This memorandum responds to your request for our opinion as to whether a natural parent
may inherit the underpayments due a deceased child who was determined to be equitably
adopted by the maternal grandmother, now deceased. Specifically, the Social Security
Administration ("SSA") determined that Cassandra G~ had been equitably adopted by
her grandmother, Naomi L~, and awarded child's survivor's benefits on Ms. L~'s account,
naming Cassandra's cousin as representative payee. Cassandra was due to receive a
$29,741.50 underpayment, but died prior to the disbursement. Cassandra's natural mother,
Ada R. R~, with whom she was living at the time of her death, filed a claim for the
underpayment. For the reasons set forth below, we opine that Ada R. R~ is entitled
to the underpayment due Cassandra, if her parental rights have not been terminated.
With respect to the purported father, we opine that at least one-half of the underpayment
be withheld pending further investigation and until the father named by Ms. R~ is
provided with legally-sufficient notice and the opportunity to pursue any claim he
may have to the funds.
In summary, SSA determined that Ms. L~ had equitably adopted Cassandra, and awarded
Cassandra survivor's benefits. Due to misinformation given to Cassandra's legal guardian,
Barbara N~, by an SSA employee, Cassandra was underpaid by $29,741.50. Cassandra died
on September 6, 1997. At the time of her death, she was in the legal custody of the
Texas Child Protective Services, but lived with her natural mother, Ada R. R~. Upon
Cassandra's death, Ms. R~ filed a claim for the underpayment due Cassandra.
The maternal grandmother, Naomi L~, applied for disability benefits on February 3,
1993. Ms. L~ also was in the process of adopting and was the temporary managing conservator
of Cassandra. Prior to the adoption hearing set for April 13, 1993, Ms. L~ entered
the hospital, and she died on April 14, 1993. Barbara N~, Ms. L~'s niece, was named
legal guardian of Cassandra and allegedly inquired about benefits soon after Ms. L~'s
death, but was misinformed by an employee of the Social Security office as to Cassandra's
eligibility to receive survivor's benefits on her grandmother's account. She did not
apply for survivor's benefits on behalf of Cassandra until March 11, 1997.
Equitable adoption occurs when an insured individual agrees to adopt a child under
a state law, but the adoption does not occur./ 20 C.F.R. § 404.359 (1998). It is clear
from the file that Cassandra was equitably adopted by Ms. L~. The Social Security
Act ("the Act") allows an equitably adopted child to be eligible for benefits. Social
Security Act § 216(h)(2),(3); 42 U.S.C. § 416(h)(2),(3); 20 C.F.R. § 404.359 (1998).
The regulations further provide that underpayments will be distributed in the order
of highest priority, which is identified as the 1) surviving spouse living in the
household or entitled to monthly benefits based on the record, 2) the child or children
of the deceased entitled to monthly benefits, 3) the parent or parents of the deceased
who were entitled to monthly benefits based on the earnings record of the deceased,
4) surviving spouse not entitled to benefits, 5) the child or children of the deceased
not entitled to benefits, 6) the parent or parents not entitled to benefits, and 7)
the legal representative of the estate. 20 C.F.R. § 404.503 (b), (c) (1998).
The Social Security Act and regulations provide that the state laws in existence at
the time of the insured's death determine the relationship to the insured. Social
Security Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.354 (1998).
The record indicates that at the time of her death, Cassandra lived in Tyler, Texas,
with her natural mother.
Generally, Texas law provides that when a person dies without a will, has no spouse,
and leaves real and/or personal property, the title to the property shall first pass
to the children, if any, then to the mother and father in equal shares, if both are
alive. If one of the parents is deceased, that portion passes to the brothers and
sisters of the deceased. If both parents are deceased, then title shall pass to the
brothers and sisters of the deceased. Tex. Prob. Code Ann. § 38(a) (Vernon Supp. 1993).
Additionally, Tex. Prob. Code Ann. § 40 (Vernon Supp. 1993) states that "[t]he natural
parent or parents of such [adopted] child and their kin shall not inherit from or
through said child, but said child shall inherit from and through its natural parents."
The Texas Probate Code contains no specific provision for equitably adopted children.
Texas case law holds that a natural mother has a right of inheritance despite equitable
adoption, because equitable adoption does not terminate the natural parent's rights.
See Curry v. Williman, 834 S.W.2d 443 (Tex. App.— Dallas 1992, writ denied). In C~, Mr. C~ had divorced his wife and obtained custody of the children. Mr. C~ remarried and the new wife attempted to adopt the children. The ex-wife, Ms. W~, contested the adoption and no other adoption actions were taken. One of the children
had received an award of damages due to an accident, but the child died intestate
prior to distribution of the funds. Mr. C~ died before the child. The surviving siblings, along with Ms. W~, asserted inheritance rights. The surviving siblings claimed that the new Mrs. C~ had equitably adopted the child, thus terminating Ms. W~'s inheritance rights. Id. at 444. The court held in favor of Ms. W~, explaining that while equitable adoption protects the inheritance rights of a child
who was not adopted prior to the death of the adoptive parent, neither the adoptive
parent nor her heirs may inherit from the equitably adopted child. The court held
that "equitable adoption applies in favor of the child," and that equitable adoption
"does not prevent natural parents from asserting their inheritance rights." Id. at 445.
There is no evidence showing that a court terminated Ms. R~' parental rights. Following
the C~ rationale, applying the regulations cited above regarding order of payment and in
the absence of a court order terminating her parental rights, Ms. R~ retained the
right to inherit from Cassandra because equitable adoption does not create a legal
parent-child relationship and does not terminate the natural parent's inheritance
rights. See Curry, 834 S.W.2d at 444. Thus, Ms. R~ would be entitled to at least a portion of the underpayment
as one with a higher priority than the cousin appointed as Cassandra's guardian. See 20 C.F.R. § 404.503(b)(6) (1998).
You also asked us to provide an opinion as to whether Cassandra's biological father
has any inheritance rights and referred us to a prior Memorandum: Queen T. E~, SSN:
~, which cited to the case of Hopper v. Brittain, 612 S.W.2d 636 (Tex. App.— Houston [14th Dist.] 1981, no writ). In the H~ case,
the court found that no parent-child relationship existed because a man must either
legitimate or adopt the child. Id. at 639. A review of the record shows that Ms. R~ signed an "Admission of Evidence"
swearing that she was not able to positively identify the father of Cassandra and
that the putative father had been deported to Mexico. A closer reading of the document
reveals that she also swore that "my spouse's attorney, George C~ does not represent
me . . . ." Cassandra's birth certificate lists Ms. R~' name as "Ada R. G~," but the
file contained no information about Ms. R~' marital status at the time of Cassandra's
We contacted attorney George C~,/ who stated that he made a clerical error on the
"Admission of Evidence," and that Ms. R~ was not married at the time she signed the
document. We also contacted Rex K~,/ the attorney appointed to represent Cassandra
during the adoption proceedings. Mr. K~ informed us that, to his knowledge, Ms. R~'
parental rights have never been terminated and that she had been seeing J.D. G~,/
but that Mr. G~ has never claimed to be Cassandra's father. In fact, Mr. K~ believed
that Mr. G~ may have denied paternity on the record in case filed in Smith County.
The case number is CA ~.
Texas law provides a presumption of paternity when a child is born during the marriage
or not more than 300 days after the date the marriage is terminated or is declared
void. Tex. Fam. Code § 12.02 (Vernon Supp. 1993)./ A parent is defined as ". . . a
man presumed to be the biological father or a man who has been adjudicated the biological
father by a court of competent jurisdiction, or an adoptive . . . father, but does
not include a parent as to whom the parent-child relationship has been terminated."
Tex. Fam. Code Ann. § 11.01(3) (Vernon Supp. 1993); see Mata v. Moreno, 601 S.W.2d 58, 59 (Civ. App.—Houston, [1st Dist.] 1980, no writ) (defining a man
as a "parent" if "he adopts the child or the child is legitimate to him"). Texas law
further provides that paternal inheritance is established in one of four ways: 1)
the presumption of paternity as described by Texas Family Code § 12.02 is satisfied;
2) there has been an adjudication of paternity; 3) the father adopts the child; or
4) the father executes a statement of paternity. Tex. Prob. Code Ann. § 42(b)(1) (Vernon
Case law explains that the legislative intent of Texas Probate Code § 42(b)(1), was
to allow "collateral relatives to inherit from an illegitimate child." Matherson v. Pope, 852 S.W.2d 285, 290 (Tex. App.— Dallas, 1993, writ denied). However, the court in
Matherson explained that under the Texas intestacy statute, a father and paternal kindred may
inherit from an illegitimate child once the child is "legitimated" under any one of
four methods outlined in Texas Probate Code § 42(b)(1). Id. In the present case, the record is unclear as to whom, if anyone, Ms. R~ was married
when Cassandra was born because the birth certificate lists both last names as "G~."
Recall that Ms. R~ swore that she was not represented by her "spouse's attorney."
Mr. K~ also informed us that Ms. R~ reported in a statement of paternity in the above-mentioned
case that Chico D~/ was Cassandra's father, but that he was in Mexico, and his address
was unknown at the time of the lawsuit. Citation by publication was attempted on April
21, 1997, but he did not respond. Texas case law provides that a one-sided recitation
of paternity is not evidence of legitimation when the alleged father "has not had
the opportunity to" refute the statement. Martinez v. Department of Human Resources, 620 S.W. 2d 805, 808 (Tex. Civ. App.—Houston [1th Dist.] 1981, no writ). While there
is no indication from the records, or through our phone calls, that Mr. D~ legitimated
Cassandra, the information obtained from Mr. K~ should be verified by the Smith County
court. In light of the case law and Mr. K~'s information, it appears that Cassandra
has not been legitimated.
In conclusion, it is our opinion that the equitable adoption of Cassandra by Naomi
L~ did not terminate the parental rights of the natural mother. However, we believe,
based on the file presented for our review, that SSA must contact Ms. R~ and clarify
the record before releasing any underpayment. Specifically, SSA must establish Ms.
R~' marital status as of the date of Cassandra's birth, and confirm whether her parental
rights have been terminated by the State of Texas. This information will confirm Ms.
R~' inheritance rights, assuming that she was never married. In light of the above
ambiguities, SSA should withhold the underpayment in the amount of $29,741.50 until
the record is clarified. If Ms. R~ was not married and her paternal rights have not
been terminated, she would be entitled to the underpayment. Further, SSA should contact
Smith County court and verify the information provided by Mr. K~. If this information
is correct, and Ms. R~ and Mr. G~ were not married, then no parent-child relationship
exists between Cassandra and Mr. G~./ Thus, he would not be entitled to a part of
the underpayment. As to Mr. D~, it is recommended that SSA should withhold at least
one-half of the underpayment until he receives legally-sufficient notice. If you request,
this office will be pleased to assist in drafting such notice.