TN 4 (02-14)

PR 01410.041 Oregon

A. PR 14-026 Child’s Survivor Benefits

DATE: January 22, 2014

1. SYLLABUS

Oregon intestacy law provides that an adopted person shall no longer be treated as the child of his or her natural parents for all purposes of intestate succession. In this case, an individual adopted the NH's child on November 1, 2010, in Colorado, on the same day the NH died in Oregon. Oregon courts would give full faith and credit to the Colorado adoption decree. The adoption occurred before the NH's death and ended the parent-child relationship between the NH and the child. The child, therefore, could not inherit from the NH and is not the child of the NH for the purposes of Title II survivor benefits.

2. OPINION

QUESTION PRESENTED

Whether KA can be entitled to child’s survivor benefits on the account of deceased number holder Mr. SR (the NH).

BRIEF ANSWER

Because KA was adopted by Mr. FA prior to the NH’s death, she was not able to inherit from the NH under Oregon law. Thus, for the purposes of child’s survivor benefits, KA was not the NH’s child and was not dependent on the NH at the time of his death. Therefore, she cannot be entitled to benefits.

SUMMARY OF FACTS

KA was born in 1998, in Arizona, to the NH and Ms. T. On November 1, 2010, the Combined Court of Jefferson County, Colorado, issued a final decree of adoption of KA for Mr. FA, Ms. T’s spouse. This decree also changed KA’s last name to that of Mr. FA. Also on November 1, 2010, the NH died in Oregon at 6:50 p.m. The death certificate listed the NH’s residence as a city in Oregon.  In January 2011, the State of Arizona Office of Vital Records issued a copy of KA’s birth certificate, listing her father as Mr. FA.

ANALYSIS

In order to be entitled to survivor’s benefits under Title II of the Social Security Act (the Act), a claimant must show that she is

  1. a child of an individual who dies a fully or currently insured individual; and

  2. dependent upon the insured individual either at the time of his death or, if the insured individual was entitled to disability insurance benefits when he died, at the beginning of his period of disability.

42 U.S.C. § 402(d)(1).  If either of these conditions is absent, the claimant cannot be entitled to child’s survivor benefits.

  1. KA is not the NH’s “child” for the purposes of Title II.

    For the purposes of child’s survivor benefits, the Act defines a “child” as “the child or legally adopted child of an individual.” 42 U.S.C. § 416(e). The Act further explains that, when determining who is a “child” for the purposes of Title II, SSA shall apply the law for the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); see Astrue v. Capato, 132 S. Ct. 2021, 2033 (2012).

    In this case, at the time of his death, the NH was domiciled in Oregon. The NH’s death certificate indicated that he resided in Oregon.  Though a person’s residence is not necessarily the same as his domicile, “[t]he place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.”  District of Columbia v. Murphy, 314 U.S. 441, 455 (1941). Accordingly, for this opinion, we have treated Oregon as the NH’s domicile. If additional evidence shows otherwise, our analysis may change. Therefore, if KA were entitled to inherit as the NH’s child under Oregon law, she would be the NH’s “child.”  42 U.S.C. § 416(h)(2)(A).

    1. Oregon courts will give full faith and credit to the Colorado adoption decree.

      Under the Full Faith and Credit Clause of the United States Constitution, as enabled under the Full Faith and Credit Act, judicial orders, including decrees of adoption, “shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” 28 U.S.C. § 1738; see U.S. Const., Art. I, § 1; Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 80–81 (1984). Additionally, Oregon law provides that the effect of a judicial record of any other state or territory of the United States is the same in Oregon as the place where it was made.  Or. Rev. Stat. § 43.180; see Picker v. Vollenhover, 290 P.2d 789, 794 (Ore. 1955) (noting similar effect of Oregon statute and Full Faith and Credit Clause). 

      The preclusive effect of full faith and credit depends on the validity of the judgment in question; that is, the court issuing the judgment must have had jurisdiction to do so. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 615 (1947) (“If the court of the State which rendered the judgment had no jurisdiction over the person or the subject matter, the jurisdictional infirmity is not saved by the Full Faith and Credit Clause.”). Under the Colorado Children’s Code, jurisdiction over adoption proceedings lies in the juvenile court. Colo. Rev. Stat. § 19-1-104(1)(g) (2012). The law further states that “juvenile court” means “the juvenile court of the city and county of Denver or the juvenile division of the district court outside of the city and county of Denver.” Colo. Rev. Stat. § 19-1-103(70).  The decree in this instance came from Jefferson County; thus, the juvenile court here would be part of the Jefferson County district court. The decree indicates that it was issued by the district court; absent any indication to the contrary, one can reasonably assume that the decree issued from the juvenile division. One indicator that this decree likely came from the juvenile division is the docket number, which contains a “J,” likely indicating “juvenile.”  Therefore, because the court had jurisdiction to issue this decree, the Oregon courts must give the adoption decree the same effect that it had in Colorado. 

      The effect of this decree under Colorado law is to sever the legal parent–child relationship between the NH and KA. Colo. Rev. Stat. § 19-5-211 (“After the entry of a final decree of adoption, the person adopted shall be, to all intents and purposes, the child of the petitioner.”). This decree became effective on the date it was signed. Colo. R. Civ. P. 6(a).  Accordingly, Oregon must give this decree full faith and credit and treat KA as the child of Mr. FA as of the execution of the final adoption decree on November 1, 2010.

    2. Under Oregon intestacy law, KA cannot inherit from the NH.

      Oregon’s intestacy law allocates, in certain instances, a portion of a decedent’s estate to his “issue,” which is defined as a lineal descendent. Ore. Rev. Stat. §§ 111.005(22), 112.045(1).  The law also provides, however, that an adopted person shall cease to be treated as the child of her natural parents for all purposes of intestate succession. Or. Rev. Stat. § 112.175(2) (2011) (Status of Adopted Persons).  Thus, even if a person were a decedent’s “issue,” that person would cease to be treated as such upon adoption by another individual. The relationship that exists at the time of the decedent’s death determines how the intestate estate passes. Ore. Rev. Stat. § 112.075. Therefore, an adoption that occurs after the decedent’s death does not change the status of the child relative to the decedent.

      In this case, if the NH died before the adoption became final, KA would be his issue for the purposes of intestate succession since the adoption would not have changed her status relative to the NH at the time of his death. If, however, the adoption were final before the NH’s death, KA would be the adoptive child of Mr. FA at the time of the NH’s death, and Oregon law would prohibit her from inheriting from the NH. The NH’s death certificate indicates that he died at 6:50 p.m. on November 1, 2010.  While the adoption decree became effective on November 1, 2010, the decree does not indicate what time it was signed.  Nevertheless, one can reasonably assume that the signing happened during court hours. Local rules for the Jefferson County Combined Courts state that court business hours shall be from 8:00 a.m. to 5:00 p.m. Colo. 1st Jud. Dist. L.R. 3(a).  Thus, even if the decree were signed at the close of business on November 1, 2010, it preceded the NH’s death by over two hours. Note that Jefferson County, Colorado is in the Mountain Time Zone, while Oregon is in the Pacific Time Zone. Accordingly, absent any evidence to the contrary showing that the adoption occurred after the NH’s death, Mr. FA’s adoption of KA during the NH’s lifetime severed the parent–child relationship between KA and the NH. KA was thus precluded from inheriting as the NH’s issue, and, therefore, she is not the “child” of the NH for the purposes of Title II survivor’s benefits. 42 U.S.C. § 416(h)(2)(A). There are two alternate means of determining status as a “child” under 42 U.S.C. §§ 416(h)(2)(B) and 416(h)(3). The first requires that the parents of the claimant to have undergone a marriage ceremony that, due to a defect, made the child unable to inherit under State law. 42 U.S.C. § 416(h)(2)(B). The second requires that the insured had, during his lifetime, acknowledged the child as his own in writing, been decreed by a court to be the parent of the child, or been ordered by a court to contribute to the support of the claimant. 42 U.S.C. § 416(h)(3). In both cases, however, the claimant must be the “son or daughter” of the insured individual. 42 U.S.C. §§ 416(h)(2)(A), 416(h)(3).  KA’s adoption severed any parent–child relationship, making these provisions inapplicable.

  2. KA was not dependent on the NH at the time of his death.

    The second prong of the analysis for entitlement to child’s survivor benefits is that the child was dependent on the insured at the time of the insured’s death. 42 U.S.C. § 402(d)(1). Though the analysis of KA’s status as a “child” shows she is not entitled to benefits, we addressed the question of her dependency on the NH to provide a comprehensive answer.  SSA deems a natural child dependent on the insured person if the child can inherit under State intestacy law. 20 C.F.R. § 404.361(a) (incorporating by reference 20 C.F.R. § 404.355).  If, however, the natural child is legally adopted by someone other than the insured, the child can only be dependent on the insured if the insured was living with or contributing support to the child when the child applied for benefits, when the insured died, or when the insured became entitled to disability or old-age benefits (if applicable). 20 C.F.R. § 404.361(b).

    Here, as discussed above, KA was not able to inherit under State law. Therefore, SSA would not deem her dependent.  Furthermore, under these facts, the NH was neither living with KA nor contributing to her support at the time of his death. If contrary evidence were to come to light, this analysis could change. However, under the facts as represented to us, KA was not dependent on the NH.

CONCLUSION

KA was not the NH’s “child” under Title II because she was adopted before the NH died and, thus, was not able to inherit as the NH’s child under the intestacy laws of the NH’s domicile at the time of his death. Furthermore, KA was not dependent on the NH at the time of his death because Mr. FA adopted her and there is no indication that the NH was contributing to her support. For these reasons, KA is not entitled to child’s survivor benefits.

B. PR 03-179 Adoption after Age 21 - Ricky, SSN ~ Confidential Communication

DATE: August 29, 2003

1. SYLLABUS

The claimant for disabled adult child benefits based on his natural mother's and father's records was adopted by someone else during his natural parents' lifetimes. Although the claimant has asserted that he changed his surname back to his natural father's, and assumed that this annulled the adoption, he has presented no evidence relating to the name change or supporting his assertion that the adoption was annulled. Absent evidence that the adoption was set aside within a year of the adoption decree, the adoption is legally binding. Under Oregon law, adoption terminates a child's inheritance rights with respect to his natural parent. Ricky was not living with or receiving contributions from his natural parents at the applicable time. Therefore, he is not entitled to child's benefits on their records.

2. OPINION

You have asked whether a claimant has been legally adopted.

Factual Background

On May 29, 2003, Ricky applied for child's insurance benefits on Fleta s and Clarence's earnings records (Fleta's account number is ~ and Clarence's account number is ~). Ricky's Certificate of Birth shows Fleta as the natural mother, and Clarence as the natural father. Ricky is 44 years old (his date of birth is June ), and he alleges that he became disabled on June 1, 1977. Fleta and Clarence are both receiving disability benefits.

On August 28, 1984, Ricky was adopted by William and his name was changed to Ricky. The adoption was approved by the Circuit Court of the State of Washington for the County of Multnomah. William is now deceased.

Ricky has asserted that he petitioned a court in the State of Illinois to change his name back to Ricky, and he assumed this annulled the adoption. Ricky has not produced any evidence relating to the name change or supporting his assertion that the adoption was annulled.

DISCUSSION

A child age 18 or older may receive benefits based on disability if: (1) he has an impairment or combination of impairments that meets the definition of disability for adults; (2) the disability began before age 22; and (3) the adult child's natural parent worked long enough to be insured and is receiving retirement or disability benefits or is deceased. 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. § 404.350(a).

When the natural child of the insured has been legally adopted by someone else during the insured's lifetime and after the adoption applies for child's insurance benefits on the insured's earnings records, entitlement to benefits can only be established if the child can demonstrate that he was dependent upon the insured. 20 C.F.R. §§ 404.360 and 404.361. There are three ways a child adopted by someone else can establish dependency on his or her natural parent:

[Y]ou are considered dependent upon the insured only if the insured was either living with you or contributing to your support at one of the following times: (i) When you applied; (ii) When the insured died; or (iii) If the insured had a period of disability that lasted until he or she became entitled to disability or old-age benefits or died, at the beginning of the period of disability or at the time he or she became entitled to disability or old-age benefits.

20 C.F.R. § 404.361(b).

Program Operations Manual System GN 00306.165 states:

A natural or legally adopted child of the NH [number holder] who was adopted by another person during the NH's lifetime (see GN 00306.165B.) is the NH's child for benefit purposes only if:

  • The adoption did not cut off the child's inheritance rights in the NH's estate under applicable State law; and

  • The NH was living with or contributing to the child's support at one of the points set forth in GN 00306.007 [life cases]1 or GN 00306.008 [death cases].

NOTE: Adoption by someone other than the NH does not terminate a child's entitlement. If the adoption occurred before the child's application is filed, but the application has retroactivity to a point before adoption at which all entitlement requirements are met, the adoption has no effect on determining the child's entitlement.

GN 00306.165B states: "The provision in GN 00306.165A. does not apply if the adoption occurred after an applicable point at which the child could be deemed dependent on the NH."

Oregon Adoption Laws

Ricky's adoption took place in the State of Oregon, so we look to Oregon law to see if the adoption was valid.

Consent when person to be adopted has reach age of majority.

If the person to be adopted is legally married or is 18 years of age or older, the written consent of the person to be adopted may be held by the court to be sufficient without the necessity for the consent of any other person to the adoption.

Because of Ricky's age at the time of the adoption (age 25), he did not need his natural parents' consent to the adoption.

ORS 109.381 provides, in pertinent part:

(2) Except for such right of appeal as may be provided by law, decrees of adoption shall be binding and conclusive upon all parties to the proceeding. No party nor anyone claiming by, through or under a party to the adoption proceeding, may for any reason, either by collateral or direct proceedings, question the validity of a decree of adoption entered by a court of competent jurisdiction of this or any other state.

(3) After the expiration of one year from the entry of a decree of adoption in this state the validity of the adoption shall be binding on all persons, and it shall be conclusively presumed that the child's natural parents and all other persons who might claim to have any right to, or over the child, have abandoned the child and consented to the entry of such decree of adoption, and that the child became the lawful child of the adoptive parents or parent at the time when the decree of adoption was rendered, all irrespective of jurisdictional or other defects in the adoption proceeding; after the expiration of such one-year period no one may questions the validity of the adoption for any reasons, either through collateral or direct proceedings, and all persons shall be bound thereby; provided, however, the provisions of this subsection shall not affect such right of appeal from a decree of adoption as may be provided by law.

We have no evidence that the adoption was set aside within a year of the adoption decree, so the adoption is legally binding.

The Oregon statutes explain the effect of a legally binding adoption. ORS 109.050 provides:

An adopted child bears the same relation to adoptive parents and their kindred in every respect pertaining to the relation of parent and child as the adopted child would if the adopted child were the natural child of such parents.

ORS 109.041, under the chapter heading of "Rights and Relationships of Parent and Child," states:

(1) The effect of a decree of adoption heretofore or hereafter granted by a court of this state shall be that the relationship, rights and obligations between an adopted person and descendents of the adopted person and

  1. The adoptive parents of the adopted person, their descendants and kindred,

  2. The natural parents of the adopted person, their descendants and kindred

shall be the same to all legal intents and purposes after the entry of such decree as if the adopted person had been born in lawful wedlock to the adoptive parents and had not been born to the natural parents.

This statute is supplemented by ORS 112.175, under the chapter heading of "Intestate Succession and Wills Status of Adopted Persons," which states:

  1. An adopted person, the issue and kindred of the adopted person shall take by intestate succession from the adoptive parents, their issue and kindred, and the adoptive parents, their issue and kindred shall take by intestate succession from the adopted person, the issue and kindred of the adopted person, as though the adopted person were the natural child of the adoptive parents

  2. An adopted person shall cease to be treated as the child of the person's natural parents for all purposes of intestate succession by the adopted person, the issue and kindred of the adopted person and the natural parents, their issue and kindred.2

    Based on these statutes, Ricky has been legally adopted by William, and is treated as if he is William's natural child and can inherit William's estate. He ceased to be treated as Fleta and Clarence's natural child and the adoption cut off his inheritance rights to Fleta and Clarence's estate. See POMS GN 00306.165.

    Finally, it does not appear that Fleta or Clarence was living with or contributing to Ricky's support at one of the points specified in 20 C.F.R. § 404.361(b), POMS GN 00306.007. Ricky's application has a Portland, Oregon mailing address. SSA's computer records show that Fleta lives in Phoenix, Arizona, and that Clarence lives in Tulsa, Oklahoma.

    CONCLUSION

Based on the evidence, you would be justified in denying Ricky's claim for child insurance benefits on Fleta's and Clarence's earnings records.

C. PR 82-022 Inheritance Rights - Ohio: Maxine, SSN ~

DATE: July 9, 1982

1. SYLLABUS

INHERITANCE RIGHTS — By An Adopted Child — Illinois SYLLABUS

Barring any evidence of relinquishment or forfeiture of rights by a natural parent, adoption of a child by a step-parent who is the spouse of the natural parent neither affects or terminates the rights and obligations of the natural parent to the child, nor extinguishes the inheritance rights as between the natural parent and child. (Maxine - RA V (E~) OGC to ARC - 7/9/s2)

2. OPINION

You have inquired in your memorandum concerning the above captioned matter as to whether Randall (hereafter Randall) has retained "inheritance rights from his natural mother" despite his adoption by Richard, his mother's husband (i.e., Randall's stepfather). The pertinent facts as we understand them, based on our review of the three documents with which you have provided us (i.e., memorandum dated 3/18/81 from District Office, Lima, Ohio; Application for Child's Insurance Benefits; and Randall's birth certificate), are as follows: Randall was born to Maxine) on October. We have no information whatsoever concerning the natural father. Sometime following Randall's birth, his mother (Maxine) married Richard, who subsequently allegedly adopted Randall. 3

Adoption is a legal proceeding by means of which the relationship of parent and child is created between persons who are not so related by nature. In re Adoption of G~, 63 Ohio Misc. 22, 409 N.E.2d 1067 (1980). Pursuant to Ohio law, the effect of adoption is:

(A) * * * (1) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological or other legal parents of the adopted person of all parental rights and responsibilities, and to terminate all legal relationships between the adopted person and his relatives, including his biological or other legal parents, so that the adopted per- son thereafter is a stranger to his former relatives for all purposes including inheritance . Ohio Rev. Code Ann. section 3107.15 (Page) (emphasis added).

This statutory language clearly indicates, barring any evidence of the relinquishment or forfeiture of the rights of a natural parent, that adoption of a child by a stepparent (i.e., the spouse of a natural parent) neither affects or terminates the rights and obligations of the natural parent to the child, nor extinguishes the inheritance rights as between the natural parent (i.e., the spouse of the adopting parent) and the child. See Mancino v. Smith, 201N.E.2d 93 (1964). Thus, in the present case, there being no evidence or indication that Maxine either relinquished or forfeited her rights as Randall's natural parent, we have concluded that Randall's right to inherit from and through his mother has not been affected by his adoption by Richard.

Furthermore, in light of the aforementioned statutory language, we do not believe it is necessary to submit for our consideration and review cases which simply involve adoption of a child by a stepparent (i.e., the spouse of the natural parent). (See POMS section GN 00306. 300, formerly CM section 2435.5.) You should, however, continue to submit matters involving more complicated factual situations or those in which there is reason to believe that the natural parent's rights may have been terminated.

D. PR 82-022 Inheritance Rights - Ohio: Maxine, SSN ~

DATE: July 9, 1982

1. SYLLABUS

INHERITANCE RIGHTS — By An Adopted Child — Illinois SYLLABUS

Barring any evidence of relinquishment or forfeiture of rights by a natural parent, adoption of a child by a step-parent who is the spouse of the natural parent neither affects or terminates the rights and obligations of the natural parent to the child, nor extinguishes the inheritance rights as between the natural parent and child. (Maxine- RA V (E~) OGC to ARC - 7/9/s2)

2. OPINION

You have inquired in your memorandum concerning the above captioned matter as to whether Randall (hereafter Randall) has retained "inheritance rights from his natural mother" despite his adoption by Richard, his mother's husband (i.e., Randall's stepfather). The pertinent facts as we understand them, based on our review of the three documents with which you have provided us (i.e., memorandum dated 3/18/81 from District Office, Lima, Ohio; Application for Child's Insurance Benefits; and Randall's birth certificate), are as follows: Randall was born to Maxine on October. We have no information whatsoever concerning the natural father. Sometime following Randall's birth, his mother (Maxine) married Richard, who subsequently allegedly adopted Randall. 4

Adoption is a legal proceeding by means of which the relationship of parent and child is created between persons who are not so related by nature. In re Adoption of G~, 63 Ohio Misc. 22, 409 N.E.2d 1067 (1980). Pursuant to Ohio law, the effect of adoption is:

(A) * * * (1) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological or other legal parents of the adopted person of all parental rights and responsibilities, and to terminate all legal relationships between the adopted person and his relatives, including his biological or other legal parents, so that the adopted per- son thereafter is a stranger to his former relatives for all purposes including inheritance. Ohio Rev. Code Ann. section 3107.15 (Page) (emphasis added).

This statutory language clearly indicates, barring any evidence of the relinquishment or forfeiture of the rights of a natural parent, that adoption of a child by a stepparent (i.e., the spouse of a natural parent) neither affects or terminates the rights and obligations of the natural parent to the child, nor extinguishes the inheritance rights as between the natural parent (i.e., the spouse of the adopting parent) and the child. See Mancino v. Smith, 201N.E.2d 93 (1964). Thus, in the present case, there being no evidence or indication that Maxine V~ either relinquished or forfeited her rights as Randall's natural parent, we have concluded that Randall's right to inherit from and through his mother has not been affected by his adoption by Richard.

Furthermore, in light of the aforementioned statutory language, we do not believe it is necessary to submit for our consideration and review cases which simply involve adoption of a child by a stepparent (i.e., the spouse of the natural parent). (See POMS section GN 00306.300, formerly CM section 2435.5.) You should, however, continue to submit matters involving more complicated factual situations or those in which there is reason to believe that the natural parent's rights may have been terminated.


Footnotes:

[1]

GN 00306.007 states that dependency may be met: * At the beginning of the period of disability (if the NH had several periods of disability, only the beginning of the last period can be used);* At the time the NH last became entitled to a DIB; or* At the time the child's application is filed.

[2]

There are two exceptions to paragraph (2), but there are not applicable here.

[3]

We have not seen or reviewed any of the papers filed by or, with the court in connection with the aforementioned alleged adoption.

[4]

We have not seen or reviewed any of the papers filed by or, with the court in connection with the aforementioned alleged adoption.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501410041
PR 01410.041 - Oregon - 02/10/2014
Batch run: 02/10/2014
Rev:02/10/2014