00-9515. Family Relationships

AGENCY:

Railroad Retirement Board.

ACTION:

Final rule.

SUMMARY:

The Railroad Retirement Board (Board) hereby amends its regulations on determining whether a natural child has inheritance rights under appropriate state law and therefore may be entitled to railroad retirement benefits as the child of an insured employee. The Board also clarifies its regulation regarding status as a legally adopted child of an insured employee. Such revisions are necessary because of a change in the regulations of the Social Security Administration, which became effective November 27, 1998. The Board also deletes an obsolete provision in its regulations providing that an individual may qualify as a deemed spouse only if there is no legal spouse who is entitled to a railroad retirement annuity or social security benefit.

EFFECTIVE DATE:

April 18, 2000.

FOR FURTHER INFORMATION CONTACT:

Marguerite P. Dadabo, Senior Attorney, [phone], TDD [phone].

SUPPLEMENTARY INFORMATION:

Section 2(d)(4) of the Railroad Retirement Act (RRA) references section 216(h) of the Social Security Act for purposes of determining whether an individual is the child of the insured employee for entitlement to a surviving child's annuity. In addition, the Board must look to the Social -Security Act to determine the status of a child for increasing a disability annuitant's annuity under the social security overall minimum provided in section 3(f)(3) of the RRA. See part 229 of this chapter. Section 216(h)(2)(A) of the Social Security Act provides that the Social Security Administration (SSA) looks to the law of the state in which the wage earner was domiciled regarding the devolution of intestate personal property to determine who would be a child for inheritance purposes.

The SSA has announced final regulations which revise its procedures for determining whether a child has inheritance rights under the appropriate state law and, thus, may be entitled to social security benefits as the child of an insured worker (63 FR 57590, October 28, 1998). Specifically, those rules have been revised to explain which state law will be applied, how SSA will apply state law requirements on time limits for determining inheritance rights, and how it will apply state law requirements for a court determination of paternity. The current rule on determining an applicant's status as a legally adopted child of an insured individual is also clarified. As a consequence, the Board must amend part 222 of its regulations, which deals with determining family relationships, to conform to SSA's new regulations.

The Board revises §§ 222.31 and 222.32 to provide that the status of child will be determined by applying the state inheritance law of the employee's domicile that is in effect when the claim for benefits is adjudicated. If the child does not have inheritance rights under that version of state law, the state law that was in effect when the insured died will be examined to determine if the status of child is met at that time.

Many state laws impose time limits within which someone must act to establish paternity for purposes of intestate succession in order to ensure the orderly administration of estates. New § 222.32 makes it clear that the Board will disregard these time limits since the purpose served by the limits is not relevant to the adjudication of benefits under the RRA. If the applicable inheritance law requires a formal determination of paternity to establish the status of child, § 222.32 provides that the Board will not require such a formal determination, but will rather make its own determination of paternity based upon the requirements of state law.

A “child” under the RRA includes an adopted child. The amendment to § 222.33 clarifies that in determining whether an individual is the legally adopted child of the employee, the Board will apply the adoption laws, rather than the inheritance laws, of the state or foreign country where the adoption took place.

Under section 216(h) of the Social Security Act an individual may qualify as a deemed spouse if a ceremonial or common law marriage cannot be established under state law, if that person's marriage to the employee would have been valid under state law but for a legal impediment, and the following requirements are met: there was a ceremonial marriage, the claimant went through the ceremony in good faith, and the claimant was living in the same household as the employee when he or she applied for the spouse annuity or when the employee died.

Formerly, the Social Security Act also required that no other person be entitled as the wife, husband, or widow(er)of the employee. However, this last requirement was deleted by § 5119(a) of Public Law 101-508. Accordingly, this amendment also deletes the now obsolete requirement contained in § 222.14(d) of the Board's regulations.

On December 8, 1999, the Board published the revisions to §§ 222.31—222.32 as a proposed rule (64 FR 68647) inviting comments on or before February 7, 2000. No comments were received.

The Board, with the concurrence of the Office of Management and Budget, has determined that this is not a significant regulatory action for purposes of Executive Order 12866. Therefore, no regulatory analysis is required. There are no information collections associated with this rule.

List of Subjects in 20 CFR Part 222

Railroad employees; Railroad retirement.

For the reasons set out in the preamble, the Railroad Retirement Board amends title 20, chapter II of the Code of Federal Regulations as follows:

PART 222—FAMILY RELATIONSHIPS

1. The authority citation for part 222 continues to read as follows:

Authority: 45 U.S.C. 231f.

§ 222.14

[Amended]

2. Section 222.14(d) is removed.

3. Section 222.31 is revised as follows:

§ 222.31

Relationship as child for annuity and lump-sum payment purposes.

(a) Annuity claimant. When there are claimants under paragraph (a)(1), (a)(2), or (a)(3) of § 222.30, a person will be considered the child of the employee when that person is—

(1) The natural or legally adopted child of the employee (see § 222.33); or

(2) The stepchild of the employee; or

(3) The grandchild or step-grandchild of the employee or spouse; or

(4) The equitably adopted child of the employee.

(b) Lump-sum payment claimant. A claimant for a lump-sum payment must be one of the following in order to be considered the child of the employee:

(1) The natural child of the employee;

(2) A child legally adopted by the employee (this does not include any child adopted by the employee's widow or widower after the employee's death); or

(3) The equitably adopted child of the employee. For procedures on how a determination of the person's relationship to the employee is made, see §§ 222.32-222.33.

3. Section 222.32 is revised to read as follows:

§ 222.32

Relationship as a natural child.

A claimant will be considered the natural child of the employee for both annuity and lump-sum payment purposes if one of the following sets of conditions is met:

(a) State inheritance law. Under relevant state inheritance law, the claimant could inherit a share of the employee's personal estate as the employee's natural child if the employee were to die without leaving a will as described in paragraph (e) of this section;

(b) Natural child. The claimant is the employee's natural son or daughter, and the employee and the claimant's mother or father went through a marriage ceremony which would have been valid except for a legal impediment;

(c) By order of law. The claimant's natural mother or father has not married the employee, but—

(1) The employee has acknowledged in writing that the claimant is his or her son or daughter; or

(2) A court has decreed that the employee is the mother or father of the claimant; or

(3) A court has ordered the employee to contribute to the claimant's support because the claimant is the employee's son or daughter; and,

(4) Such acknowledgment, court decree, or court order was made not less than one year before the employee became entitled to an annuity, or in the case of a disability annuitant prior to his or her most recent period of disability, or in case the employee is deceased, prior to his or her death. The written acknowledgment, court decree, or court order will be considered to have occurred on the first day of the month in which it actually occurred.

(d) Other evidence of relationship. The claimant's natural mother or father has not married the employee, but—

(1) The claimant has submitted evidence acceptable in the judgment of the Board, other than that discussed in paragraph (c) of this section, that the employee is his or her natural mother or father; and

(2) The employee was living with the claimant or contributing to the claimant's support, as discussed in §§ 222.58 and 222.42 of this part, when—

(i) The spouse applied for an annuity based on having the employee's child in care; or

(ii) The employee's annuity could have been increased under the social security overall minimum provision; or

(iii) The employee died, if the claimant is applying for a child's annuity or lump-sum payment.

(e) Use of state laws—(1) General. To determine whether a claimant is the natural child of the employee, the state inheritance laws regarding whether the claimant could inherit a child's share of the employee's personal property if he or she were to die intestate will apply. If such laws would permit the claimant to inherit the employee's personal property, the claimant will be considered the child of the employee. The state inheritance laws where the employee was domiciled when he or she died will apply. If the employee's domicile was not in one of the 50 states, the Commonwealth of Puerto Rico, the Virgin slands, Guam, American Samoa, or the Northern Mariana Islands, the laws of the District of Columbia will apply.

(2) Standards. The Board will not apply any state inheritance law requirement that an action to establish paternity must have been commenced within a specific time period, measured from the employee's death or the child's birth, or that an action to establish paternity must have been commenced or completed before the employee's death. If state laws on inheritance require a court to determine paternity, the Board will not require such a determination, but the Board will decide paternity using the standard of proof that the state court would apply as the basis for making such a determination.

(3) Employee is living. If the employee is living, the Board will apply the state law where the employee is domiciled which was in effect when the annuity may first be increased under the social security overall minimum (see part 229 of this chapter). If under a version of state law in effect at that time, a person does not qualify as a child of the employee, the Board will look to all versions of state law in effect from when the employee's annuity may first have been increased until the Board makes a final decision, and will apply the version of state law most favorable to the employee.

(4) Employee is deceased. The Board will apply the state law where the employee was domiciled when he or she died. The Board will apply the version of state law in effect at the time of the final decision on the application for benefits. If under that version of state law the claimant does not qualify as the child of the employee, the Board will apply the state law in effect when the employee died, or any version of state law in effect from the month of potential entitlement to benefits until a final determination on the application. The Board will apply the version most beneficial to the claimant. The following rules determine the law in effect as of the employee's death:

(i) Any law enacted after the employee's death, if that law would have retroactive application to the employee's date of death, will apply; or

(ii) Any law that supersedes a law declared unconstitutional, that was considered constitutional on the employee's date of death, will apply.

4. A new paragraph (c) is added to § 222.33 to read as follows:

§ 222.33

Relationship resulting from legal adoption.

* * * * *

(c) The adoption laws of the state or foreign country where the adoption took place, not the state inheritance laws, will determine whether the claimant is the employee's adopted child.

Dated: April 6, 2000.

By Authority of the Board.

Beatrice Ezerski,

Secretary to the Board.