[Federal Register Volume 65, Number 75 (Tuesday, April 18, 2000)]
[Rules and Regulations]
[Pages 20725-20727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9515]


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RAILROAD RETIREMENT BOARD

20 CFR Part 222

RIN 3220-AB40


Family Relationships

AGENCY: Railroad Retirement Board.

ACTION: Final rule.

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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

[[Page 20726]]

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, 
(312) 751-4945, TDD (312) 751-4701.

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 Secs. 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 Sec. 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, 
Sec. 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 Sec. 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 Sec. 5119(a) of Public 
Law 101-508. Accordingly, this amendment also deletes the now obsolete 
requirement contained in Sec. 222.14(d) of the Board's regulations.
    On December 8, 1999, the Board published the revisions to 
Secs. 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.

Sec. 222.14  [Amended]

    2. Section 222.14(d) is removed.

    3. Section 222.31 is revised as follows:


Sec. 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 Sec. 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 
Sec. 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 Secs. 222.32-222.33.

    3. Section 222.32 is revised to read as follows:


Sec. 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;

[[Page 20727]]

    (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 Secs. 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 Sec. 222.33 to read as follows:


Sec. 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.
[FR Doc. 00-9515 Filed 4-17-00; 8:45 am]
BILLING CODE 7905-01-P