d Adoption § 196.

This general rule is recognized in Mississippi. In a similar case, Warren v. Foster, 450 So. 2d 786 (Miss. 1984), the Mississippi Supreme Court held that despite the adoption of the decedent's son in Tennessee, under whose law an adopted child is divested of any right of inheritance from his natural father, the law of descent and distribution of Mississippi, where the decedent died, controlled, and the decedent's son was entitled to inherit the decedent's estate. The court rejected the Warren estate's Full Faith and Credit Clause argument and held, at 787, that Mississippi law, and not Tennessee law, applied because the "general rule is that ... the law of the decedent's domicile controls the extent or the fact of the right of inheritance when in conflict with the law creating the status." See Estate of Jones v. Howell, 687 So. 2d 1171 (Miss. 1996); Alack v. Phelps, 230 So. 2d 789 (Miss. 1970).

Based on the foregoing, it is our opinion that under Mississippi law, Winnie and Jonathan are entitled to child's benefits on the NH's account pursuant to the provisions of 42 U.S.C. § 416(h)(2)(A).


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PR 01410.005 - Arkansas - 02/15/2008
Batch run: 01/27/2009
Rev:02/15/2008