PR 01410.006 California

A. PR 84-032 Inheritance Rights Of Adopted Child Donald Z~ (DWE), ~, Cheryl L~, Claimant

DATE: July 27, 1984

1. SYLLABUS

FR ADOPTION AS AFFECTING INHERITANCE RIGHTS — CALIFORNIA

A child has no intestate rights of inheritance from her natural father following her adoption by the husband by a subsequent marriage of the child's natural mother. (Z~, Donald, ~ — RAV (G~), to ARC, 07/27/84.)

2. OPINION

Your May 15, 1984 request for a legal opinion asked whether Cheryl L~ entitled to the underpayment of $2,563 that exists on the earnings record of the DWE, her natural father. In our opinion, she is not because under both California law, which controls as the domicile of the DWE at the time of death, and Michigan law, Ms. L~ retains no intestate inheritance rights in the' estate of her natural father because she was legally adopted in Michigan in 1967 by her mother's subsequent husband. Therefore, the DWE's mother, who has also claimed the underpayment, is not preempted by a superior claim of the natural daughter.

Analysis

The DWE died in California. Accordingly, California law controls the question of intestate inheritance rights in personal property in his estate. 42 U.S.C. 416(h)(2)(A).

Under California law, while the status of an adopted child is determined by the laws of the state of adoption (here, Michigan) the rules of inheritance are determined by the laws of the state of domicile at the time of death, here, California. Emory V. W~ , ~ ,RA VIII (B~) to R. Rep. SSA (T~), (12/22/64), citing Estate of Herbert, 42 Cal. App. 2d 664, 109 P.2d 729 (1941) and In re Krause's Estate, 120 Cal. App. 2d 254, 257, 260 P.2d 969, 970 (1953).

Under California law, when the relationship between a natural parent and child has been severed by an adoption of the child by another in any state, the child has no inheritance rights in the estate of the parent. Id. 1 The child therefore cannot be deemed the DWE's child for purposes of Title IT of the Social Security Act. Id.

As your request states, this is the result for California under POMS GN 00306.295. You raised the question because POMS GN 00306.295 for Michigan states that under Michigan law an adopted child retains inheritance rights in the natural father's estate if the adoption occurred before January 1, 1975.

This POMS entry does not accurately reflect present Michigan law, which previously did provide for inheritance by an adopted child from the natural parent. See SSR 73-27 (C.B. 1973); John M. C~, ~,~GC:SS Div., Cash Benefits Br. (G~) to BRSI, (12/27/72). However, present Michigan law, M.C.L.A. 700.110(3), effective July 1, 1979,

If a person was adopted or in the future is adopted, the adopted person is an heir of the adopting parents and an heir of the lineal and collateral kindred of the adopting parents and the adopted person shall no longer be an heir of his natural parent or an heir of the lineal and collateral kindred of his natural parents, except that a right, title or interest vested before this act shall not be divested by this section. (emphasis added)

Prior to 1979, a similar Michigan law was in effect since January 1, 1975. Matter of Estate of Adolphson, 403 Mich. 590, 271 N.W.2d 511, 512 (1978)

We note that the POMS entry uses this Jan. 1, 1975 date. Inheritance rights do not vest until the death of the person from whom one might inherit. Under Michigan law, descent of property of a person dying intestate is governed by the law in effect at the time of death, rather than that in effect at the' time of adoption. Estate of Adolphson, supra and cases cited therein; In re Graham, 379 Mich. 224, 100 N.W.2d 816, 818 (1967); In re Loackes' Estate, 320 Mich. 674, 32 N.W.2d 10 (1948).

The DWE died in 1983 when the above Michigan law was in effect. Therefore, the result is the same under Michigan law as under California law: Cheryl L~ may not inherit from the DWE, her natural father because their relationship was severed by her adoption by another. She is not entitled to the underpayment on the DWE's record as his child for purposes of Title II of the Social Security Act. Accord, SSR 63-28 (C.B. 1963).

We suggest that you forward this opinion to appropriate personnel for revision of the POMS entry.

1 Accord, Estate of Heard, 49 Cal. 2d 514 (Cal. S.Ct. 1957); RA IX (Miller) to Reg. Rep. SSA (Richardson) "Inquiry from State Department of Mental Hygiene .... " (2/26/65); Wilbur P. V~ , RA-V (Cohen) to R. Rep. SSA (Goetz) (6/13/61); Sonia S~ ," RA-V (Cohen) to Dist. Mgr., Pontiac, ~ MI (SSA) (4/20/59); Charles G. S~, ~,~RA-V (Cohen) to Area Office Chicago (Benjamin) (7/1/57).


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http://policy.ssa.gov/poms.nsf/lnx/1501410006
PR 01410.006 - California - 06/02/2011
Batch run: 06/02/2011
Rev:06/02/2011