PR 01410.047 Tennessee
A. PR 09-105 Adopted Children's Eligibility for Benefits on Record of the Natural Father - Tennessee Claimants: Nicholas P. S~ and Jacob R. S~ Number Holder: John R. C~, Jr.
DATE: May 12, 2009
Tennessee law severs the relationship between an adopted child and his or her natural parent upon adoption by another person. Accordingly, in this case where the children have filed for benefits on the record of the number holder after having been adopted the children would not be considered as children of the number holder under State law.
Additionally, since the number holder is no longer contributing to the children's support, we no longer can find them to be eligibile under the Federal guidelines in Section 216(h)(3)(C) of the Act.
You have asked whether adopted children can receive child's insurance benefits on the earnings record of their natural father.
The adopted children cannot receive child's insurance benefits on the earnings record of their natural father because the relationship between the children and their natural father was severed upon their adoption, and the evidence does not indicate that their natural father was living with or contributing to their support at the time of his death.
Nicholas S~ (DOB: 9/28/99) and Jacob S~ (DOB: 12/30/00) (Claimants) filed for child's insurance benefits as the surviving children of John R. C~, Jr., the number holder (NH). NH and Claimants' mother were married at the time of Claimants' birth but divorced in January 2001. Claimants' mother later married Bradley D. S~, and Mr. S~ legally adopted Claimants in March 25, 2008. On June 6, 2008, the Tennessee Department of Health and Human Services modified NH's current support to $0 based on Claimants' adoption by Mr. S~. NH died on January 24, 2009, while domiciled in Tennessee.
To qualify for child's insurance benefits on the earnings record of an insured individual who has died, a claimant must be the insured individual's "child." See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2008). "Child" may include the natural child, adopted child, stepchild, or in some cases, grandchild, of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2008). A claimant may be eligible for benefits as the natural child of a deceased insured individual if he or she could inherit a child's share of the insured individual's personal property under the laws of the state in which the insured individual was domiciled at the time of his or her death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2008). Because NH died in Tennessee, we apply Tennessee law to determine if Claimants are the children of NH for the purposes of intestate succession under section 216(h)(2)(A) of the Act.
Program and Operations Manual System (POMS) GN 00306.165A states that a child of the number holder who was adopted by another person during the number holder's lifetime is the number holder's child for benefit purposes only if the adoption did not cut off the child's inheritance rights in the number holder's estate under applicable State law. Tennessee law severs the relationship between an adopted child and his or her natural parent upon adoption by another person. In pertinent part, Tennessee law defines a parent and child relationship for the purposes of intestate succession as follows:
(a) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent . . . .
TENN. CODE ANN. § 31-2-105 (2008). In reviewing the legislative history of section 31-2-105, the Tennessee Court of Appeals concluded that the General Assembly "consciously terminated the inheritance rights of the parent who has relinquished their rights." Wicks v. Veteran's Steel Erection Co., No. 03A01-9510-CV00363, 1996 WL 87447, at *1 (Tenn. Ct. App. Feb. 26, 1996). Accordingly, by the terms of Tennessee's inheritance laws, "an adopted child cannot inherit from a natural parent who has consented to his/her child's adoption." Id. Thus, under Tennessee law, Claimants are not NH's children for the purposes of intestate succession and are not eligible for child's insurance benefits on NH's earnings record under section 216(h)(2)(A) of the Act.
However, a child claimant who does not satisfy the requirements of section 216(h)(2)(A) still may be deemed the child of a deceased insured individual if the child satisfies the criteria in section 216(h)(3)(C) of the Act. Under section 216(h)(3)(C)(i), a child who is the son or daughter of a deceased insured individual will be deemed to be the child of the insured individual if the insured individual acknowledged the child in writing, had been decreed by a court to be the mother or father of the child, or had been ordered by a court to contribute to the support of the child because the child was his or her son or daughter. See 20 C.F.R § 404.355(a)(3) (2008). Although there had previously been a court order requiring NH to contribute to Claimants' support, this order was modified in June 2008 as a result of Claimants' adoption by Mr. S~. Additionally, there is no evidence that NH acknowledged Claimants as his sons after his parental rights were severed by the adoption. As a result, Claimants would not be deemed the children of NH under section 216(h)(3)(C)(i) of the Act.
Additionally, a child who is the son or daughter of a deceased insured individual will be deemed to be the child of the insured individual if the insured individual is shown by evidence satisfactory to the Commissioner to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died. See Act § 216(h)(3)(C)(ii); 20 C.F.R. § 404.361(b) (2008); POMS GN 00306.008. Contributions for support should be regular, substantial, and consistent contributions in cash or in kind and in an amount that is a reasonable factor in the reasonable cost of the child's support. See 20 C.F.R. § 404.366 (2008); POMS RS 01301.005A. Claimants were not living with NH when he died. Regarding contributions for support, the evidence provided indicates NH had not contributed to Claimants' support since they were adopted by Mr. S~ in March 2008, more than eight months prior to NH's death. Accordingly, the evidence submitted does not appear to establish that NH was contributing to Claimants' support at the time of his death. Thus, the evidence does not show that Claimants could be deemed the children of NH under section 216(h)(3)(C)(ii) of the Act.
Because Claimants cannot inherit NH's intestate personal property under Tennessee law, they are not NH's children under section 216(h)(2)(A) of the Act. Moreover, because the evidence does not indicate NH was contributing to Claimants' support at the time he died, they are not NH's children under section 216(h)(3)(C) of the Act. Therefore, Claimants are not the children of NH for purposes of child's insurance benefits on NH's earnings record.
Mary A. S~
Regional Chief Counsel
Joseph P. P~, III
Assistant Regional Counsel
B. PR 83-025 Applicability of Lord Mansfield Rule in Tennessee and Right of Adopted Child to Inherit from Natural Parent in Georgia
DATE: August 25, 1983
FR LEGITIMACY AND LEGITIMATION — PRESUMPTIONS AND EVIDENCE — TENNESSEE
The Lord Mansfield Rule (i.e., neither a husband nor a wife may testify to support an allegation that a child born of the wife is not the natural child of the husband) is not applicable in Tennessee effective March 15, 1955. (Applicability of Lord Mansfield Rule in Tennessee and Right of Adopted Child to Inherit from Natural Parent in Georgia — RAIV (W~, to AC, OPP, 08/25/83.)
ADOPTION AS AFFECTING INHERITANCE RIGHTS — GEORGIA
In adoptions where the natural parents have surrendered their parental rights or a Court has terminated such rights, the right of inheritance from the natural parents to the child terminate. In cases where there is no such surrender or court determination, the child retains the right of inheritance from the natural parent. (Applicability of Lord Mansfield Rule in Tennessee and Right of Adopted Child to Inherit from Natural Parent in Georgia — RAIV (W~), to AC, OPP, 08/25/83.
In your memorandum of October 18, 1982, you asked for additional assistance in implementing two opinions from this office. First, you asked for the specific date in 1955 when the Lord Mansfield Rule was no longer applicable in paternity and inheritance proceedings in Tennessee. Second, you asked for a description of the criteria to be applied in Georgia in determining whether a natural parent of an adopted child terminated parental rights prior to that natural parent's death. This determination is relevant to the adopted child's right to inherit from the natural parent.
In response to your first inquiry, we have previously discussed Tennessee's historical reluctance to take a definitive position regarding the applicability of the Lord Mansfield Rule. Melvin, IPB, RAIV [W~ ], 8/27/82.) In previous discussion, we also noted that the 1947 opinion from this office concluding that the Lord Mansfield Rule would be applicable in Tennessee was largely based upon Tennessee's silence on this issue and the existing majority rule at that time and not upon any express Tennessee authority. However, the Tennessee legislature subsequent to that 1947 opinion enacted new paternity legislation which became effective March 15, 1955. As a result of this legislation, the natural mother and alleged natural father were specifically rendered 'competent to testify on the issue of access in paternity .. proceedings. Tenn. Code Ann. §36-227, Public Acts of Tennessee, 1955, Chapter 186, §6. This legislation clearly established that the Lord Mansfield Rule was not applicable on and after March 15, 1955 in paternity cases. If paternity is established under this legislation, one effect of such a determination is to render the child legitimate for purposes of inheriting from his father. Tenn. Code Ann. §36-234, Public Acts of Tennessee, 1955, Chapter 186, $13. However, there is some question as to the constitutionality of that portion of Tenn. Code. Ann. $36-234 which bestows inheritance rights. Young v. Willis, 436 S.W.2d 445 (Ct. of Appeals Tenn. 1968); Estate of K~ , 544 S.W. 2d 365 (Ct. of Appeals Tenn. 1975), cert. denied, 1976. Wholly aside from these paternity proceedings pursuant to statute, an illegitimate child subsequent to June 29, 1978 may inherit from and through his father if the illegitimate child can establish paternity in a court of law clear and convincing proof. (T~ Melvin, to IPS, RAIV [W~], 8/7/82.)
Given the historical reluctance of Tennessee to take a position on the Lord Mansfield Rule and the basis for our 1947 opinion regarding the Lord Mansfield Rule in Tennessee and the statutory and case law developments in paternity and inheritance determinations as discussed in the T ~ opinion, we have found no authoritative basis to conclude that the Lord Mansfield Rule was ever applicable in Tennessee. However, it was not until the paternity legislation effective March 15, 1955 that Tennessee broke its silence and took a definitive position at least in paternity actions.
In response to your second inquiry regarding the inheritance rights of adopted children in Georgia subsequent to January 1, 1978, it should be noted that the adoption of a child with living parents is not permitted in Georgia unless the parent(s) or guardian(s) voluntarily and, in writing, surrender their respective rights to the child or such rights have been terminated .by a court of competent jurisdiction. Ga. Code Ann. §74-403. The general effect of the legislation effective January 1, 1978 was to render the adopted child a stranger to his natural parents and to limit his inheritance rights to his adopting parents and their relatives. However, the adopted child's inheritance rights were also extended to his natural parents in those limited circumstances where the parent died without having surrendered or terminated parental rights as required. Ga. Code Ann. §74-413(b). The limited circumstances where the surrender of such rights is not required for adoption fall into two general categories. The first category of circumstances is directed entirely to the natural parent and are as follows: (1) where the child has been abandoned by the parent; (2) where the parent cannot be found after diligent search; or, (3) where the parent is insane or otherwise incapacitated from surrendering such rights and the court is of the opinion adoption is for the best interest of the child. Ga. Code Ann. §74-405(a).
The second category involves the status of the petitioner for adoption. If the petitioner for adoption is the spouse of the other parent of the child, brother, sister, aunt, uncle of the child, son or daughter of either parent, surrender or termination of parental rights is not a prerequisite to adoption provided the parent has failed significantly for one year or longer prior to the filing of the petition for adoption to (1) communicate or make a bonafide effort to communicate with the child; or, (2) provide for the care and support of the child under the law or pursuant to judicial decree provided the court is of the opinion adoption is in the best interest of the child. Ga. Code Ann. §74-405(b).
Consequently, it is the opinion of this office that if the natural parent of the adopted child dies without having surrendered parental rights or such rights were not terminated by a court, and the child was adopted pursuant to the circumstances in either of the categories above described, the adopted child can inherit from the deceased parent.