TN 17 (04-14)
PR 01805.027 Mississippi
A. PR 14-066 Claimant’s Status as Number Holder’s Child under Mississippi Intestacy Law Where Number Holder’s Parental Rights Have Been Terminated
DATE: March 20, 2014
The NH's death certificate indicates he was domiciled in Mississippi when he died. Therefore, we look to Mississippi Intestacy law to determine whether the Claimant is the NH's child for the purposes of section 216(h)(2)(A) of the Act. Under Mississippi law, the intestate personal property of deceased person descends to his or her heirs. In this case, the NH and claimant's mother divorced and in the Final Judgment incorporates a Separation and Property Settlement whereby the parties agreed that the father's parental rights with regard to the claimant would be now and forever permanently terminated. No financial support is required from the NH and the NH has no visitation rights. The Final Judgment and the Settlement indicate that the NH and Claimant's mother waived any right that he or she may have to inherit from the estate of each other, except by specific devise or bequest. Under the Mississippi State law, upon clear and convincing evidence, a court may terminate all the parental rights of the parent or parents. However, in this case, neither the Final Judgment nor the Settlement addressed the Claimant's right to inherit from the NH and the information provided does not include a court order addressing or terminating the Claimant's right to inherit from the NH. We found no Mississippi statute establishing that a child loses the right to inherit from a parent based on the termination of parental rights. In the absence of a court order or decree terminating the Claimant's right to inherit from NH, we believe a Mississippi court would determine the Claimant could inherit the NH's intestate personal property as the NH's child. The Claimant is the NH's child for purposes of the Mississippi Intestacy law and Section 216(h)(2)(A) of the Act. The claimant is eligible for CIN on the NH's record.
For determining the claimant’s eligibility for child’s insurance benefits (CIB) on the deceased number holder’s earnings record, you have asked whether the claimant is the child of the number holder whose parental rights were terminated. You brought to our attention Program Operations Manual System (POMS) PR 01805.027 Mississippi, which addresses the termination of an adoptive father’s parental rights, but Claimant is the biological child of number holder, not an adopted
The claimant is the deceased number holder’s child under Mississippi intestacy law for determining the claimant’s eligibility for CIB on the number holder’s earning record.
According to the information provided, Candi (Claimant’s mother) applied on behalf of Thomas (Claimant) for CIB on the earnings record of Michael, the number holder (NH). NH’s death certificate indicates he died on July 15, 2013, while domiciled in Mississippi. Claimant’s mother provided a marriage certificate showing she and NH married on February 10, 2000. A birth certificate establishes that Claimant was born on January , shows Claimant received the name Thomas, and lists NH as his father. A Judgment of Divorce shows Claimant’s mother and NH divorced on September 5, 2001. A second marriage certificate shows Claimant’s mother and NH remarried on March 14, 2002. They divorced again, as evidenced by a Final Judgment (of Divorce) entered on March 18, 2004. The Final Judgment incorporates a Separation and Property Settlement (Settlement). The Settlement states the only child born to the marriage was Claimant and the parties agreed “the father’s parental rights with regard to said child be now and forever permanently terminated. No further financial support whatsoever is required to be provided by the father and that the father has no visitation rights whatsoever with said child.” Settlement ¶ 5. The Settlement also indicates each party waived any right that he or she may have to inherit from the estate of the other party, except by specific devise or bequest. Settlement ¶ 8. On July 22, 2004, Claimant’s mother obtained a court order granting permission to change Claimant’s name to Thomas. On August 3, 2004, Claimant’s mother obtained an amended birth certificate for Claimant that reflected this name change. This birth certificate, too, lists NH as Claimant’s father.
A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2013). All references to the Code of Federal Regulations are to the 2013 edition unless otherwise noted.
“Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. See C~, 132 S. Ct. at 2028. Under section 216(h)(2)(A) of the Act, a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when he died. A claimant may qualify as “the child” of a deceased insured individual under section 216(h)(3)(C) of the Act if the claimant is the son or daughter of the insured individual and shows one of the following: (1) the insured individual acknowledged in writing that the child was his child, (2) a court decreed the insured individual to be the father of the child, (3) a court ordered the insured individual to contribute to the support of the child, or (4) the insured individual is the child's father and was living with or contributing to the support of the child when the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). The acknowledgment, court decree, or court order must have occurred before the insured individual's death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3). The information provided does not indicate SSA could deem Claimant to be NH's child under any provision of section 216(h)(3)(C) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). “When the NH’s parental rights with respect to a child have been terminated, and the child has not been adopted by someone else, the child does not necessarily lose inheritance rights with respect to the NH under State law.” POMS GN 00306.001C.2.6.
NH’s death certificate indicates he was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for the purposes of section 216(h)(2)(A) of the Act. Under Mississippi law, the intestate personal property of a deceased person descends to his or her heirs. See Miss. Code Ann. § 91-1-11 (West 2013). Heirs include a decedent’s children. See Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 159 (Miss. 2011) (citing Miss. Code Ann. §§ 91-1-1 to 91-1-11).
Miss. Code Ann. § 93-15-109 states that upon clear and convincing evidence, a “court may terminate all the parental rights of the parent or parents regarding the child, and terminate the right of the child to inherit from such parent or parents.” The Final Judgment and incorporated Settlement indicate NH and Claimant’s mother waived any right that he or she may have to inherit from the estate of the other party, except by specific devise or bequest. Settlement ¶ 8. However, neither the Final Judgment nor the Settlement addressed Claimant’s right to inherit from NH, and the information provided does not include a court order addressing or terminating Claimant’s right to inherit from NH.
We found no Mississippi statute establishing that a child loses the right to inherit from a parent based on a termination of the parent’s rights in the absence of a court decree specifically terminating the child’s right to inherit from the parent. Moreover, the Mississippi Supreme Court has held that in the absence of a statute or decree to the contrary, Mississippi law permits an adopted child to inherit from his or her natural parent, even though the parent’s parental rights had been terminated. See Alack v. Phelps, 230 So. 2d 789, 793 (Miss. 1970) (citing Sledge, et al v. Floyd, 104 So. 163, 165 (Miss. 1925)). The Mississippi appellate courts reaffirmed this rule in Estate of Jones v. Howell, 687 So. 2d 1171, 1174-75 (Miss. 1996), and Jenkins v. Jenkins, 990 So. 2d 807, 810-11 (Miss. Ct. App. 2008). We recognize that these cases deal with adopted children, but they are analogous as adoption involves termination of parental rights, and like the adoption statute, the termination of parental rights statute does not divest a child of inheritance rights absent a court order. See Miss. Code Ann. §§ 93-15-109, 93-17-13, as amended. Given the absence of a court order or decree terminating Claimant’s right to inherit from NH, we believe a Mississippi court would determine Claimant could inherit NH’s intestate personal property as NH’s child.
Claimant is NH’s child for purposes of Mississippi intestacy law and section 216(h)(2)(A) of the Act, even though a state court terminated NH’s parental rights. Therefore, Claimant is NH’s child for determining his eligibility for CIB on NH’s earnings record.
Mary Ann Sloan
Regional Chief Counsel
Megan E. Gideon
Assistant Regional Counsel
B. PR 05-207 Application for Child's Benefits Where Wage Earner's Parental Rights Have Been Terminated - Mississippi
DATE: August 1, 2005
In Mississippi, a child whose adoptive father's parental rights were terminated as part of a divorce proceeding cannot qualify as a child of that number holder for benefit purposes.
In this case, the original decision to award the child benefits was based on erroneous and incomplete facts as the claimant's mother did not supply the evidence of this termination of parental rights at the time of filing. This decision can be reopened and revised.
Whether a child can inherit from his adoptive father after the father's parental rights were terminated and whether a prior award of child's benefits can be reopened and denied.
Deborah (Claimant's mother) applied for child's insurance benefits for William (Claimant) on the wage record of Donald (wage earner or W/E). W/E died on January 1, 2003 and Claimant's mother filed for benefits on January 21, 2003. At the time of the application, Claimant's mother provided a birth certificate and an adoption order to show that Claimant was W/E's adopted son. She was married to Wesley when she applied for benefits.
On May 11, 2004, Wesley and Claimant's mother divorced. In April 2005, Claimant's mother filed for mother's benefits as a surviving divorced spouse on W/E's wage record. She submitted copies of her divorce decrees from both marriages. When reviewing those documents, the local office discovered that W/E's parental rights over Claimant had been terminated by mutual consent in the December 15, 2000 divorce decree.
When W/E's parental rights were terminated, Claimant could no longer meet the legal definition of a child for Social Security purposes. He was not the natural child, a legally or equitably adopted child, or a stepchild at the time that his mother filed an application for child's benefits. See 20 C.F.R. § 404.354 (2004). In reaching this conclusion, we considered whether Claimant might be considered the "child" of the wage earner under 20 C.F.R. § 404.355, which states that a child may be eligible for benefits as the insured's natural child if you could inherit the wage earner's personal property as the natural child of the wage earner under state law. Claimant was not W/E's natural child. The only other eligibility option available for Claimant was proof that he is still considered the legally adopted child of the wage earner under Mississippi state law. The question of state laws on inheritance would not be an issue. 20 C.F.R. § 404.356 (2004). Instead, the issue would be whether Claimant was dependent on the wage earner as a legally adopted child at the time of his death. 20 C.F.R. §§ 404.360, 404.361, 404.362. Since W/E's parental rights were terminated, including his obligation to support Claimant, and no evidence of dependency presented with the application for child's benefits, there would be no entitlement to child's benefits under any of the statutory or regulatory provisions that govern legally adopted children.
The local office has stated that the applicant recently made some assertions that her son is still entitled to adopt from the wage earner despite the termination of parental rights. Mississippi Code section 93-17-13(a) provides for inheritance from an adoptive parent and states that:
(a) the child shall inherit from and through the adopting parents ... and that the adopting parents ... shall inherit from the child, just as if such child had been born to the adopting parents in lawful wedlock.
We could not find any Mississippi cases that specifically addressed the issues presented in this matter. Therefore, using our best judgment about how Mississippi courts would rule in a similar factual scenario, we have concluded that the Mississippi courts would initially determine that the voluntary termination of parental rights in the divorce was a legal revocation of the adoption. Support for that conclusion can be found in the fact that the Claimant's name was changed back to William . While Claimant was legally entitled to inherit the personal property of the deceased wage earner as an adopted child of the wage earner, it is our opinion that Mississippi courts would also rule that the termination of the wage earner's parental rights, when viewed as a revocation of the adoption, had the resulting legal effect of severing Claimant's relationship with the wage earner and ending Claimant's ability to inherit from the wage earner.
Furthermore, under Mississippi law, an adoption does not extinguish the right of the adopted child to inherit from the natural parents. Alack v. Phelps, 230 So. 2d 789 (Miss. 1970). Therefore, we believe the court would also conclude that Claimant would still be entitled to inherit from his natural father (in accordance with state inheritance laws), but would not have any inheritance rights from the estate of an adoptive parent whose parental rights were terminated. As a result, we do not agree with Claimant's mother's conclusion that her son is able to inherit from the W/E's estate under Mississippi law.
A reopening of the initial determination in this matter would be appropriate under the provisions of 20 C.F.R. § 404.988(c)(1)(2004). This regulatory provision allows the Agency to reopen an initial determination at any time if it was obtained by fraud or similar fault. Another basis for reopening can be found in 20 C.F.R. § 404.988(b). This section states that an initial determination can be reopened within four years of the date of the initial determination based on "good cause" as defined in 20 C.F.R. § 404.989 (2004). The divorce decree is new and material evidence. This case also involves a failure to provide pertinent documents resulting in a misrepresentation of the applicant's status. See also 42 U.S.C. § 408(a)(4).
Claimant is not W/E's "child," because he does not meet the statutory definition of a "child" for Social Security purposes. The original determination was based on erroneous and incomplete facts because the applicant withheld important information that would have supported a determination that Claimant is not a "child" as defined in the Social Security Act. Therefore, a reopening of the initial determination awarding benefits is permissible under 20 C.F.R. § 404.988.
Mary Ann Sloan
Regional Chief Counsel
Sharon F. Young
Assistant Regional Counsel