PS 01205.027 Mississippi
A. PS 86-019 SSI OVERPAYMENT RECOVERY FROM ESTATE GEORGE H. ~
DATE: April 8, 1986
Mississippi Code Annotated ~91-1-19 which provides for the descent of exempt property does not apply in instances where the exempt property is disposed of by will.
(H~, George H. - SSN ~ - RAIV [Walters] - to ARC, Progs., Atl., 04/08/86)
You have requested our opinion as to whether the Social Security Administration is free to recover the overpayment of Supplemental Security Income (SSI) benefits made to the deceased number holder or whether the Administration is bound by Mississippi law which precludes recovery by creditors from property subject to the homestead exemption.
The facts, as indicated in the file, are that the number holder, George H. H~, was overpaid a total of $4,095. The Social Security Administration collected $643.10 prior to his death leaving a balance owing of $3,451.90. The attorney for the estate, H.R. V~ ~, has indicated that the decedent left no personal property whatsoever and that the sole property owned by him at the time of his death was his homestead. The decedent devised his homestead property to his six children who were his sole heirs. Mr. V~ contends that, under Mississippi law, the homestead property is exempt property descending to the heirs free of the debts of the deceased and, thus, that there should be no liability on the part of the estate for the decedent's overpayment.
The Miss.Code Ann. §85-3-21 provides for a homestead exemption:
Every citizen of this state, male or female, being a householder, and having a family, shall be entitled to hold exempt from seizure or sale, under execution or attachment, the land and buildings owned and occupied as a residence by him, or her
The Miss.Code Ann. §91-1-19 further provides for the descent of such exempt property as follows:
The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend ... if there be no such (surviving wife or husband), to the children and grandchildren of the deceased owner.
The record indicates, however, that the insured did not die intestate, and, thus, subject to the laws regulating descent and distribution, but rather that he died testate, having devised the homestead property to his six children. Under Mississippi case law, in instances where the exempt property is disposed of by will, statute S91-1-19 does not apply. Turner v. Turner, 30 M.428; Norris v. Callahan, 59 M.140; Osborn v. Sims, 62 M.429. Further, it has been held, in a case involving a widow, that if the widow renounces the will disposing of exempt property, she is only entitled to share in the estate generally and is not entitled to the specific exempt property so disposed of. Nash v. Young, 31 M.134.
Therefore, it is the opinion of this office, that the real property devised by George H~ to his children does not fall within the above-referenced provisions of ~91-1-19 and cannot be considered exempt from the debts of the decedent. Because of our finding that said real property is not subject to the homestead exemption, we have not addressed the additional issue of whether the Social Security Administration could recover an overpayment from an estate consisting solely of exempt homestead property; however, analogous concerns (namely, recovery of an overpayment notwithstanding a state court order exempting such assets from the claims of creditors) have been considered in a recent Office of General Counsel precedent opinion issued by this office (Hugh R~ - RAIV [Williams] - to ARC Progs. Atl., 03-31-86).