You asked us to research the laws of the states in Region V to determine how the termination
of parental rights affects a child's right to inherit from its natural parents in
the absence of subsequent adoption by other individuals and, consequently, the child's
potential entitlement to Social Security benefits. We discuss each state's law below.
DISCUSSION
The Social Security Act (Act) provides for the payment of child's insurance benefits
(CIB) to certain children of individuals who are entitled to old-age or disability
insurance benefits or who died fully or currently insured. See 42 U.S.C. § 402(d) (2003); 20 C.F.R. §§ 404.350-404.368 (2003). In order to qualify
for CIB, an applicant must be the wage earner's "child" as that term is defined by
the Act. See 42 U.S.C. §§ 416(e), 416(h)(2-3). The Act provides that a child is the child of a
currently insured individual if he or she would be entitled to inherit from the insured
individual. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(C)(1)(a), (2)(a), POMS GN 00306.075. The Agency applies the state law in effect at the time it makes its final decision
on the application for benefits. However, if the child claimant would not qualify
as the insured wage earner's child under that version of the state law, the Agency
looks at all versions of the state law in effect from the first month for which the
child claimant could be entitled to benefits until the time of the Agency's final
decision, and the Agency applies the version of state law that is most beneficial
to the child claimant. See20 C.F.R. 404.355(B)(3)-(4); POMS GN 0030.075(B)(2).
A child's entitlement to CIB depends on whether that individual can inherit money,
property or other assets as the wage earner's child according to state intestacy laws.
The following paragraphs discuss the laws regarding inheritance rights of children
whose natural parents have had their parental rights terminated in each of the six
states that comprise Region V:
Illinois
In Illinois, it appears that a child retains the right to inherit from its natural
parents after parental rights are terminated. The Illinois Adoption Act provides that
once parental rights are terminated, or a court enters a judgment of adoption, the
natural parents are "relieved of all parental responsibility for such child and shall
be deprived of all legal rights as respects the child, and the child shall be free
from all obligations or maintenance and obedience as respects such natural parents."
750 ILCS 50/17 (2003). This section, however, does not specify inheritance rights
as one of the rights affected by termination. In Illinois, courts will not insert
conditions or limitations into a statute that are absent from the text. See Davis v. Toshiba Machine Co., America, 710 N.E.2d 399, 401 (Ill. 1999). Additionally, the Illinois Probate Act specifically
provides that, for purposes of inheritance, an adopted child is not a child or a descendant
of a natural parent. See 755 ILCS 5/2-4(d). The Probate Act does not impose a similar exclusion upon children
whose parents have had their parental rights terminated. The Illinois rules of statutory
construction provide "that where there exists a general statutory provision and a
specific statutory provision, either in the same or in another act, both relating
to the same subject, the specific provision controls and should be applied." See Knolls Condo. Ass'n v. Harms, 781 N.E.2d 261, 267 (Ill. 2002). Here, the more specific terms of the Probate Act
appear to control the more general terms regarding the effect of termination as explained
in the Adoption Act. Because the Probate Act limits only the adopted child's ability
to inherit, we presume that a child can likely inherit from natural parents after
their parental rights have been terminated, unless and until the child is adopted
by another.
Indiana
In Indiana, it appears that a child retains the right to inherit from its natural
parents after parental rights are terminated, absent subsequent adoption. [1] Section 31-35-6-4 of the Indiana Code states that when parental rights are terminated,
"all rights, powers, privileges, immunities, duties, and obligations, including any
rights to custody, control, visitation, or support, pertaining to the relationship,
are permanently terminated." BURNS IND. CODE ANN. § 31-35-6-4 (2003). Section 31-35-6-4
does not specify inheritance rights as one of the rights affected by termination.
The predecessor to section 31-35-6-4, however, stated that termination of parental
rights "shall divest the parent and the child of all legal rights, privileges, duties
and obligations, including rights of inheritance, with respect to each other." BURNS
IND. CODE ANN. § 31-3-1-7(g) (1976) (repealed and replaced by § 31-6-5-6, effective
October 1, 1979). [2] The rules of statutory construction provide that when the legislature changes the
text of a statutory provision, it is presumed that a change of meaning was also intended.
See City of Fort Wayne v. Slattery, 791 N.E.2d 807, 811 (Ind. App. 2003). Because the legislature deleted from the statutory
text language stating that termination of parental rights results in termination of
the child's inheritance rights, it is presumed that the legislature intended to repeal
that provision.
Michigan
In Michigan, the termination of parental rights (absent subsequent adoption) does
not terminate a child's right to inherit from its natural parents. See MICH. COMP. LAWS ANN. § 700.2114(1), (3) (2003). Subsection (1) states that, except
as provided in subsections (2) (pertaining to adoption) (3) (discussed below) and
(4) (inapplicable for the objectives of this memorandum), "for purposes of intestate
succession by, through or from an individual, an individual is the child of his or
her natural parents...." Subsection (3) provides that "the permanent termination of
parental rights" only terminates the right of the natural parents to inherit from
or through the child for purposes of intestate succession. Thus, the child's right
to inherit from the natural parents remains intact unless that child is actually adopted
by other individuals. See MICH. COMP. LAWS ANN. § 700.2114(2) ("An adopted child is the child of his or her
adoptive parent or parents and not of his or her natural parents"). The predecessor
to this law, however, provided that the termination of parental rights ended kinship
for inheritance purposes for both the parent and the child. See MICH. COMP. LAWS ANN. § 700.110(1) (West 2000). We previously advised that, effective
April 1, 2000, the permanent termination of parental rights of a minor by order of
a court, by a release given by the parent for purposes of adoption, or by any other
legal process, ends intestate succession by the parent through the child only (i.e.,
the child can still inherit from the parents). However, prior to that date, termination
of parental rights cuts off the right of both the parent and the child to inherit
from the other. See Amendments to the Michigan Revised Probate Code, Memorandum from Regional Chief Counsel,
Region V, to Assistant Regional Commissioner, Management and Operations Support (Dec.
11, 2002), at 2.
Minnesota
In Minnesota, a child's right to inherit from its natural parents is severed at the
time parental rights are terminated. See In re Estate of Braa, 452 N.W.2d 686, 688 (Minn. 1990) (finding that MINN. STAT. § 260.241(1) (now § 260C.317)
does not preserve a child's right to inherit from a natural parent after parental
rights are terminated); In the Matter of the Welfare of J.D.N., 504 N.W.2d 54, 58 (Minn. App. 1993) (recognizing that when parental rights are terminated,
the child loses its right to intestate succession because the natural parent is relieved
of the corresponding obligations arising from that right).
Ohio
In Ohio, the termination of parental rights does not terminate a child's right to
inherit from its natural parents. The right to inherit from a natural parent is terminated
only upon the adoption of the child by other parents. See OHIO REV. CODE. ANN. § 3107.15(A)(1) (2003); Mauer v. Becker, 271 N.E.2d 255 (Ohio 1971) (interpreting chapter 3107 to mean that only adoption
severs inheritance rights between the child and its legal parents); see also In re Freeland, No. 19960, 2000 WL 1201287 (Ohio App. 9 Dist. Aug. 9, 2000) (unpublished decision); Pledgure v. Goutras, No. 2000-CA-0035, 2000 WL 492578 (Ohio App. 5 Dist. Apr. 3, 2000) (unpublished decision).
Wisconsin
In Wisconsin, it appears that the termination of parental rights does terminate a
child's right to inherit from its natural parents. Wisconsin statute provides that
termination of parental rights "means that...all rights, powers, privileges, immunities
and obligations existing between parent and child are permanently severed." WIS. STAT.
§ 48.40(2) (2003). The Wisconsin supreme court held that a prior version of this statute,
which provided for termination of "all rights of parents," severed the right of the
natural parents to inherit from the child. See In re Estate of Pamanet, 175 N.W.2d 234, 235-36 (Wis. 1970). The court reasoned that the term "all rights"
was clear and unambiguous and that "[i]f the legislature had intended to say, all
rights except for the right to inherit..., it would have said so." Id. at 235. The legislature subsequently amended section 48.40 and included language
that evinced an intent to make the effect of termination reciprocal between natural
parent and child. See WIS. STAT. § 48.40(2) (stating that termination of parental rights means that "all
rights...existing between parent and child" are severed) (emphasis added). In Estate of Pamanet, the court noted that if this language were adopted, it would cut off a child's right
to inherit from the parent as well. Id. at 236 (indicating that the legislature had previously contemplated, but had rejected
a statutory version which provided that both parental rights and a child's right to
inherit would end upon the termination of parental rights). "A revised statute is
to be understood in the same sense as the original unless the change in language [clearly]
indicates a different meaning." See WIS. STAT. § 990.001(7); Seider v. O'Connell, 612 N.W.2d 659, 667 n.4 (Wis. 2000). Thus, given the amendatory language and the
Wisconsin Supreme Court's indication that this language would cut off inheritance
rights of children when parental rights are severed, we presume that a child cannot
inherit from its natural parents after parental rights have been terminated on or
after April 10, 1996 (the effective date of the statutory amendment).
CONCLUSION
We recommend that POMS be amended, as indicated above, to reflect applicable state
laws. We also recommend that questions pertaining to specific fact scenarios be submitted
for a legal opinion.