Georgia law provides that a decree of adoption terminates all legal relationships between the adopted individual and his relatives, including his parent, so that the adopted individual thereafter shall be a stranger to his former relatives for all purposes, including inheritance.

In this case, the decree of adoption prior to the number holder's (NH) re-entitlement to Disability Insurance Benefits (DIB) cut off Claimant’s right to inherit from NH prior to the re-entitlement period. Therefore, the Claimant is not NH’s child under section 216(h)(2)(A) of the Act. Further, there is no evidence to support Claimant being deemed NH’s child under section 216(h)(3)(B).

In determining the eligibility of K~ (Claimant) for child’s insurance benefits (CIB) on the earnings record of M~, the number holder (NH), Claimant’s purported biological father, you asked whether Claimant is NH’s child when Claimant was legally adopted by another man (Father) after NH’s initial entitlement to Disability Insurance Benefits (DIB) ceased and prior to NH’s re-entitlement to DIB.

Claimant is not NH’s child for determining her eligibility for CIB on NH’s earnings record.

According to the information provided, Claimant was previously entitled to CIB on NH’s earnings record from September 2010 through May 2013 based on NH’s entitlement to DIB. NH’s DIB were medically ceased in May 2013. Father adopted Claimant in October 2013. According to the Final Decree of Adoption, NH originally objected, but later withdrew his objection to the adoption and NH’s parental rights were terminated. The Court decreed Claimant to be the adopted child of Father, with all rights of inheritance.

NH filed a new application for DIB in July 2017. NH did not protect Claimant as his child in his July 2017 application. The agency found NH re-entitled to DIB effective October 2016. Someone then filed an application on Claimant’s behalf for CIB on NH’s earnings record in December 2018.

A claimant may be eligible for CIB on the earnings record of an individual who is entitled to DIB 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) (2018).^[1] “Child” includes “the child” of an insured individual. Act § 216(e); see 20 C.F.R. § 404.354; Astrue v. Capato, 566 U.S. 541, 547-48 (2012). A claimant may show that she is “the child” of an individual entitled to DIB, within the meaning of section 216(e)(1) of the Act, by meeting the requirements of section 216(h)(2)(A) or 216(h)(3) of the Act.^[2] See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant may qualify as “the child” of an insured individual if she could inherit the insured individual’s intestate personal property under the law of the state in which the insured individual was domiciled at the time of the claimant’s application. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 566 U.S. at 548-58; POMS GN 00306.001(C)(1)(a), (C)(2)(a).

The information provided indicates that NH is domiciled in Georgia. Therefore, we look to Georgia intestacy law to determine whether Claimant is NH’s child under section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); POMS GN 00306.001(C)(1)(a), (C)(2)(a).

Under Georgia law, a child of an individual who dies without a will is entitled to a share of the decedent’s estate. See Ga. Code Ann. § 53-2-1(c)(1) (West 2018); see also Ga. Code Ann. § 53-1-2(9) (West 2018) (defining “heir” as an individual who survives the decedent and is eligible to inherit the property of the decedent not disposed of by will). Georgia law further provides that “a decree of adoption terminates all legal relationships between the adopted individual and his relatives, including his parent, so that the adopted individual thereafter shall be a stranger to his former relatives for all purposes, including inheritance . . .” Ga. Code Ann. § 19-8-19(a)(1) (West 2013);^[3] see Ga. Code Ann. § 53-1-8 (West 2018) (Georgia inheritance statute referencing § 19-8-19 regarding effect of decree of adoption on rights of inheritance). Thus, under Georgia law, the decree of adoption issued on October XX 2013, rendered Claimant no longer the child of NH for purposes of intestate succession in Georgia. See Miller v. Walker et al., 270 Ga. 811, 814-15 (1999).

The POMS notes that:

Adoption by someone other than the NH does not terminate a child’s entitlement. If the adoption occurred before the child’s application is filed, but the application has retroactivity to a point before the adoption at which all entitlement requirements are met, the adoption has no effect on determining the child’s entitlement.

POMS GN 00306.165(A).

Although Claimant here previously received CIB on NH’s record as his child, Claimant’s CIB ceased in 2013 when NH was no longer eligible for DIB. NH filed a new application for DIB in 2016. Claimant’s application for CIB on NH’s earnings record is separate from NH’s second application for DIB. Thus, Claimant’s previous receipt of CIB on NH’s earnings record does not qualify her for CIB based on her current application. The adoption here occurred before Claimant’s current CIB application and does not have retroactivity to a point before the adoption when all entitlement requirements were met. Thus, the adoption terminated Claimant’s eligibility for CIB on NH’s earnings record as his child. Further, there is no evidence in the record that Claimant was dependent on NH at the time of NH’s second application in 2016. See POMS GN 00306.165 (stating that if a child is legally adopted by someone other than NH, dependency must be established). Thus, Claimant cannot collect CIB on NH’s record as his child.

A claimant may be deemed to be the child of NH even if she cannot meet the requirements of section 216(h)(2), if she can show NH acknowledged in writing that the claimant was his daughter, the NH was decreed by court order to be the father of the claimant, or NH has been ordered by a court to contribute to the support of the claimant because the claimant is his daughter and such acknowledgement or court decree or order was made before such NH’s most recent period of disability began. Act § 216(h)(3)(B)(i). Here, there was no evidence provided of a court order or decree setting out that Claimant was NH’s daughter. The only available option under section 216(h)(3)(B)(i) would be that NH acknowledged the applicant as his daughter. Because Claimant was previously receiving DIB on NH’s earnings record, it is possible there is a written acknowledgment within the file. However, such written acknowledgment is likely dated prior to the October 2013 adoption and, therefore, is of less probative value in determining child status after the adoption. No information or documents were provided showing a written acknowledgment by NH that Claimant was his daughter after the adoption. Section 216(h)(3)(B)(ii) provides an alternative way to be deemed a child if the insured individual is shown with satisfactory evidence to be the father of the applicant and was living with or contributing to the support of the applicant at the time the application was filed. Again, no information or documents were provided to meet this section of the Act. Further, given the adoption decree and NH’s failure to protect Claimant on his 2017 application, it is likely Claimant is not living with NH or was not living with NH at the time his disability re-started and NH has not shown that he is or was contributing to her support. Thus, Claimant cannot be deemed NH’s child under section 216(h)(3)(B).

Father’s adoption of Claimant prior to NH’s re-entitlement to DIB cut off the right of Claimant to inherit from NH prior to the re-entitlement period and therefore Claimant is not NH’s child under section 216(h)(2)(A) of the Act. Further, there is no evidence to support Claimant being deemed NH’s child under section 216(h)(3)(B).

 

INHERITANCE RIGHTS — By An Adopted Child — Georgia Syllabus

In Georgia, a decree of adoption effective January 1, 1978 and subsequent thereto limits the adopted child to inheriting from his adoptive parents and their relatives exclusively. Ga. Code Ann. § 74-413.

(Effect of Adoption - State of Georgia, RA IV (W~) to Dir., IPB 8/27/82).

In your memorandum you attached a copy of Ga. Code Ann. § 74-413 which describes the effect of an adoption decree. You have concluded that effective January 1, 1978, a decree of adoption limits the adopted child to inheriting only from his adoptive parents.

This office concurs with your interpretation of Ga. Code Ann. § 74-413 that effective January 1, 1978, Georgia law generally limits an adopted child to inheriting from his adoptive parents and their relatives. Johnson, et al. v. Parrish, et al., 284 S.2d 111 (1981). However, there is one exception to the effect of an adoption decree on an adopted child's inheritance rights and this exception is set out in Ga. Code Ann. § 74-413(b). According to Ga. Code Ann. § 74-413(b), an adopted child can inherit from his deceased natural parent if that parent had not terminated his parental rights prior to his death.

Therefore, it is the opinion of this office that effective January 1, 1978 and subsequent thereto an adopted child in Georgia is limited to inheriting only from his adoptive parents and their relatives unless the adopted child's natural parent did not terminate his or her parental rights prior to the death of that natural parent. Accordingly, this office concurs that CM 2434.9 or its POMS counterpart should be corrected to reflect the effect of Ga. Code Ann. § 74-413.