TN 1 (07-06)

PR 01410.034 New Mexico

A. PR 06-159 Inheritance Rights of Child Adopted by Grandparents in Texas When Deceased NH, Natural Mother, Domiciled in New Mexico at Time of Death (NH Nicole M. K~, SSN ~) - REPLY

DATE: June 1, 2006

1. SYLLABUS

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.

2. OPINION

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 intestacy law.

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 n