You asked whether two child claimants may be eligible for child's insurance benefits
on the record of the number holder who signed a surrender of parental rights/release
for adoption prior to the date she was found entitled to disability insurance benefits
where the children were adopted by another individual after the number holder's date
We believe the children are eligible for child's insurance benefits on the record
of the number holder. We believe a Georgia court would likely find that the number
holder's surrender of parental rights did not cut off the children's intestate inheritance
rights prior to adoption.
According to the materials provided, Terrie B~, the number holder (NH), filed for
disability benefits on August 23, 2006. NH listed two children on her application,
James W. B~ and Jessica L. B~ (C1 and C2). The Social Security Administration (SSA)
approved NH's claim in March 2009, with August 2005 as the date of entitlement. NH
signed documents titled "Surrender of Rights/Final Release for Adoption" for each
child on June 21, 2005. These documents did not purport to cut off inheritance rights
of the children or obligations from NH to the children, but only surrendered NH's
control and rights over the children. By decree dated September 21, 2005, the Hart
County, Georgia, Superior Court approved the adoption of C1 and C2 by the wife of
their biological father.
To qualify for child's insurance benefits on the earnings record of an insured individual
who qualifies for disability insurance benefits, a claimant must be the insured individual's
"child." See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2009). "Child" may
include the natural child, adopted child, or stepchild of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2009). One way to determine whether a claimant
is an insured individual's child for purposes of Title II is for a claimant to show
he would be entitled to a share of the insured individual's intestate personal property
under the law of the state in which the insured individual was domiciled at the time
the application was filed. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2009). NH was domiciled
in Georgia at the time of C1 and C2’s application for child's insurance benefits on
NH's record. Therefore, Georgia law applies in determining whether C1 and C2 are the
children of NH for the purpose of intestate succession under section 216(h)(2)(A)
of the Act.
Under Georgia law, a child of an individual who dies without a will is entitled to
a share of the decedent's estate. See Ga. Code Ann. § 53-2-1(c)(1) (West 2009); see also Ga. Code Ann. § 53-1-2(9) (West 2009) (defining "heir" as an individual who survives
the decedent and is eligible to inherit the property of the decedent not disposed
of by will). Georgia law further provides that "a decree of adoption terminates all
legal relationships between the adopted individual and his relatives, including his
parent, so that the adopted individual thereafter is a stranger to his former relatives
for all purposes, including inheritance . . . ." Ga. Stat. Ann. § 19-8-19(a)(1) (West
2009); see Ga. Stat. Ann. § 53-1-8 (West 2009) (Georgia inheritance statute referencing § 19-8-19
regarding the effect of a decree of adoption on rights of inheritance). This statute
indicates the decree of adoption, issued September 1, 2005, rendered C1 and C2 no
longer the children of NH for the purposes of intestate succession in Georgia.
However, SSA found NH entitled to disability insurance benefits as of August 2005,
one month prior to the decree of adoption. Program Operation Manual System (POMS)
GN 00306.165 states: "If the adoption occurred before the child's application is filed, but the
application has retroactivity to a point before the adoption at which all entitlement
requirements are met, the adoption has no effect on determining the child's entitlement."
According to the information you made available, SSA established NH's application
of August 23, 2006, as retroactive to August 2005 for entitlement.
The question then becomes whether NH's surrender of rights, signed June 21, 2005,
before both her entitlement to benefits and the adoption decree, terminated the inheritance
rights of C1 and C2 under Georgia law. Under the Act, the deciding factor is whether
the child may continue to inherit under state intestacy law; the statute specifies
the criterion as "the same status relative to taking intestate property as a child,"
not whether the individual is in fact a legal "child" under state law. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). Thus, the critical factor
is terminating intestate inheritance rights, not terminating the parent-child relationship.
Under Georgia law, an unrevoked surrender of parental rights renders the surrendering
natural mother no longer the legal mother. The relevant statute defines "legal mother"
as "the female who is the biological or adoptive mother of the child and who has not
surrendered or had terminated her rights to the child." Ga. Stat. Ann. § 15-11-2 (10.2)
(West 2009). In regard to inheritance, "if a parent of a child dies without the relationship
of parent and child having been previously terminated by court order or unrevoked
surrender of parental rights to the child, the child's right of inheritance from or
though the deceased parent shall not be affected by the adoption." Ga. Stat. Ann.
§ 19-8-19. However, a mother’s mere surrender of her parental rights does not mean
that the child has no inheritance rights from his mother. On the contrary, Georgia
case law indicates that further court action is necessary to terminate a child's inheritance
We have not found any Georgia case law wherein a court applied the Georgia intestacy
statute to a child seeking to inherit from a parent who had surrendered rights, but
prior to any adoption of the child. However, a child's share to a parent's assets
under the intestacy statute is a child’s right . See Ga. Code Ann. § 53-2-1(c)(1). Georgia law considers taking under the intestacy statute
a form of support, as is made clear by the preference for the spouse or child to take
from an estate ahead of other creditors for "support and maintenance." Ga. Stat. Ann.
§ 53-3-1(c) (West 2009). Generally, in support situations, Georgia courts preserve
the right of the child to a parent's assets after a surrender of rights but before
adoption. In Department of Human Resources v. Cowan, the Georgia Court of Appeals held that a father's surrender of rights and consent
to adoption, where the adoption had not been finalized, did not relieve him of an
obligation to pay child support. See 469 S.E.2d 384, 386 (Ga. Ct. App. 1996). A more recent case quotes Cowan with approval, while acknowledging the statutory language that a mother is no longer
the "legal mother" after a surrender of rights. See In the Interest of A.C., 642 S.E.2d 418, 421 (Ga. Ct. App. 2007). "[A] parent cannot contract away the obligation
to support her children. A court order is required to alter the statutory obligation
of a parent to support her child." Id. Thus, we believe a Georgia court would not take away a child's right to avail himself
of a biological parent's assets, including inheritance under the intestacy statute,
simply because another statute declares that, after surrendering rights, the biological
parent is no longer the legal parent.
These cases are consistent with Georgia case law showing that adoption is the event
that cuts of the child's rights, not the surrender of rights prior to adoption. "The
general intent of the Georgia adoption statute appears to be that the rights and obligations
of a natural parent, and those of an adopting parent, to a child are not conclusively
altered until the date of the final order of adoption." United States Fidelity and Guaranty Company v. Dunbar, 143 S.E.2d 663, 668 (Ga. Ct. App. 1965). "Although the trial court does give consideration
to a surrender of parental rights in favor of a relative, the surrender is not in
itself determinative on the ultimate issue of whether an adoption petition should
be granted, which remains governed by the best interest of the child analysis." Owen
B. W~, 674 S.E.2d 665, 667 n.7 (Ga. Ct. App. 2009).
The Georgia Supreme Court has explained the policy behind these rules:
The termination of parental rights is designed to protect a child who has been abandoned,
deprived, or unsupported. An adoption does more. A new relationship between the child
and the adopting parents is created. Old ties may interfere with the new relationship.
. . . The former merely terminates the rights and obligations flowing between a parent
and child. They remain parent and child. The latter alters their status. They are
no longer parent and child.
Menard v. Fairchild, 328 S.E.2d 721, 727-728 (Ga. 1985). The Court's holding, "They remain parent and
child," is in tension with the language of the current statute, which says that a
surrender of right renders the birth mother no longer the legal mother. See Ga. Stat. Ann. § 15-11-2 (10.2). However, the underlying policy remains: a parent
is not relieved of the obligation to provide for the child until another parent is
in place. Because the surrender of rights does not sever the obligation of support,
we don't believe the surrender would sever inheritance rights.
We conclude that NH's surrender of rights did not cut off the right of C1 and C2 to
inherit from NH at the time of NH's entitlement to disability insurance benefits.
Therefore, C1 and C2 are NH's children.
Very truly yours,
Mary A. S~
Regional Chief Counsel
Assistant Regional Counsel