You asked us to determine whether the termination of parental rights between the number
holder (NH), T~, and his natural daughter, M~, prohibits entitlement to surviving
child benefits on his record.
No. The termination of parental rights between M~ and her natural father does not
prohibit her from entitlement to surviving child benefits on his record. At the time
of M~’s application for benefits, she could inherit from the NH under Colorado’s laws
of intestate succession. She was therefore the NH’s child as defined under section
216(h)(2)(A) of the Social Security Act, and deemed dependent on the NH.
In February 2014, a Colorado district court judge terminated the parent-child legal
relationship between the NH and his daughter, M~, then age 5, effective January XX,
2014. The order stated that “[t]he child and her parents are divested of all legal
rights, powers, privileges, immunities and obligations with respect to each other,
with the exception that the child’s status as heir at law shall cease only upon a
final decree of adoption.”
The NH died on May XX, 2014, and M~ filed an application for surviving child benefits
on September XX, 2014. M~ was subsequently adopted; the final decree of adoption is
dated November XX, 2014.
Under the Social Security Act (Act), an unmarried minor child of an insured individual
is entitled to child’s insurance benefits. Act § 202(d)(1). However, to receive child’s
insurance benefits, the applicant must qualify as the insured individual’s “child,”
as defined by section 216(e) of the Act, and be dependent on the insured individual
at the time he filed his application. See id.; 20 C.F.R. § 404.350.
Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child
of an individual.” Act § 216(e)(1). The Act further provides: “In determining whether
an applicant is the child . . . [of an] insured individual . . . apply such law as
would be applied in determining the devolution of intestate personal property by the
courts of the State . . . .” in which the insured individual was domiciled. Act §
216(h)(2)(A). An applicant is eligible for benefits as the insured individual’s “natural
child” if he could inherit property based on this intestacy test. 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is
generally deemed dependent upon the insured individual. See 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355,
you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c
(“where state intestacy law provides that a child may take personal property from
a father’s estate, it may reasonably be thought that the child will more likely be
dependent during the parent’s life”). However, deemed dependency does not apply where
a child is adopted by someone other than the insured during the insured’s lifetime.
See 20 C.F.R. § 404.361(b).
The NH’s death certificate indicates that he resided in Colorado. Although 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 treat Colorado as the
NH’s domicile and apply the intestacy law of Colorado.
Under Colorado law, the intestate personal property of a deceased person descends
to his or her heirs. Colo. Rev. Stat. § 15-11-101 (2015). Heirs include a decedent’s
children. Id. § 15-11-103. At the time of the NH’s death on May XX, 2014, and at the time of application
on September XX, 2014, M~ remained the NH’s heir. This is true even though a state
court terminated the NH’s parental rights effective January XX, 2014, and M~ was later
adopted. Under Colorado law, “[a]n order for the termination of the parent-child legal
relationship divests the child and the parent of all legal rights, powers, privileges,
immunities, duties, and obligations with respect to each other, but it shall not modify the child's status as an heir at law which shall cease only
upon a final decree of adoption.” Id. § 19-3-608(1) (emphasis added). The judge’s termination order stated the same with
respect to the relationship between the NH and M~. Because M~ had not been adopted
at the time of the NH’s death or at the time of her application, she remained his
child for purposes of determining eligibility for survivor benefits on the NH’s record.
M~ also meets the other entitlement requirements under § 202(d) of the Act because
she is (1) dependent on the NH; (2) unmarried; and (3) under the age of 18. See C.F.R. § 404.350. At age seven, M~ clearly meets the latter two requirements. And
as noted above, M~ is deemed dependent because she could inherit the NH’s personal
property under the relevant state intestacy laws. See id. § 404.361. The one exception is not relevant here because M~ was not legally adopted
by someone other than the NH during the NH’s lifetime. See id. § 404.361(b)(1); POMS GN 00306.010(B); GN 00306.165. Instead, M~ was adopted only after the NH’s death, and after her application was filed—in which case she is considered dependent on the NH. See 20 C.F.R. § 404.361(b)(2).
M~’s subsequent adoption does not affect her entitlement to benefits, even though
she could no longer inherit from the NH. Once entitled to benefits, there are only limited circumstances in which entitlement ends under the Act. See Act § 202(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). The terminating events involve factors
such as the child’s death, age, disability status, marital status, enrollment in an
elementary or secondary school, compliance with drug or alcohol treatment, and divorce
between the child’s parent and a stepparent (number holder). See Act § 202(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). A subsequent adoption is not included
among the list of terminating events. See POMS PR 01410.024A. In fact, POMS GN 00306.165A acknowledges that “[a]doption by someone other than the [number holder] does not
terminate a child’s entitlement.” See id.
M~ could inherit from the NH under state intestacy law at the time of the NH’s death
and at the time of the application for benefits, despite the termination of parental
rights. She is therefore considered the NH’s child and deemed dependent on the NH.
M~’s subsequent adoption does not affect her entitlement to benefits.
John J. Lee
Regional Chief Counsel
Region VIII, Denver
By: Brian Baak
Assistant Regional Counsel