PR 01805.029 Montana

A. PR 01-091 Child's Right to Inherit after Termination of Parental Rights - Montana

DATE: November 24, 2000


Under Montana law, a termination of the parent-child relationship does not affect the child's right to inherit from the parent.


You have asked us whether under Montana state law the child still has the right to inherit from his presumed natural father after the father's parental rights were terminated. As discussed below, we have concluded that under Montana law a termination of the parent-child relationship does not effect the right of the child to inherit from the parent.

A. Factual Background

William A. L~ was born February 7, 1989, to Jana M. L~. Ms. L~ was married to John K. B~, ~, on March 26, 1988, and divorced on March 8, 1989. The divorce decree listed William as born of the marriage and required Mr. B~ to pay child support. On July 12, 1989, the court entered a decree terminating the parental rights of Mr. B~ and ending his obligation to provide child support. A birth certificate that was issued September 13, 1989, has William's last name changed from B~ to L~ and the father's name stricken out. Mr. B~ died on September 15, 2000, while domiciled in Montana. William was not living with the Mr. B~, nor being supported by him at the time of Mr. B~'s death. Ms. L~ applied for child's insurance benefits on behalf of William on September 28, 2000.

B. Analysis

Section 216 of the Social Security Act, 42 U.S.C. § 416(h)(2)(A), provides that

[i]n determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death . . . .

Montana state law governing termination of parental rights and the right to inherit is clear and explicit. Mont. Code Ann. § 41-3-611 (1999) states:

(1) An order for the termination of the parent-child legal relationship divests the child and the parents of all legal rights, powers, immunities, duties and obligations with respect to each other as provided in Title 40, chapter 6, part 2, except the right of the child to inherit from the parent.

(Emphasis added.) See also In re The Matter of R.T.L.P., Youth in Need of Care, 238 Mont. 384, 777 P.2d 892, 896 (1989); In The Matter of C.P., Youth in Need of Care, 221 Mont. 180, 717 P.2d 1093, 1095 (1986).

Thus, we conclude that the termination of Mr. B~'s parental rights did not end William's right to inherit from Mr. B~.

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PR 01805.029 - Montana - 04/26/2002
Batch run: 11/29/2012