Title 20—Employees' Benefits--Volume 1
PART 222—FAMILY RELATIONSHIPS
§ 222.1   Introduction.
This part sets forth and describes the family relationships that may make a claimant eligible for an annuity or lump-sum payment under the Railroad Retirement Act and furnishes the basic rules for determining when those relationships exist. Such relationships may result from a current or terminated marriage or through birth, death or adoption. Other relevant relationships are having a child in care, dependency or lack of it, contributing to support, living in the same household, and being under court order to contribute to support.
§ 222.2   Definitions.
As used in this part—
Annuity means a payment under the Railroad Retirement Act due to an entitlement claimant for a calendar month and made to him or her on the first day of the following month.
Apply means to sign a form or statement that the Railroad Retirement Board accepts as an application for an annuity or lump-sum payment under the rules set out in part 217 of this chapter.
Child has differing definitions for annuity and lump-sum payment purposes. See § 222.31.
Claimant means a person who files an application for an annuity or lump-sum payment or for whom an application is filed.
Eligible means that a person would meet all the requirements for payment of an annuity or lump-sum payment as of a given date but has not yet applied therefor.
Employee means an employee as defined in part 203 of this chapter.
Final divorce means a divorce that completely dissolves a marriage and restores the parties to the status of single persons; it is also referred to as an absolute divorce.
Finally divorced person means a person whose marriage has been terminated or dissolved by a final divorce.
Legal impediment means that there was a defect in the procedures followed in a marriage ceremony or that a previous marriage of the employee or spouse had not ended at the time of the ceremony.
Lump-sum payment means any of the following payments under the Railroad Retirement Act: lump-sum death payment, residual lump-sum, annuities due but unpaid at death, or lump-sum refund payment (see part 234 of this chapter).
Marriage means the social and legal relationship of husband and wife for family relationship purposes, as well as the act by which the married state is effected.
Permanent home means the employee's true and fixed home (legal domicile); it is the place to which the employee intends to return whenever he or she is absent therefrom.
Relationship means a family connection by blood, marriage, or adoption between the employee and another person who is a claimant.
Spouse means the husband or wife of the employee.
State law means the law of the State in which the employee has his or her permanent home or, in the case of a deceased employee, the law of the State in which the employee had his or her permanent home at the time of his or her death. If the employee's permanent home is not in one of the 50 States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American Samoa, the laws of the District of Columbia are applied.
§ 222.3   Other regulations related to this part.
This part is related to a number of other parts of this chapter:
Part 216 describes when a person is eligible for an annuity under the Railroad Retirement Act.
Part 217 describes how to apply for an annuity or for lump-sum payments.
Part 218 sets forth the beginning and ending dates of annuities.
Part 219 sets out what evidence is necessary to prove eligibility and the relationships described in this part.
Part 220 describes when a person is eligible for a disability annuity under the Railroad Retirement Act or a period of disability under the Social Security Act.
Part 225 explains how primary insurance amounts (PIA's) are computed.
Part 226 outlines the computation of employee and spouse annuities.
Part 228 describes how survivor annuities are computed.
Part 229 describes when and how an employee and spouse annuity may be increased under the social security overall minimum provision.
Part 234 describes lump-sum payments under the Railroad Retirement Act.
§ 222.4   Homicide of employee.
No person convicted of the felonious and intentional homicide of an employee can be entitled to an annuity or lump-sum payment based on the employee's earnings record (service and compensation). Further, the convicted person is considered not to exist in deciding the rights of other persons to annuity or lump-sum payments. A minor may be denied a survivor annuity or lump-sum payment on the earnings record of a parent if the minor was convicted of intentionally causing the parent's death by an act which would be considered a felony if committed by an adult.
§ 222.10   When determinations of relationship as wife, husband, widow or widower of employee are made.
(a) The claimant's relationship as the wife or husband of an employee is determined when the claimant applies for an annuity, or when there is a claim which would include a husband or wife in the computation of the social security overall minimum provision, or when a claim is filed for a lump-sum payment. If a deemed marriage (see § 222.14) is to be determined, the husband, wife, or widow(er) must also be found to be or to have been living in the same household as the employee (see § 222.16).
(b) The claimant's relationship as the widow(er) of an employee is determined as of the date on which the employee died. If the claimant applied for a lump-sum payment as the widow(er) of the employee, one of the following determinations is made:
(1) Whether the widow(er) was living in the same household as the employee, as defined in § 222.16 of this part, at the time of the employee's death, if the claimant is applying for the 1974 Act lump-sum death payment.
(2) Whether the widow(er) was living with the employee, as defined in § 222.15 of this part, at the time of the employee's death, if the claimant is applying for the 1937 Act lump-sum death payment, annuities due but unpaid at death, the residual lump-sum payment, or a lump-sum refund payment.
(c) In order for a claimant who has applied for a monthly survivor annuity to establish a deemed marriage, the claimant must have been living in the same household as the employee at the time of the employee's death (see § 222.16).
(d) If the husband, wife, widow(er), remarried widow(er), or surviving divorced spouse of the employee is a claimant for a monthly annuity on a basis other than age or disability, a child-in-care determination is required (see §§ 222.17 and 222.18).
§ 222.11   Determination of marriage relationship.
A claimant will be considered to be the husband, wife, or widow(er) of an employee if the law of the State in which the employee has or had a permanent home would recognize that the claimant and employee were validly married, or if a deemed marriage is established.
(a) Generally, State courts will find that a claimant and employee were validly married if—
(1) The employee and claimant were married in a civil or religious ceremony (see § 222.12) or
(2) The employee and claimant live together in a common-law marriage relationship which is recognized under applicable State law (see § 222.13), and no impediment to the marriage existed at the time it took place.
(b) A deemed marriage relationship may be established as described in § 222.14.
§ 222.12   Ceremonial marriage relationship.
A valid ceremonial marriage is one which would be recognized as valid by the courts of the State in which the marriage ceremony took place. Generally, State law provides various procedures which must be followed, such as designation of who may perform the marriage ceremony, what licenses or witnesses are required, and similar rules. A ceremonial marriage may be a civil or religious ceremony, or a ceremony which follows tribal customs, Chinese customs, or similar traditional procedures.
§ 222.13   Common-law marriage relationship.
Under the laws of some States, a common-law marriage is one which is not solemnized in a formal ceremony, but is generally evidenced by a consummated agreement to marry between two persons legally capable of making a marriage contract, followed by cohabitation. The laws of the various States which recognize common-law marriage delineate specific factors which must be present in order to establish a valid common-law marriage in those States.
§ 222.14   Deemed marriage relationship.
If a ceremonial or common-law marriage relationship cannot be established under State law, a claimant may still be found to have the relationship as spouse of an employee based upon a deemed marriage. A claimant is deemed to be the wife, husband, or widow(er) of the employee if the person's marriage to the employee would have been valid under State law except for a legal impediment, and all of the following requirements are met:
(a) The claimant married the employee in a civil or religious ceremony.
(b) The claimant went through the marriage ceremony in good faith. Good faith means that at the time of the ceremony the claimant did not know that a legal impediment existed, or if the claimant did know, he or she thought that it would not prevent a valid marriage.
(c) The claimant was living in the same household as the employee (see § 222.16) when he or she applied for the spouse annuity or when the employee died.
§ 222.15   When spouse is living with employee.
A spouse, or widow(er) is living with the employee if—
(a) He or she and the employee are living in the same household; or
(b) The employee is contributing to the support of the spouse or widow(er); or
(c) The employee is under court order to contribute to the support of the spouse or widow(er).
§ 222.16   When spouse is living in the same household with employee.
(a) Living in the same household means that the employee and spouse customarily live together as a married couple in the same residence.
(b) The employee and spouse are also considered members of the same household when they live apart but expect to resume or continue living together after a temporary separation.
(c) If the employee and spouse were separated solely for medical reasons, the Board will consider them “living in the same household” even if the separation was likely to be permanent.
§ 222.17   “Child in care” when child of the employee is living with the claimant.
“Child in care” means a child who has been living with the claimant for at least 30 consecutive days unless—
(a) The child is in active military service;
(b) The child is 18 years old (16 with respect to male spouse, divorced spouse, surviving divorced spouse, or remarried widow(er) annuities) or older and is not disabled;
(c) The child is 18 years old (16 with respect to male spouse, divorced spouse, surviving divorced spouse, or remarried widow(er) annuities) or older with a mental disability and the claimant does not exercise parental control and responsibility; or
(d) The child is 18 years old (16 with respect to male spouse, divorced spouse, surviving divorced spouse, or remarried widow(er) annuities) or older with a physical disability, but it is not necessary for the claimant to perform personal services for the child.
(e) Parental control and responsibility for the care and welfare of the child means that the parent supervises the child's activities and makes important decisions about the child's needs either alone or with another person. Personal services are services such as dressing, feeding and managing money which the child cannot do alone because of a disability.
§ 222.18   “Child in care” when child of the employee is not living with the claimant.
(a) When child is in care. A child living apart from a claimant is in that claimant's care if—
(1) The child lives apart or is expected to live apart from the claimant for not more than six months; or
(2) The child is under 18 years old (16 with respect to male spouse, divorced spouse, surviving divorced spouse, or remarried widow(er) annuities), the claimant supervises the child's activities and makes important decisions about his or her needs, and one of the following circumstances applies:
(i) The child is living apart because of attendance at school but generally spends a vacation of at least 30 consecutive days with the claimant each year, and, if the claimant and the child's other parent are separated, the school must look to the claimant for decisions about the child's welfare.
(ii) The child is living apart because of the claimant's employment but the claimant makes regular and substantial contributions to the child's support. “Contributing to support” is defined in § 222.42.
(iii) The child is living apart because of the child's or the claimant's physical disability; or
(3) The child is 18 years old (16 with respect to male spouse, divorced spouse, surviving divorced spouse, or remarried widow(er) annuities) or older and is mentally disabled and the claimant supervises the child's activities, makes important decisions about the child's needs, and helps in the child's upbringing and development.
(b) When child is not in care. A child living apart from a claimant is not in the claimant's care if—
(1) The child is in active military service; or
(2) The child is living with his or her other parent; or
(3) A court order removed the child from the claimant's custody and control; or
(4) The claimant gave the right to custody and control of the child to someone else; or
(5) The claimant is mentally disabled.
§ 222.20   When determination of relationship as divorced spouse, surviving divorced spouse, or remarried widow(er) is made.
(a) Divorced spouse. The claimant's relationship as the divorced spouse of an employee is determined when the purported divorced spouse applies for an annuity, or when there is a claim which would include a divorced spouse in the computation of the social security overall minimum provision. Such a determination is also made when a spouse annuitant age 62 or over secures a final divorce from the employee after 10 years of marriage.
(b) Surviving divorced spouse. The claimant's relationship as the surviving divorced spouse of an employee is determined when the purported surviving divorced spouse applies for an annuity on the basis of age, disability, or having a child in care. Such a determination is also made when there is a divorced spouse annuitant and the employee dies.
(c) Remarried widow(er). The claimant's relationship as a remarried widow(er) of an employee is determined when the purported remarried widow(er) applies for an annuity. Such a determination is also made when a widow(er) who is receiving an annuity remarries after age 60, or when a widow(er) who is receiving a disability annuity remarries after age 50.
§ 222.21   When marriage is terminated by final divorce.
A final divorce, often referred to as an absolute divorce, completely dissolves the marriage relationship and restores the parties to the status of single persons. A legal separation, qualified or preliminary divorce, divorce from bed and board, interlocutory decree of divorce, or similar court order is not considered a final divorce for family relationship and benefit entitlement purposes.
§ 222.22   Relationship as divorced spouse.
A claimant will be considered to be the divorced spouse of an employee if—
(a) His or her marriage to the employee has been terminated by a final divorce; and
(b) He or she is not married (if the claimant remarried after the divorce from the employee, the later marriage has been terminated by death, final divorce, or annulment); and
(c) He or she had been validly married to the employee, as set forth in § 222.11, for a period of 10 years immediately before the date the divorce became final. The claimant meets this requirement even if the claimant and employee were divorced within the ten-year period, provided that the claimant and employee were remarried no later than the calendar year immediately following the year in which the divorce took place.
§ 222.23   Relationship as surviving divorced spouse.
A claimant will be considered to be the surviving divorced spouse of a deceased employee if the conditions in either paragraph (a) or (b) of this section are met:
(a) Age or disability. The claimant applied for an annuity on the basis of age or disability, and the conditions set forth in § 222.22 are met.
(b) Child in care. The claimant applied for an annuity on the basis of having a child in care, and—
(1) His or her marriage to the employee has been terminated by a final divorce; and
(2) He or she is not married (if the claimant remarried after the divorce from the employee, the later marriage has been terminated by death, final divorce, or annulment); and
(3) He or she either—
(i) Was the natural parent of the employee's child; or
(ii) Had been married to the employee when either the employee or the claimant legally adopted the other's child or when they both legally adopted a child who was then under 18 years of age.
§ 222.24   Relationship as remarried widow(er).
(a) New eligibility. A claimant will have the relationship of a remarried widow(er) if he or she is the widow(er), as discussed in § 222.11, of an employee and the claimant—
(1) Remarried after attaining age 60, or remarried after attaining age 50 and after the date on which he or she became disabled; or
(2) Remarried before attaining age 60, but is now unmarried, or remarried before attaining age 50 or before the date on which he or she became disabled, but is now unmarried.
(b) Reentitlement. A claimant will have the relationship of a remarried widow(er) if he or she remarries after his or her entitlement to an annuity as a widow(er) has been established, and the claimant—
(1) Remarries after attaining age 60, or remarries after attaining age 50 and after the date on which he or she became disabled; or
(2) Is entitled to an annuity based upon having a child of the employee in care and remarries, but this marriage is to a person who is entitled to a retirement, disability, widow(er)'s, mother's, father's, parent's, or disabled child's benefit under the Railroad Retirement Act or Social Security Act.
§ 222.30   When determinations of relationship as child are made.
(a) Determinations will be made regarding a person's relationship as the child of the employee and that person's dependency on the employee (see subpart F of this part) when—
(1) The wife or husband of an employee applies for a spouse's annuity based on having the employee's child in care; or
(2) The employee's annuity can be increased under the social security overall minimum provision based on the child; or
(3) The employee dies and the claimant applies for a child's annuity.
(b) A determination will be made regarding a claimant's relationship as the child of the employee when the claimant applies for a share of a lump-sum payment as a child.
§ 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.
§ 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.
§ 222.33   Relationship resulting from legal adoption.
(a) Adopted by employee. A claimant will be considered to be the child of the employee for both annuity and lump-sum payment purposes if the employee legally adopted the claimant in accordance with applicable State law. Legal adoption differs from equitable adoption in that in the case of legal adoption formal adoption proceedings have been completed in accordance with applicable State law and such proceedings are not defective.
(b) Adopted by widow or widower. A claimant who is legally adopted by the widow or widower of the employee after the employee's death will be considered to be the child of the employee for annuity but not for lump-sum payment purposes if—
(1) Either the claimant is adopted by the widow or widower within two years after the date on which the employee died, or the employee commenced proceedings to legally adopt the claimant before the employee's death; and
(2) The claimant was living in the employee's household at the time of the employee's death; and
(3) The claimant was not receiving regular support contributions from any other person other than the employee or spouse at the time of the employee's death.
(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.
§ 222.34   Relationship resulting from equitable adoption.
In many States, where a legal adoption proceeding was defective under State law or where a contemplated legal adoption was not completed, a claimant may be considered to be an equitably adopted child. A claimant will have the relationship of an equitably adopted child for annuity and lump-sum payment purposes if, in addition to meeting the other requirements of this part—
(a) The employee had agreed to adopt the claimant; and
(b) The natural parents or the person legally responsible for the care of the claimant agreed to the adoption; and
(c) The employee and the claimant lived together as parent and child; and
(d) The agreement to adopt is recognized under applicable State law such that, if the employee were to die without leaving a will, the claimant could inherit a share of the employee's personal estate as the child of the employee.
§ 222.35   Relationship as stepchild.
A claimant will be considered to have the relationship of stepchild of an employee, and will be considered a child for annuity but not for lump-sum benefit purposes if—
(a) The claimant's natural or adoptive parent married the employee after the claimant's birth; and
(b) The marriage between the employee and the claimant's parent is a valid marriage under applicable State law (see §§ 222.12 and 222.13), or would be valid except for a legal impediment; and
(c) The employee and the claimant's parent were married at least one year before the date—
(1) On which the spouse applies for an annuity based on having the employee's child in care; or
(2) On which the employee's annuity can be increased under the social security overall minimum provision; or
(d) The employee and the claimant's parent were married at least nine months before the date on which the employee died if the claimant is applying for a child's annuity; or if the employee and the claimant's parent were married less than nine months, the employee was reasonably expected to live for nine months, and—
(1) The employee's death was accidental; or
(2) The employee died in the line of duty as a member of the armed forces of the United States; or
(3) The widow(er) was previously married to the employee for at least nine months.
§ 222.36   Relationship as grandchild or stepgrandchild.
A claimant will have the relationship of grandchild or stepgrandchild of an employee, or the grandchild or stepgrandchild of an employee's spouse, and be considered a child for annuity purposes if the requirements in both paragraph (a) and either paragraph (b) or (c) of this section are met.
(a) The claimant is the natural child, adopted child, or stepchild of a child of an employee, or of a child of the employee's spouse as defined in this subpart;
(b) The claimant's natural or adoptive parents are deceased or are disabled, as defined in section 223(d) of the Social Security Act, in the month in which—
(1) The employee, who is entitled to an age and service or disability annuity, under the Railroad Retirement Act, would also be entitled to an age benefit under section 202(a) of the Social Security Act or a disability benefit under section 223 of the Social Security Act, if his or her railroad compensation were considered wages under that Act; or
(2) The employee dies; or
(3) The employee's period of disability begins, if the employee has a period of disability which continues until he or she could be entitled to a social security benefit as described in paragraph (b)(1) of this section or until he or she dies.
(c) The claimant was legally adopted in the United States by the employee's widow(er) after the employee's death, and the claimant's natural or adoptive parent or stepparent was not living in the employee's household and making regular contributions to the claimant's support at the time the employee died.
A grandchild or stepgrandchild does not have the relationship of “child” for lump-sum payment purposes (see § 222.44).
§ 222.40   When determinations of relationship are made for parent, grandchild, brother or sister.
(a) Parent. The claimant's relationship as a parent of the employee is determined when the claimant applies for an annuity or for lump-sum payments.
(b) Grandchild. The claimant's relationship as a grandchild, rather than as a child, of the employee is determined when the claimant applies for lump-sum payments.
(c) Brother or sister. The claimant's relationship as a brother or sister of the employee is determined when the claimant applies for lump-sum payments.
§ 222.41   Determination of relationship and support for parent.
(a) Annuity claimant. For purposes of applying for an annuity, a claimant is considered the employee's parent when the claimant—
(1) Is the natural mother or father of the employee, and is considered the employee's parent under the law of the State in which the employee had a permanent home when the employee died; or
(2) Is a person who legally adopted the employee before the employee became 16 years old; or
(3) Is a stepparent who married the employee's natural or adoptive parent before the employee became 16 years old (the marriage must be valid under the law of the State in which the employee had a permanent home when the employee died); and
(4) Was receiving at least one-half support from the employee (see §§ 222.42 and 222.43 of this part) either when the employee died or at the beginning of the period of disability, if the employee had a period of disability.
(b) Lump-sum payment claimant. For purposes of applying for lump-sum payments, a claimant is considered the employee's parent when he or she—
(1) Is the natural mother or father of the employee, and is considered the employee's parent under applicable State law; or
(2) Legally adopted the employee, if thereby recognized as a parent under applicable State law; but
(3) The claimant need not have received one-half support from the employee.
§ 222.42   When employee is contributing to support.
(a) An employee is contributing to the support of a person if the employee gives cash, goods, or services to help support such person. Support includes food, clothing, housing, routine medical care, and other ordinary and necessary living expenses. The value of any goods which the employee contributes shall be based upon the replacement cost of those goods at the time they are contributed. If the employee provides services that would otherwise require monetary payment, the cash value of the employee's services may be considered a contribution to support.
(b) The employee is contributing to the support of a person if that person receives an allotment, allowance, or benefit based upon the employee's military pay, veteran's pension or compensation, social security earnings, or railroad compensation.
(c) Contributions must be made regularly and must be large enough to meet an important part of the person's ordinary and necessary living expenses. If the employee provides only occasional gifts or donations for special purposes, they will not be considered contributions for support. Although the employee's contributions must be made on a regular basis, temporary interruptions caused by circumstances beyond the employee's control, such as illness or unemployment, will be disregarded unless during these interruptions someone else assumes responsibility for support of the person on a regular basis.
§ 222.43   How the one-half support determination is made.
(a) Amount of contributions. The employee provides one-half support to a person if the employee makes regular contributions to that person's support, and the amount of the contributions is equal to or in excess of one-half of the person's ordinary and necessary living expenses. Ordinary and necessary living expenses are the costs for food, clothing, housing, routine medical care, and similar necessities. A contribution may be in cash, goods, or services (see § 222.42 of this part). For example, an employee pays rent and utilities amounting to $6,000 per year on an apartment in which his mother resides. In addition, the employee's mother receives $3,600 per year in social security benefits which she uses to pay for her food, clothing and medical care. The mother's total necessary living expenses are $9,600 ($6,000 + $3,600). Since the employee contributes $6,000 toward these expenses, he is contributing in excess of one-half of his mother's support.
(b) Reasonable period of time. The employee is not providing at least one-half of a person's support unless the employee has made contributions for a reasonable period of time. Ordinarily, the Board will consider a reasonable period of time to be the 12-month period immediately preceding the time when the one-half support requirement must be satisfied. However, if the employee provided one-half or more of the person's support for at least 3 months of the 12-month period, and was forced to stop or reduce contributions because of circumstances beyond his or her control, such as illness or unemployment, and no one else took over responsibility for providing at least one-half of the person's support on a permanent basis, three months shall be considered a reasonable period of time.
§ 222.44   Other relationship determinations for lump-sum payments.
Other claimants will be considered to have the relationships to the employee shown below for lump-sum payment purposes:
(a) Grandchildren. A grandchild is a separate class of beneficiary to be considered for lump-sum payments and is not a child of the employee; he or she is a child of the employee's son or daughter as determined under State law. A stepgrandchild is not included in this class of beneficiary.
(b) Brother or Sister. “Brother” or “Sister” means a full brother or sister or a half brother or half sister, but not a stepbrother or stepsister.
§ 222.50   When child dependency determinations are made.
(a) Dependency determination. One of the requirements for a child's annuity or for increasing an employee or spouse annuity under the social security overall minimum provision on the basis of the presence of a child in the family group is that the child be dependent upon the employee. The dependency requirements and the time when they must be met are explained in §§ 222.51 through 222.57.
(b) Related determinations. To prove a child's dependency, an applicant may be asked to show that at a specific time the child lived with the employee, that the child received contributions for his or her support from the employee, or that the employee provided at least one-half of the child's support. The terms “living with”, “contributing to support”, and “one-half support” are defined in §§ 222.58, 222.42, an 222.43. These determinations are required when—
(1) A natural child or legally adopted child of the employee is adopted by someone else; or
(2) The child claimant is the stepchild, grandchild, or equitably adopted child of the employee.
§ 222.51   When a natural child is dependent.
The employee's natural child, as defined in § 222.32, is considered to be dependent upon the employee. However, if the child is legally adopted by someone else during the employee's lifetime and, after the adoption, a child's annuity or other annuity or annuity increase is applied for on the basis of the employee's earnings record and the relationship of the child to the employee, the child will be considered dependent upon the employee (the natural parent) only if he or she was either living with the employee or the employee was contributing to the child's support when either:
(a) A spouse's annuity begins; or
(b) The employee's annuity can be increased under the social security overall minimum provision; or
(c) The employee dies; or
(d) If the employee had a period of disability which lasted until he or she could have become entitled to an age or disability benefit under the Social Security Act (treating the employee's railroad compensation as wages under that Act), at the beginning of the period of disability or at the time the employee could have become entitled to the benefit.
§ 222.52   When a legally adopted child is dependent—general.
(a) During employee's lifetime. If the employee adopts a child before he or she could become entitled to a social security benefit (treating his or her railroad compensation as wages under that Act), the child is considered dependent upon the employee. If the employee adopts a child, unless the child is his natural child or stepchild, after he or she could become entitled to an old age or disability benefit under the Social Security Act (treating his or her railroad compensation as wages under that Act), the child is considered dependent on the employee only if the requirements of § 222.53 are met.
(b) After employee's death. If the surviving spouse of an employee adopted a child after the employee's death, the child is considered dependent on the employee if either—
(1) The employee began proceedings to adopt the child prior to his or her death, or the surviving spouse adopted the child within two years after the employee's death; and
(2) The child was living in the employee's household at the time of the employee's death; and
(3) The child was not receiving regular contributions from any person, including any public or private welfare organization, other than the employee or spouse at the time of the employee's death.
§ 222.53   When a legally adopted child is dependent—child adopted after entitlement.
A child who is not the employee's natural child or stepchild, and who is adopted by the employee after the employee could become entitled to an old age or disability benefit under the Social Security Act (treating his or her railroad compensation as wages under that Act), is considered dependent on the employee during the employee's lifetime only if—
(a) The child had not attained age 18 when adoption proceedings were commenced, and the child's adoption was issued by a court of competent jurisdiction within the United States; or
(b) The child had attained age 18 before adoption proceedings were commenced, the child's adoption was issued by a court of competent jurisdiction within the United States, and the child was living with or receiving at least one-half of the child's support from the employee for the year immediately preceding the month in which the adoption was issued.
§ 222.54   [Reserved]
§ 222.55   When a stepchild is dependent.
An employee's stepchild, as described in § 222.35, is considered dependent on the employee if the stepchild receiving at least one-half of his or her support from the employee at one of the times shown in § 222.51.
§ 222.56   When a grandchild or stepgrandchild is dependent.
An employee's grandchild or stepgrandchild, as described in § 222.36, is considered dependent on the employee if the requirements in both paragraphs (a) and (b), or paragraph (c) of this section are met:
(a) The grandchild or stepgrandchild was living with the employee before the grandchild or stepgrandchild attained age 18.
(b) The grandchild or stepgrandchild is living with the employee in the United States and receives at least one-half of his or her support from the employee for the year before the month in which—
(1) The employee could become entitled to an age and service or disability annuity under the Social Security Act (treating his or her railroad compensation as wages under that Act); or
(2) The employee dies; or
(3) The employee becomes entitled to a period of disability that lasts until he or she could become entitled to a social security benefit as described above or until he or she dies.
(c) In the case of a grandchild or stepgrandchild born within the one-year period referred to in paragraph (b) of this section, at the close of such period the child must have been living with and receiving at least one-half of his or her support from the employee for substantially all of the period that began on the date the grandchild or stepgrandchild was born. “Substantially all” is defined in § 222.53.
§ 222.57   When an equitably adopted child is dependent.
An employee's equitably adopted child, as defined in § 222.34, is considered dependent upon the employee if the employee was either living with or contributing to the support of the child at the time of his or her death. If the equitable adoption is found to have occurred after the employee could have become entitled to an old age or disability benefit under the Social Security Act (treating his or her railroad compensation as wages under that Act), the child is not considered dependent on the employee during the employee's lifetime. If the equitable adoption took place before such time, the child is dependent on the employee if the employee was living with or contributing to the support of the child at one of the times shown in § 222.51.
§ 222.58   When a child is living with an employee.
A child is living with the employee if the child normally lives in the same household with the employee and the employee has parental control and authority over the child's activities. The child is considered to be “living with” the employee while they are living apart if they expect to live together again after a temporary separation. A temporary separation may include the employee's absence because of working away from home or hospitalization. However, the employee must have parental control and authority over the child during the period of temporary separation. A child who is in active military service or in prison is not “living with” the employee, since the employee does not have parental control over the child.