You have requested our opinion as to whether a child in the state of Iowa would retain
inheritance rights from a number holder when the number holder's parental rights were
terminated and 1) the child was adopted by another person, or 2) the child was not
adopted. Our research indicates that a child who is adopted does not retain inheritance
rights from a biological parent. However, a child who was not subsequently adopted
by another person may retain inheritance rights from a biological parent even if the
parent's parental rights were terminated.
Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement
to child's insurance benefits. This section provides that every "child" of an individual
who dies fully insured under the Act is entitled to benefits if the child applies
for benefits, is unmarried and under 18 (or a full-time elementary or secondary school
student and under age 19), or is under a disability that began before age 22, and
was dependent on the deceased at the time of death. Id. See also 20 C.F.R. § 404.362. Pursuant to the Act, the term "child" includes the child or
legally adopted child of an individual. Social Security Act § 216(e). The Act directs
that, in determining whether an applicant is the child of an insured individual, the
Commissioner must 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 at the time of death. See Social Security Act § 216(h)(2)(A). An applicant who is a "child" pursuant to state
intestate succession laws and would take intestate personal property as a "child"
shall be deemed the "child" of the deceased number holder under the Social Security
As you have noted, the Program Operations Manual System (POMS) GN 00306.170, provides that, in Iowa, an adopted child may inherit from a biological parent if
the parent died on or after January 1, 1977. See POMS GN 00306.170. However, the law in Iowa was amended in 1981 to extinguish an adopted person's right
of intestate succession. See 1981 Iowa Acts ch. 194, § 1. Current law states that "a lawful adoption extinguishes
the right of intestate succession of an adopted person from and through the adopted
person's biological parents." Iowa Code § 633.223 (2009). The only exception to the
rule is that "an adoption of a person by the spouse or surviving spouse of a biological
parent had no effect on the relationship for inheritance purposes between the adopted
person and the biological parent." Id. Therefore, since 1981, an adopted child has no right to inherit from a biological
In the case where the child has not been adopted, the termination of a biological
parent's parental rights does not determine if the child can inherit from that parent.
Rather, Iowa Code provides that, "[u]nless the child has been adopted, a biological
child shall inherit from the child's biological mother." Iowa Code § 633.221 (2009).
Unless the child had been adopted, a biological child inherits from the child's biological
father if the evidence proving paternity is available during the father's lifetime,
or if the child has been recognized by the father as his child; but the recognition
must have been general and notorious, or in writing.
Iowa Code § 633.222 (2009). The specific language of the statue creates only one exception
to a child's right to inherit from a biological parent; a child can inherit from a
biological mother or father unless the child has been adopted. Because there is no
reference to the termination of a biological parent's parental rights, it appears
that a child would inherit from a biological parent whose parental rights were terminated,
but the child had not been adopted. In the case where a biological father's parental
rights were terminated, the child would likely still inherit because it necessary
follows that in order for the father's parental rights to have been terminated, he
recognized the child as his child or there was evidence of paternity. See Iowa Code § 600A (2009). Thus, the language of Iowa's Probate Code indicates that
a child would inherit from a biological parent even if the parent's parental rights
were terminated, so long as the child had not been adopted.
It is also significant to note that, even if parental rights were terminated, the
child may also be deemed to be the "child" of the insured individual under Section
216(h)(3), as long as the child has not been adopted by some other individual. In
the case of a deceased individual, a son or daughter, who is not deemed to be the
"child" of the insured individual under section 216(h)(2), could still be deemed to
be the insured individual's "child" if, inter alia, the insured was decreed by a court
to be the mother or father of the applicant and the court decree or order was entered
before the death of the insured individual. See Social Security Act § 216(h)(3)(C)(i)(II). In a termination of parental rights case,
an individual must be decreed by the court to be the mother or father of the child
before the individual's rights can be terminated. Thus, a son or daughter of an insured
individual whose parental rights were terminated could also be deemed a "child" pursuant
to Section 216(h)(3)(C)(i)(II), so long as the child had not been adopted.
We recommend that the POMS be revised to reflect the change in Iowa law regarding
an adopted child's right to inherit from biological parents in Iowa. We also recommend
that questions pertaining to specific factual scenarios be submitted for legal opinions.
Kristi A. S~
Chief Counsel, Region VII
Anne M. M~
Assistant Regional Counsel