You have requested our opinion as to whether the claimants, Winnie E. D~ (Winnie)
and Jonathan C. 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) were 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
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 rights of inheritance of the child as an adopted child, and
the extent of such right of inheritance, are determined not by the law of the state
where the adoption took place, but, in the distribution of personal property, by the
law of the domicile of the intestate owner 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
have the status of children relative to taking the NH's personal property and that
they are entitled to child's benefits on the NH's account pursuant to the provisions
of 42 U.S.C. § 416(h)(2)(A).