Can a Texas court require me to put my Social Security number on a will probate application, and is that legal under federal privacy law?

Texas AG Opinion JM-924: Can Probate Require Your Social Security Number?

Plain-English summary

In 1987 the Texas Legislature added a line to the Probate Code requiring anyone applying to probate a will to write down two Social Security numbers on the application: their own, and the deceased person's. A state senator flagged an obvious problem. There is a federal law, section 7 of the Privacy Act, that says a government agency cannot deny you a right, benefit, or privilege just because you refuse to hand over your Social Security number. So which wins, the new Texas requirement or the older federal protection?

The Attorney General split the question in two, because the two numbers on that form are not treated the same way. Start with the applicant's own number. Federal law here beats state law. The Privacy Act flatly forbids the state from denying someone a right or benefit for refusing to disclose their Social Security number, and there are only two narrow escape hatches: the disclosure is required by another federal statute, or it goes to a records system that already existed before 1975 under a pre-1975 law. Neither one fits. The federal statute that does let states demand Social Security numbers is limited to things like taxes, welfare, driver's licenses, and vehicle registration, and probate is not on that list. And the Texas provision was written in 1987, so it obviously is not a pre-1975 law. That leaves a straight conflict, and under the Supremacy Clause of the U.S. Constitution the federal law controls. So a court cannot refuse to probate a will just because the applicant would not supply their own Social Security number. The state can still ask for it, but only as a voluntary request, and only if it tells the person the disclosure is optional, cites the authority for asking, and explains how the number will be used.

The decedent's number comes out the other way. The Privacy Act protects an "individual," and the way that word is defined, plus the way the whole statute is built around a living person's control over their own information, points to living people only. There is no mechanism in the Act for a dead person to assert these rights, and as a general matter a person's right of privacy ends when they die. So requiring the deceased's Social Security number on the probate application does not run into the Privacy Act at all, and that part of the Texas provision stands.

Currency note

This opinion was issued in 1988. Later statutes, court decisions, and AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

The Texas Probate Code has since been recodified into the Estates Code, so the specific section number cited here (Probate Code section 81) no longer exists under that label, and modern probate applications and rules handle Social Security numbers and other sensitive identifiers differently, often through redaction rules for court filings. The federal Privacy Act analysis at the heart of this opinion, that a government agency cannot deny a right or benefit for refusal to disclose a Social Security number outside the statute's narrow exceptions, and that the Act protects living individuals rather than the deceased, remains the framework courts use. Anyone dealing with a probate filing today should work from the current Estates Code and the applicable court rules on protecting personal identifiers.

Who this opinion affected (as of 1988)

People probating a will: The opinion meant a probate application could not be rejected solely because the applicant declined to give their own Social Security number. They could be asked for it voluntarily, with the required federal notice.

County clerks and probate courts: The opinion told them the mandatory-disclosure language in section 81(a)(9) was unenforceable as to the applicant's own number, but that requiring the decedent's number was permissible.

The Legislature: The opinion flagged that a state statute conditioning a benefit on Social Security disclosure will fall to the federal Privacy Act unless it fits one of the Act's narrow exceptions.

Common questions

Can a Texas probate court deny my application because I won't give my Social Security number?
No. Under section 7 of the federal Privacy Act, a government agency cannot deny you a right, benefit, or privilege for refusing to disclose your Social Security number, and the Attorney General concluded probate falls under that protection. The court can ask, but cannot make it a condition.

If they ask for it voluntarily, what are they required to tell me?
Section 7(b) of the Privacy Act requires the agency to tell you whether the disclosure is mandatory or voluntary, under what statutory or other authority the number is being requested, and what uses will be made of it.

Why can they require the deceased person's Social Security number but not mine?
Because the Privacy Act protects a living "individual." There is no provision for a deceased person to assert Privacy Act rights, and a person's privacy right generally lapses at death, so requiring the decedent's number does not conflict with the federal law.

What made the mandatory requirement invalid?
The Supremacy Clause of the U.S. Constitution. When a state statute conflicts with a valid federal law, the federal law controls. Section 81(a)(9)'s mandatory disclosure of the applicant's own number conflicted with the Privacy Act, so it was invalid to that extent.

Background and statutory framework

Section 81(a) of the Probate Code, as amended by House Bill 364 of the 70th Legislature (Acts 1987, 70th Leg., ch. 463, § 1), required an application for probate of a written will to state, among other things, "the social security number of the applicant and of the decedent," to the extent known or ascertainable with reasonable diligence. The question was whether this conflicts with section 7 of Public Law 93-579, the Federal Privacy Act.

Section 7(a)(1) of the Privacy Act makes it unlawful for any federal, state, or local government agency to deny an individual any right, benefit, or privilege provided by law because of the individual's refusal to disclose a social security account number. Section 7(a)(2) sets out two exceptions: disclosures required by federal statute (subsection (2)(A)), and disclosures to a federal, state, or local agency maintaining a system of records in existence and operating before January 1, 1975, if the disclosure was required under a statute or regulation adopted before that date to verify identity (subsection (2)(B)). Section 7(b) requires an agency requesting a social security number to inform the individual whether disclosure is mandatory or voluntary, the authority for the request, and the uses that will be made of the number. Section 7 was prompted by congressional concern about the possible development of a national data bank that would allow speedy retrieval of all personal information about an individual, with a common numerical identifier like the social security number as an essential feature (S. Rep. No. 93-1183, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6916, 6943-44).

Neither exception saves the applicant-number requirement. The federal statute permitting states to require social security numbers, 42 U.S.C. § 405(c)(2)(C)(i), authorizes their use for identification in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law (see also Green v. Philbrook, 576 F.2d 440 (2d Cir. 1978) (federal law requires applicants for and recipients of Aid to Families with Dependent Children to furnish social security numbers)). Section 81(a)(9) was adopted to help courts determine the relationships and identities of applicants and decedents (Bill Analysis, Tex. H.B. 364, 70th Leg. (1987)), a purpose the federal statute does not authorize, so section 405(c)(2)(C)(i) does not cover it. Nor was the 1987 amendment a statute adopted before January 1, 1975, so the pre-1975 systems exception does not apply.

To the extent section 81(a)(9) is inconsistent with section 7 of the Privacy Act, it is invalid under the Supremacy Clause (U.S. Const. art. VI, cl. 2). An application for probate therefore may not be denied based on the applicant's refusal to supply the applicant's own social security number; the state may request it, informing the applicant the disclosure is voluntary and providing the other section 7(b) information (see Yeager v. Hackensack Water Co., 615 F. Supp. 1087 (D.N.J. 1985) (water company acting under a state water-restriction order could not obtain customers' social security numbers until it complied with the Privacy Act's disclosure provision)).

The decedent's number is treated differently. The Privacy Act defines an "individual" as a citizen of the United States or an alien lawfully admitted for permanent residence (5 U.S.C.A. § 552a(a)), terms that describe a living person, and it gives an individual rights over disclosure of information concerning him (5 U.S.C.A. § 552a(b)), with representation available only for a minor's parent or the guardian of a judicially declared incompetent (5 U.S.C.A. § 552a(h)) and no provision for representing a deceased person. That absence, combined with the definition of "individual" and the congressional purpose of limiting harm to individual privacy through misuse of information systems, indicates section 7 does not apply to the social security numbers of deceased persons; as a general rule, an individual's right of privacy lapses upon death (Attorney General Opinion H-917 (1976)). Accordingly, the requirement that the application include the decedent's social security number is not superseded by federal law and may be followed as written.

Citations

Statutory and constitutional authority:

• Texas Probate Code § 81(a)(9) (application for probate must state the social security number of the applicant and of the decedent), added by Acts 1987, 70th Leg., ch. 463, § 1 (House Bill 364)
• Federal Privacy Act § 7, Pub. L. 93-579, 88 Stat. 1905, as amended by Pub. L. 95-38, 91 Stat. 179 (reprinted at 5 U.S.C.A. § 552 historical note): § 7(a)(1) (prohibition on denial for refusal to disclose); § 7(a)(2)(A)-(B) (exceptions); § 7(b) (required notice)
• 42 U.S.C. § 405(c)(2)(C)(i) (state use of social security numbers for tax, public assistance, driver's license, and motor vehicle laws)
• 5 U.S.C.A. § 552a(a) (definition of "individual"), § 552a(b) (disclosure rights), § 552a(h) (representation of minors and incompetents)
• U.S. Const. art. VI, cl. 2 (Supremacy Clause)

Cases:

• Green v. Philbrook, 576 F.2d 440 (2d Cir. 1978) (U.S. Court of Appeals for the Second Circuit; federal law requires AFDC applicants and recipients to furnish social security numbers)
• Yeager v. Hackensack Water Co., 615 F. Supp. 1087 (D.N.J. 1985) (U.S. District Court for the District of New Jersey; entity could not obtain social security numbers until it complied with the Privacy Act's disclosure provision)

Legislative and secondary materials: S. Rep. No. 93-1183, 93d Cong., 2d Sess. (reprinted in 1974 U.S. Code Cong. & Admin. News 6916); Bill Analysis, Tex. H.B. 364, 70th Leg. (1987).

Prior Attorney General materials referenced: H-917 (1976).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-924
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0924.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. The scan garbled the date line, which reads June 27, 1988.

June 27, 1988

Honorable Kent A. Caperton
Chairman, Jurisprudence Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-924

Re: Whether section 81(a)(9) of the Probate Code, which requires an applicant for probate of a will to disclose his social security number, conflicts with section 7 of the Federal Privacy Act (RQ-1326)

Dear Senator Caperton:

You request an opinion concerning the constitutionality of section 81(a)(9) of the Probate Code, which was adopted by House Bill No. 364 of the 70th legislature. Section 81(a) of the Probate Code now reads in part:

(a) For Probate of a Written Will. A written will shall, if within the control of the applicant, be filed with the application for its probate, and shall remain in the custody of the county clerk unless removed therefrom by order of a proper court. An application for probate of a written will shall state:

. . . .

(9) The social security number of the applicant and of the decedent.

The foregoing matters shall be stated and averred in the application to the extent that they are known to the applicant, or can with reasonable diligence be ascertained by him, and if any of such matters is not stated or averred in the application, the application shall set forth the reason why such matter is not so stated and averred. (Emphasis added.)

Acts 1987, 70th Leg., ch. 463, § 1, at 4082. The underlined provision was adopted by the 70th legislature. You ask whether this provision is in conflict with section 7 of Public Law 93-579, the Federal Privacy Act.

Section 7 of the Federal Privacy Act states as follows:

(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.

(2) the provisions of paragraph (1) of this subsection shall not apply with respect to --

(A) any disclosure which is required by Federal statute, or

(B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.

(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.

Act of Dec. 31, 1974, P.L. 93-579, § 7, 88 Stat. 1905, as amended by Act of June 1, 1977, P.L. 95-38, 91 Stat. 179 (reprinted at 5 U.S.C.A. § 552 historical note).

The adoption of section 7 was prompted by congressional apprehension about the possible development of a national data bank or other information system that would allow speedy retrieval of all personal information about an individual. S. Rep. No. 93-1183, 93d Cong. 2d Sess. reprinted in 1974 U.S. Code Cong. & Admin. News 6916, 6943-44. A common numerical identifier, such as a social security account number, would be an essential feature of such a system. The social security number had been the common number most used by governmental agencies and private entities in recent years. Id.

Section 7 prohibits states from denying to an individual "any right, benefit, or privilege provided by law" because of his refusal to disclose his social security number. Section 7 sets out two exceptions to the prohibition. Subsection (2)(A) of section 7 permits disclosures required by federal statute. Section 405(c)(2)(C)(i) of title 42 permits states and political subdivisions to use social security numbers for identification "in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction" and to require individuals affected by such laws to furnish their social security numbers to the state. See also Green v. Philbrook, 576 F.2d 440 (2d Cir. 1978) (federal law requires applicants for and recipients of Aid to Families with Dependent Children to furnish social security numbers). Section 81(a)(9) was adopted to assist courts to determine the relationships between applicants and decedents and the identity of applicants and decedents. Bill Analysis, Tex. H.B. 364, 70th Leg. (1987). The federal statute does not authorize the use of social security numbers for this purpose. Thus, section 81(a)(9) of the Probate Code is not authorized by section 405(c)(2)(C)(i) of title 42.

Nor is the amended section 81(a)(9) of the Probate Code a statute adopted prior to January 1, 1975. Therefore, it is not within the exemption found in subsection 2(B) of section 7, which allows the state to require disclosure of social security numbers to an agency in operation before January 1, 1975, if the disclosure was required by a statute adopted before that date.

To the extent section 81(a)(9) of the Probate Code is inconsistent with section 7 of the Federal Privacy Act, it will be invalid under the supremacy clause of the United States Constitution. U.S. Const. art. VI, cl. 2. Section 7 of the Privacy Act prohibits a state from denying an individual a right, benefit, or privilege provided by law because of his refusal to disclose his social security account number. Therefore, an application for probate of a will may not be denied based on the applicant's refusal to supply his own social security number. The state may request that he disclose his social security number, informing him that the disclosure is voluntary, and providing the other information required by section 7(b) of the Privacy Act. See generally Yeager v. Hackensack Water Co., 615 F. Supp. 1087 (D.N.J. 1985) (water company acting under state water restriction order could not obtain social security numbers of customers until it complied with disclosure provision of Privacy Act).

We believe that the state may require the applicant to provide the decedent's social security number when applying for probate of the decedent's will. Section 7 of the Privacy Act relates to an individual's right to refuse to disclose his social security number. An "individual" is defined by the Privacy Act as "a citizen of the United States or an alien lawfully admitted for permanent residence." 5 U.S.C.A. § 552a(a). These terms describe a living person. The Privacy Act gives an individual certain rights over the disclosure of information concerning him. 5 U.S.C.A. § 552a(b). The parent of a minor or a legal guardian of an individual who has been judicially declared incompetent may act on behalf of the individual. 5 U.S.C.A. § 552a(h). There is no provision for representation of a deceased person. The absence of such a provision, combined with the definition of "individual," suggests to us that section 7 of the Federal Privacy Act does not apply to the social security numbers of deceased persons. We believe this reading of section 7 is consistent with the congressional purpose of limiting harm to individual privacy through misuse of information systems. As a general rule, an individual's right of privacy lapses upon his death. See Attorney General Opinion H-917 (1976). Based on our reading of the Federal Privacy Act, and in the absence of a contrary federal interpretation of this statute, we conclude that the requirement of Probate Code section 81(a)(9) that applications for probate include the decedent's social security number is not superseded by the federal law and may be followed as written.

SUMMARY

Section 81(a)(9) of the Probate Code is invalid as inconsistent with section 7 of the Federal Privacy Act to the extent that it requires an applicant for probate of a written will to state his social security account number on the application. The applicant may be requested to give his social security number voluntarily if he is provided the following information: whether the disclosure is mandatory or voluntary, by what statutory or other authority the number is sought, and what uses will be made of it. The federal Privacy Act does not prohibit a requirement that the decedent's social security number be included on the application.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

JENNIFER S. RIGGS
Chief, Open Government Section of the Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General