QUESTION
For determining the claimant’s eligibility for child’s insurance benefits (CIB) on
the deceased number holder’s earnings record, you have asked whether the claimant
is the child of the number holder whose parental rights were terminated. You brought
to our attention Program Operations Manual System (POMS) PR 01805.027 Mississippi, which addresses the termination of an adoptive father’s parental rights,
but Claimant is the biological child of number holder, not an adopted
OPINION
The claimant is the deceased number holder’s child under Mississippi intestacy law
for determining the claimant’s eligibility for CIB on the number holder’s earning
record.
BACKGROUND
According to the information provided, Candi (Claimant’s mother) applied on behalf
of Thomas (Claimant) for CIB on the earnings record of Michael, the number holder
(NH). NH’s death certificate indicates he died on July 15, 2013, while domiciled in
Mississippi. Claimant’s mother provided a marriage certificate showing she and NH
married on February 10, 2000. A birth certificate establishes that Claimant was born
on January , shows Claimant received the name Thomas, and lists NH as his father. A
Judgment of Divorce shows Claimant’s mother and NH divorced on September 5, 2001.
A second marriage certificate shows Claimant’s mother and NH remarried on March 14,
2002. They divorced again, as evidenced by a Final Judgment (of Divorce) entered on
March 18, 2004. The Final Judgment incorporates a Separation and Property Settlement
(Settlement). The Settlement states the only child born to the marriage was Claimant
and the parties agreed “the father’s parental rights with regard to said child be
now and forever permanently terminated. No further financial support whatsoever is
required to be provided by the father and that the father has no visitation rights
whatsoever with said child.” Settlement ¶ 5. The Settlement also indicates each party
waived any right that he or she may have to inherit from the estate of the other party,
except by specific devise or bequest. Settlement ¶ 8. On July 22, 2004, Claimant’s
mother obtained a court order granting permission to change Claimant’s name to Thomas. On
August 3, 2004, Claimant’s mother obtained an amended birth certificate for Claimant
that reflected this name change. This birth certificate, too, lists NH as Claimant’s
father.
DISCUSSION
A claimant may be eligible for CIB on the earnings record of an individual who dies
a fully or currently insured individual 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) (2013). All references
to the Code of Federal Regulations are to the 2013 edition unless otherwise noted.
“Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show he is “the child” of a deceased
insured individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A)
or 216(h)(3)(C) of the Act. See C~, 132 S. Ct. at 2028. Under section 216(h)(2)(A) of the Act, a claimant is considered
“the child” of the insured individual if the claimant could inherit the insured individual’s
intestate personal property under the law of the State in which the insured individual
was domiciled when he died. A claimant may qualify as “the child” of a deceased insured
individual under section 216(h)(3)(C) of the Act if the claimant is the son or daughter
of the insured individual and shows one of the following: (1) the insured individual
acknowledged in writing that the child was his child, (2) a court decreed the insured
individual to be the father of the child, (3) a court ordered the insured individual
to contribute to the support of the child, or (4) the insured individual is the child's
father and was living with or contributing to the support of the child when the insured
individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). The acknowledgment, court
decree, or court order must have occurred before the insured individual's death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3). The information provided does not indicate SSA
could deem Claimant to be NH's child under any provision of section 216(h)(3)(C) of
the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). “When the NH’s parental
rights with respect to a child have been terminated, and the child has not been adopted
by someone else, the child does not necessarily lose inheritance rights with respect
to the NH under State law.” POMS GN 00306.001C.2.6.
NH’s death certificate indicates he was domiciled in Mississippi when he died. Therefore,
we look to Mississippi intestacy law to determine whether Claimant is NH’s child for
the purposes of section 216(h)(2)(A) of the Act. Under Mississippi law, the intestate
personal property of a deceased person descends to his or her heirs. See Miss. Code
Ann. § 91-1-11 (West 2013). Heirs include a decedent’s children. See Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 159 (Miss. 2011) (citing Miss. Code Ann. §§ 91-1-1 to 91-1-11).
Miss. Code Ann. § 93-15-109 states that upon clear and convincing evidence, a “court
may terminate all the parental rights of the parent or parents regarding the child,
and terminate the right of the child to inherit from such parent or parents.” The
Final Judgment and incorporated Settlement indicate NH and Claimant’s mother waived
any right that he or she may have to inherit from the estate of the other party, except
by specific devise or bequest. Settlement ¶ 8. However, neither the Final Judgment
nor the Settlement addressed Claimant’s right to inherit from NH, and the information
provided does not include a court order addressing or terminating Claimant’s right
to inherit from NH.
We found no Mississippi statute establishing that a child loses the right to inherit
from a parent based on a termination of the parent’s rights in the absence of a court
decree specifically terminating the child’s right to inherit from the parent. Moreover,
the Mississippi Supreme Court has held that in the absence of a statute or decree
to the contrary, Mississippi law permits an adopted child to inherit from his or her
natural parent, even though the parent’s parental rights had been terminated. See Alack v. Phelps, 230 So. 2d 789, 793 (Miss. 1970) (citing Sledge, et al v. Floyd, 104 So. 163, 165 (Miss. 1925)). The Mississippi appellate courts reaffirmed this
rule in Estate of Jones v. Howell, 687 So. 2d 1171, 1174-75 (Miss. 1996), and Jenkins v. Jenkins, 990 So. 2d 807, 810-11 (Miss. Ct. App. 2008). We recognize that these cases deal
with adopted children, but they are analogous as adoption involves termination of
parental rights, and like the adoption statute, the termination of parental rights
statute does not divest a child of inheritance rights absent a court order. See Miss. Code Ann. §§ 93-15-109, 93-17-13, as amended. Given the absence of a court
order or decree terminating Claimant’s right to inherit from NH, we believe a Mississippi
court would determine Claimant could inherit NH’s intestate personal property as NH’s
child.
CONCLUSION
Claimant is NH’s child for purposes of Mississippi intestacy law and section 216(h)(2)(A)
of the Act, even though a state court terminated NH’s parental rights. Therefore,
Claimant is NH’s child for determining his eligibility for CIB on NH’s earnings record.
Sincerely,
Mary Ann Sloan
Regional Chief Counsel
Megan E. Gideon
Assistant Regional Counsel