TN 3 (05-09)

PR 01410.018 Iowa

A. PR 09-085 Inheritance Rights of a Child When Parental Rights are Terminated in the State of Iowa.

DATE: March 27, 2009

1. SYLLABUS

In Iowa, a child may retain inheritance rights from a number holder whose parental rights have been terminated only if that child has not been adopted by another person.

2. OPINION

You have requested our opinion as to whether a child in the state of Iowa would retain inheritance rights from a number holder when the number holder's parental rights were terminated and 1) the child was adopted by another person, or 2) the child was not adopted. Our research indicates that a child who is adopted does not retain inheritance rights from a biological parent. However, a child who was not subsequently adopted by another person may retain inheritance rights from a biological parent even if the parent's parental rights were terminated.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child's insurance benefits. This section provides that every "child" of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. See also 20 C.F.R. § 404.362. Pursuant to the Act, the term "child" includes the child or legally adopted child of an individual. Social Security Act § 216(e). The Act directs that, in determining whether an applicant is the child of an insured individual, the Commissioner must apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured individual was domiciled at the time of death. See Social Security Act § 216(h)(2)(A). An applicant who is a "child" pursuant to state intestate succession laws and would take intestate personal property as a "child" shall be deemed the "child" of the deceased number holder under the Social Security Act. Id.

As you have noted, the Program Operations Manual System (POMS) GN 00306.170, provides that, in Iowa, an adopted child may inherit from a biological parent if the parent died on or after January 1, 1977. See POMS GN 00306.170. However, the law in Iowa was amended in 1981 to extinguish an adopted person's right of intestate succession. See 1981 Iowa Acts ch. 194, § 1. Current law states that "a lawful adoption extinguishes the right of intestate succession of an adopted person from and through the adopted person's biological parents." Iowa Code § 633.223 (2009). The only exception to the rule is that "an adoption of a person by the spouse or surviving spouse of a biological parent had no effect on the relationship for inheritance purposes between the adopted person and the biological parent." Id. Therefore, since 1981, an adopted child has no right to inherit from a biological parent.

In the case where the child has not been adopted, the termination of a biological parent's parental rights does not determine if the child can inherit from that parent. Rather, Iowa Code provides that, "[u]nless the child has been adopted, a biological child shall inherit from the child's biological mother." Iowa Code § 633.221 (2009). Similarly,

Unless the child had been adopted, a biological child inherits from the child's biological father if the evidence proving paternity is available during the father's lifetime, or if the child has been recognized by the father as his child; but the recognition must have been general and notorious, or in writing.

Iowa Code § 633.222 (2009). The specific language of the statue creates only one exception to a child's right to inherit from a biological parent; a child can inherit from a biological mother or father unless the child has been adopted. Because there is no reference to the termination of a biological parent's parental rights, it appears that a child would inherit from a biological parent whose parental rights were terminated, but the child had not been adopted. In the case where a biological father's parental rights were terminated, the child would likely still inherit because it necessary follows that in order for the father's parental rights to have been terminated, he recognized the child as his child or there was evidence of paternity. See Iowa Code § 600A (2009). Thus, the language of Iowa's Probate Code indicates that a child would inherit from a biological parent even if the parent's parental rights were terminated, so long as the child had not been adopted.

It is also significant to note that, even if parental rights were terminated, the child may also be deemed to be the "child" of the insured individual under Section 216(h)(3), as long as the child has not been adopted by some other individual. In the case of a deceased individual, a son or daughter, who is not deemed to be the "child" of the insured individual under section 216(h)(2), could still be deemed to be the insured individual's "child" if, inter alia, the insured was decreed by a court to be the mother or father of the applicant and the court decree or order was entered before the death of the insured individual. See Social Security Act § 216(h)(3)(C)(i)(II). In a termination of parental rights case, an individual must be decreed by the court to be the mother or father of the child before the individual's rights can be terminated. Thus, a son or daughter of an insured individual whose parental rights were terminated could also be deemed a "child" pursuant to Section 216(h)(3)(C)(i)(II), so long as the child had not been adopted.

We recommend that the POMS be revised to reflect the change in Iowa law regarding an adopted child's right to inherit from biological parents in Iowa. We also recommend that questions pertaining to specific factual scenarios be submitted for legal opinions.

Kristi A. S~
Chief Counsel, Region VII
By: _______________
Anne M. M~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501410018
PR 01410.018 - Iowa - 05/18/2009
Batch run: 11/29/2012
Rev:05/18/2009