You asked us to determine if the claimants, A~ and her two children, T~ and B~, qualify
for divorced mother’s benefits and surviving children’s insurance benefits, respectively,
on the record of C~ (NH), considering the implications of West Virginia intestacy
law, where the NH terminated his parental rights with respect to T~ and B~ prior to
We believe that West Virginia law would not recognize a parent-child relationship
for intestacy purposes between the NH, on the one hand, and T~ and B~, on the other
hand, following the termination of the NH’s parental rights, and thus does not allow
T~ and B~ to inherit from the NH through intestacy. Therefore, we believe that A~
and her two children, T~ and B~, do not qualify for divorced mother’s benefits and
surviving children’s insurance benefits, respectively, on the NH’s record.
A~ married the NH on September XX, 1995. Two children were born during that marriage,
T~, who was born on November XX, 1995 and B~, who was born on November XX, 1999. A~
and the NH divorced on November XX, 2002.
On December XX, 2005, A~ petitioned the Circuit Court of M~ County, West Virginia
for a hearing on the relinquishment of the NH’s parental rights as to T~ and B~. On
January XX, 2006, the NH executed a lengthy statement relinquishing his parental rights
as to T~ and B~. On January XX, 2006, the Circuit Court of M~ County, West Virginia
issued an Order that the NH’s parental rights as to T~ and B~ were terminated. As
part of that Order, the Court found that T~ and B~ would have “no right of inheritance
from [the NH’s] estate.” The Order also explicitly stated that the NH would have no
child support obligation. There is no evidence as to whether T~ and B~ were subsequently
adopted, or if A~ remarried.
The NH remarried J~. He died in August 2011, while domiciled in West Virginia.
In September 2011, J~ applied for surviving child benefits for two children, N~ and
A2~, and mother’s benefits for herself. Those applications were approved.
A~, filed for benefits for two children, T~ and B~, and divorced mother’s benefits
for herself in November 2012. Those claims were also approved.
Thereafter, in a December XX, 2012 letter to the Wheeling, WV Social Security Office,
J~ protested T~, B~, and A~’s entitlement to benefits on the NH’s account.
To qualify for child’s insurance benefits on the earnings record of an insured individual
who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d);
20 C.F.R. § 404.350(a)(1). A claimant can qualify as the insured individual’s natural
child if the claimant could inherit from the insured individual as his or her child.
See Act § 216(h)(2)(A);
20 C.F.R. § 404.355(a)(1), (b). To determine if a claimant could inherit from the
insured individual the Social Security Administration applies the intestacy laws of
the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R.
§ 404.355(a)(1), (b)(1). Because the NH was domiciled in West Virginia when he died,
we look to West Virginia law to determine whether T~ and B~ could inherit from the
NH as the NH’s children. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355 (b)(4).
Divorced mother’s benefits are only permitted under certain circumstances, but at
the very least an individual must be an unmarried former spouse of a deceased number
holder, who has in her care the insured’s child or children, who are entitled to surviving
child’s or children’s benefits. 20 CFR 404.340. Thus, if T~ and B~ could inherit from
the NH as the NH’s children under West Virginia law, then A~ may be entitled to divorced
Neither the West Virginia’s intestacy code nor cases interpreting the code specifically
address whether a child may inherit from a parent following the termination of parental
rights where the child is not subsequently adopted. West Virginia intestate law more
broadly provides that a child may inherit from her parent if a parent-child relationship
exists between them. See W. Va. Code § 42-1-3a (permitting a decedent’s descendants to inherit from the decedent
through intestate succession); W. Va. Code § 42-1-1(5) (defining a descendant of an
individual as all his descendants with the relationship of a parent and child as defined
by the code); W. Va. Code
§ 42-1-1(26) (defining a parent as “any person entitled to take, or who would be entitled
to take if the child died without a will.”). Accordingly, here, the claimants may
only inherit from the NH if the parent-child relationship between T~ and B~, on one
hand, and the NH, on the other hand, survived the termination of parental rights of
Under West Virginia law, a parent-child relationship does not survive the termination
of parental rights. See In re Cesar L., 221 W. Va. 249 (2007) (finding a biological mother who voluntarily relinquished
her parental rights lacked standing to contest a child’s disposition order in an abuse
and neglect proceeding); In re A.H., No. 12-462, 2012 WL 4069567 (W. Va. Sept. 7, 2012) (finding a biological father
whose rights were involuntarily terminated lacked standing to contest a child’s disposition
order in an abuse and neglect proceeding).
In In re Cesar, the Supreme Court of Appeals of West Virginia (the state’s highest court) held that
“a final order terminating a person’s parental right, as a result of either an involuntary
termination or voluntary replenishment, completely severs the parent-child relationship, and as a consequence of such order of termination, the law no longer recognizes such person as a “parent” with regard to the child(ren) involved in the particular termination proceeding.”
Id. at 258-59 (further stating that termination of parental rights “relieves such person
of all the rights and privileges, as well as duties and obligations, considered to
be ‘parental rights’” and “the person who formerly possessed such parental rights
loses his his/hers status as the child’s parent”) (emphasis added); In re A.H., 2012 WL 4069567 at *3-4 (applying In re Cesar to cases involving involuntary termination of parental rights). Although In re Cesar addresses a parent’s standing to contest a dispositional order in an abuse and neglect
case, we believe that West Virginia’s Supreme Court of Appeals would extend its broad
and sweeping holding that the termination of parental rights completely severs the
parent-child relationship to matters involving intestate succession.
We note that in a context not involving intestate succession, West Virginia law allows
one parental obligation – child support – to survive termination of parental rights
unless the support obligation is explicitly ended in an order. See W. Va. Code § 49-4-802 (2015) (stating “[t]he [child] support obligation shall automatically
continue beyond the termination of the payor’s parental rights, unless the support
obligation is explicitly ended in an order); In re Stephen Tyler R., 213 W. Va. 725, 742-43 (2003) (internal citations omitted) (upholding a dispositional
order in an abuse and neglect case that simultaneously terminates a parent’s parental
rights and requires the same parent to continue paying child support; and explaining
that child support payments are “exclusively for the benefit and economic interest
of the child” and “[a]bove all, ‘[c]ases involving children must be decided not just
in the context of competing sets of adults’ rights, but also with regard for the rights
of the children’.”). This exception does not affect the intestate succession analysis
because child support obligations generally do not continue after the payor’s death.
See Scott v. Wagoner, 184 W. Va. 312, 316 (1990) (holding a court has the authority to enforce a child
support obligation as a lien against the deceased obligor’s estate only if compelling
equitable considerations are present).
In addition, here A~ petitioned the Circuit Court of M~ County, West Virginia for
a hearing on the relinquishment of the NH’s parental rights as to T~ and B~. And,
the Circuit Court of M~ County, West Virginia issued an Order that the NH’s parental
rights as to T~ and B~ were terminated. As part of that Order, the Court explicitly
found the NH had no child support obligations to T~ and B~ and that T~ and B~ would
have “no right of inheritance from [the NH’s] estate.”
Thus, we believe that the NH severed his parental rights with T~ and B~ such that
the parent-child relationship was terminated and T~ and B~ no longer have the right
to inherit via intestacy from the NH under West Virginia law. Accordingly, we believe
that T~ and B~ do not qualify for surviving children’s insurance benefits on the NH’s
record, and A~ does not qualify for divorced mother’s benefits on the NH’s record.
Regional Chief Counsel
By: Stuart Weiss
Assistant Regional Counsel