U n i t e d S t a t e s G o v e r n m e n t

M e m o r a n d u m

FORN 0-1151 (1-12)

R a i l r o a d R e t i r e m e n t b o a r d

TO

FROM

Office of Retirement and Survivor Programs 

Chief of Compliance -

Steven A. BartholowMU2'^

Deputy General Counsel 

Through: Catherine C. Cook(

General Counsel

L-9

SUBJECT Recovery of Employee Overpayment from Spouse's Accrual

This is in response to your memorandum dated November 14, 1994, wherein you inquire as to 

whether the spouse’s accrual may be used in whole or in part for recovery of the employee’s 

overpayment due to excess earnings. You further ask whether the overpayment involves a split

family group which would prohibit recovery from the spouse’s accrual.

The facts in this case, as I understand them, are as follows. The employee has an outstanding 

overpayment of $4,632.18 due to excess earnings for 1988 and 1990 through 1992. He has 

protested the proposed recovery of the overpayment from his current annuity. The employee’s 

former spouse has an accrual of benefits due in the amount of $8,893.18 for the period of June 

1, 1986 through May 31, 1988. She has advised the Board that she was separated from the 

employee as of September 1987 and divorced May 1989.

Section 10(a) of the Railroad Retirement Act provides that benefits erroneously paid may be 

recovered by offset against any future benefits payable to any person who receives benefits on 

the same compensation record as the overpaid individual. In Legal Opinion L-68-2, we 

determined that recovery under section 9(a) of the Railroad Retirement Act of 1937 (the 

predecessor of section 10(a)) should generally be made only from benefits due members of the 

same family group as the overpaid individual.

This so-called "split family group" doctrine is included in the proposed revisions to Part 255 

presently before the Board. Proposed section 255.4(b) of the revision states that the Board may 

recover an overpayment from a person other than the overpaid individual if such person is 

receiving benefits under a statute administered by the Board. However, proposed section 

255.4(c) states that recovery under paragraph (b) of this section may be made from an individual 

who is no$ of the same household as the overpaid individual only if such person was aware that 

benefits were being erroneously paid or benefited from the overpayment. This is in accord with 

Legal Opinion L-79-4, which stated that recovery can be sought against a competing family
2

Office of Retirement and Survivor Programs 

Chief of Compliance

group in an "exceptional case" where a member of a competing family group contributed either 

intentionally or through negligence to the overpayment, or where the overpayment benefited the 

competing family group.

Generally, the spouse's accrual may be used in whole or in part for recovery of an overpayment 

made to the employee because the spouse and employee would be considered part of the same 

family group. However, where the spouse and employee are separated or divorced, the spouse 

would not be considered part of the same family group. In the case at hand, the employee and 

spouse were separated in September 1987 and established separate households prior to the initial 

date of the overpayment. There is no evidence that the spouse had knowledge of the 

overpayment or that she benefited from the overpayment made to the employee. Consistent with 

the longstanding interpretation accorded section 10(a) of the RRA, I would advise against 

recovery of the employee’s overpayment from benefits payable to his divorced wife.

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SPFM2719.LOP