Under New Mexico intestacy law, a child adopted away from the number holder no longer
has the right to inherit from that number holder. Based on this, the claimant cannot
be entitled to survivor's benefits on the record of the deceased number holder.
This memorandum is in response to your request for an opinion on whether a child adopted
in Texas by her grandparents, while her natural mother was still living, is entitled
to survivor benefits on the account of her deceased natural mother who died while
domiciled in New Mexico. In our opinion, the adopted child is not entitled to Social
Security survivor benefits (survivor benefits) on the account of her deceased natural
mother because the adopted child is not deemed to be the natural mother's child under
the Social Security Act (the Act).
As we understand the facts, Burckhard K. K~ and Irma K~ are the parents of number
holder Nicole M. K~ (Ms. K~). Ms. K~ gave birth to Erika N. K~ (Erika) on July 5,
1988. Burckhard K. K~ and Irma K~ (Adopting Parents) filed with the Bexar County,
Texas District Court (Texas Court) a petition to terminate the parent-child relationship
between Ms. K~ and Erika and to request Erika's adoption. In support of the petition
to terminate the parent-child relationship, the Adopting Parents filed with the Texas
Court an irrevocable affidavit of voluntary relinquishment of parental rights that
was executed by Ms. K~, where Ms. K~ agreed to terminate her parent-child relationship
with Erika. On May 22, 1989, the Texas Court issued a Decree Terminating Parental
Rights and Granting Adoption of Stepchild (Adoption Decree), which terminated the
parent-child relationship between Erika and Ms. K~, granted the adoption request,
and established the parent-child relationship between the Adopting Parents and Erika.
On February 9, 2005, Ms. K~ died while domiciled in Albuquerque, New Mexico. Ms. K~
lived with the Adopting Parents and Erika at the time of her death. In February 1995,
the Social Security Administration (Agency) approved an application for survivor benefits,
which was filed by the Adopting Parents on behalf of Erika, and awarded Erika with
survivor benefits on Ms. K~'s account. The Agency subsequently terminated the survivor
benefits awarded to Erika because the Agency determined that the award was made in
error. As a result, the Adopting Parents filed with the Agency a request to reconsider
the termination of Erika's survivor benefits.
Under the Act, a dependent child may be entitled to survivor benefits on the earnings
record of an insured person who has died. The Act, § 202(d)(1); 42 U.S.C. § 402(d)(1);
20 C.F.R. § 404.350 (2005). The term "child" includes a natural child. The Act, §
216(e)(1); 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. To determine whether an applicant
is the child of an insured individual for Social Security purposes, the Agency looks
to the law governing the devolution of intestate personal property that was in effect
in the State in which the insured worker was domiciled at the time of his or her death.
The Act, § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). An applicant
who would have the same status relative to taking intestate personal property as the
deceased individual's child, according to such state law, shall be deemed a child
of the insured individual for Social Security purposes. The Act, § 216(h)(2)(A); 42
U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). In this case, the insured wage earner,
Ms. K~, was domiciled in New Mexico at the time of her death. Therefore, the Agency
must determine whether Erika could inherit Ms. K~'s personal property under New Mexico
The New Mexico Uniform Probate Code applies to the estate of a decedent who dies domiciled
in New Mexico. See N.M. Stat. Ann. § 45-2-401 (2005). In New Mexico, a decedent's estate not disposed
of by will passes by intestate succession to the decedent's heirs. See N.M. Stat. Ann. § 45-2-101. New Mexico defines the term "heirs" as persons who are
entitled under the statutes of intestate succession to a decedent's property. See N.M. Stat. Ann. § 45-1-201(20). In New Mexico, a "child" is an individual entitled
to take by intestate succession from the parent whose relationship is involved. See N.M. Stat. Ann. § 45-1-201(5). An adopted individual is the child of his or her adopting
parents and is not the child of his or her natural parents. See id. at § 45-2-114.
You request an opinion regarding whether Erika is entitled to survivor benefits on
the account of her deceased natural mother, Ms. K~, who died while domiciled in New
Mexico. See N.M. Stat. Ann. § 40-11-4 (2005) (stating that the natural mother may be established
by proof of her having given birth to the child). If under New Mexico intestacy law
Erika could inherit personal property from Ms. K~, Erika would then be eligible for
Social Security benefits on Ms. K~'s account. See the Act, § 216(d)(1); 42 U.S.C. § 416(d)(1); 20 C.F.R. § 404.355(a)(1).
As noted above, on May 22, 1989, the Texas Court terminated Ms. K~'s parental rights
to Erika, established the parent-child relationship between the Adopting Parents and
Erika, and granted Erika's adoption to the Adopting Parents. Under New Mexico law,
an adoption severs the legal rights and privileges between the adopted child and the
natural parents. Aldridge v. Mims, 884 P.2d 817, 819 (N.M. Ct. App. 1994) (quoting In re Estate of Holt, 622 P.2d 1032, 1034 (N.M. 1981). Under New Mexico law, an adopted child also becomes
the child of the adopting parents as if the adopted child had been their natural child,
"with the same rights of a natural child, all to the exclusion of the natural parents."
Aldridge, 884 P.2d at 819 (citations omitted). New Mexico's policy is to "treat an adopted
child as the natural child of the adopting parents . . . and to terminate in every
respect, when considering rights and obligations, the relationship with the child's
natural parents." See Estate of Shehady, 491 P.2d 528, 529 (N.M. 171). In Estate of Shehady, the court stated that even though it is not expressly provided by statute, an adopted
child may not inherit from his or her natural parents. See id. at 530-531.
Under New Mexico intestacy law, Erika lost her right to inherit from Ms. K~, her natural
mother, because the Texas Court terminated her parent-child relationship to Ms. K~
and granted her adoption by the Adopting Parents, thereby establishing a new parent-child
relationship. Therefore, under the Act, Erika is not deemed to be Ms. K~'s child and
is not entitled to survivor benefits on Ms. K~'s account.
Tina M. W~
Regional Chief Counsel
Assistant Regional Counsel