U n i t e d S t a t e s G o v e r n m Is n t form aMEMORANDUM WZ5MrT

L-2000-1

TO

FROM

SUBJECT :

This is in reply to your request for a legal opinion as to the eligibility of the 

employee’s natural son, Joseph, to a child’s insurance annuity under the RRA.

The following facts are undisputed. Joseph was bom June 30,1985 in New 

Mexico. Following blood tests to establish paternity, the employee was 

adjudicated to be Joseph’s father in a judgment entered November 17,1988 by 

the District Court of McKinley County, New Mexico. The judgment also 

ordered the employee to provide monthly support for Joseph. Joseph’s mother, 

Rhonda, married Shawn on February 9,1991. In April of 1996, a final decree of 

adoption was entered in the Probate Court of Desha County, Arkansas which 

decreed that for all legal intents and purposes, Joseph shall be the child of 

Shawn and Rhonda, and his surname was changed to be that of his parents. 

The decree also noted that consent of the child’s natural father had been filed. 

Six months later, on October 7,1996, the employee died as a result of being 

crushed between a moving locomotive and a wagon. At the time of his death, 

the employee was domiciled in Texas.

Provisions governing the eligibility of survivors are found in section 2(d) of the 

RRA which provides, in relevant part, as follows:

(1) The following described survivors of a deceased 

employee who will have completed ten years of service and will 

have had a current connection with the railroad industry at the

Philip H. Arnold

Chief of Records, Analysis & Systems 

Through: Ronald Russo

Acting Director of Policy and Systems

Steven A. Barthol 

General Counsel

Eligibility of the Natural Child of an Employee Where the 

Child has been Adopted by Another Individual
Philip H. Arnold

time of his death shall, * * * be entitled to annuities, if they have filed 

application therefor, * * *

(iii) a child (as defined in section 216 (e) and (k) of the Social 

Security Act) of such a deceased employee who (A) will be less than 

eighteen years of age, * * * and who is unmarried and was 

dependent upon the employee at the time of the employee’s death.

Section 2(d) of the RRA further provides as follows:

(4) In determining for purposes of this subsection * * * 

whether an applicant is the * * * child * * * of a deceased employee 

as claimed, the rules set forth in section 216(h) of the Social 

Security Act shall be applied. * * *

Section 216(h) of the Social Security Act provides, in part, as follows:

(2XA) In determining whether an applicant is the child * * * 

of a fully or currently insured individual * * * the Commissioner of 

Social Security shall apply such law as would be applied in 

determining the devolution of intestate personal property, * * * if 

such insured individual is dead, by the courts of the State in which 

he was domiciled at the time of his death * * * Applicants who 

according to such law would have the same status relative to 

taking intestate personal property as a child * * * shall be deemed 

such.

As previously noted, at the time of his death, the employee was domiciled in 

Texas. Where inheritance by and from an adopted child is concerned, Texas 

law provides that “The natural parent or parents of such child and their kin 

shall not inherit from or through said child, but said child shall inherit from 

and through its natural parent or parents.” Tex. Rev. Civ. Stat. Prob. Code 

Ann. § 40 (West 1989). Consequently, even though Joseph has been legally 

adopted, under the RRA, he must be considered to be the employee’s child, as 

he has the right to inherit from and through the employee under Texas law.
- 3-

Philip H. Arnold

Having determined that Joseph is the employee’s child, we must determine if 

Joseph meets the necessary age, marital status and dependency requirements 

for entitlement to an annuity under the RRA. The evidence shows Joseph is 

only 14-years-old and is unmarried. Therefore, the remaining question to be 

resolved is whether Joseph was dependent upon the employee at the time of 

his death.

Section 2(d)(4) of the RRA provides that a child shall be deemed to have been 

dependent upon his parent employee if the conditions set forth in sections 

202(d) (3), (4), or (9) of the Social Security Act are fulfilled. Section 202 (d) of the 

Social Security Act provides, in pertinent part, as follows:

(3) A child shall be deemed dependent upon his father * * *

[at the time the fully or currently insured individual dies] unless, 

at such time, such individual was not living with or contributing to 

the support of such child and -

(A) such child is neither the legitimate nor adopted child of 

such individual, or

(B) such child has been adopted by some other individual.

The employee was not living with Joseph at the time of his death and Joseph 

was adopted by another individual prior to the employee’s death.

Consequently, the circumstances for deemed support are not satisfied. 

Although a court order was issued in 1988 for the employee to provide support 

for Joseph, it does not appear the order was valid at the time of the employee’s 

death because of the intervening adoption action. Texas law provides that “an 

order terminating the parent-child relationship divests the parent and the child 

of all legal rights and duties with respect to each other, except that the child 

retains the right to inherit from and through the parent unless the court 

otherwise provides.” Tex. Fam. Code Ann. § 161.206 (West 1996). Therefore, the 

employee was divested of any legal duty to support Joseph once the adoption 

was finalized. Since the evidence fails to show that Joseph was dependent 

upon the employee at the time of the employee’s death, the application for a 

child’s annuity filed on Joseph’s behalf should be denied.

cc: Director of Programs

Director of Assessment and Training 

Director of Hearings and Appeals

NVRiDs^Trivrrik c. 3475-99 

H:\OPINIONS\Adoption.NVR