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935.5 General 

935.5.1 "Living With" Defined 

A spouse or widow(er) is "living with" if: 

A. The claimant and the employee are members of the same household; or 

B. The employee is contributing to the spouse's or widow(er)'s support; or 

C. The employee is under court order to contribute to the spouse's or widow(er)'s 

support. 

935.5.2 When "Living With" Is Required 

A. Life cases - The 1983 RR amendments eliminated the "living with" requirement 

except when: 

1. The spouse is filing as a de facto (deemed) spouse; or 

2. The spouse's entitlement may begin prior to 8-12-83. 

B. Survivor cases - "Living with" is required for a widow(er) to qualify for an accrued 

employee annuity due but unpaid at death, LSDP or RLS on the basis of that 

relationship. 

For eligibility to an LSDP in cases where the employee acquired his 120th railroad 

service month after 1974, or 60-119 months after 1995, the widow must meet the 

“living with” requirement by “living in the same household” as the employee at the 

time of the employee’s death. For further information about eligibility for an 

LSDP, see FOM1 605.20.4. For a definition of “living in the same household”, 

see FOM1 935.10.1. 

Effective 11-1-66, "living with" is not required for a legal widow(er) to qualify for 

an insurance annuity. However, a de facto widow(er) must always be living in 

the same household with the employee at the time of the employee's death to 

qualify for an insurance annuity. 

935.5.3 Point When "Living With" Requirement Must Be Met 

A. Members of same household 

1. Life case - The employee and spouse must be members of the same 

household on the date on which the spouse annuity application is filed. 

2. Survivor case - The employee and widow(er) must be members of the 

same household at the time of the employee's death. 

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B. Contributions toward support 

1. Life case - The employee must be contributing to the spouse's support as 

of the day on which the application for a spouse annuity is filed. However, 

the phrase "as of the day on which the application for a spouse annuity is 

filed" has a broad meaning. 

In this case, it means if the employee made contributions on any regular 

basis within the 12-month retroactivity period, the spouse may be qualified 

if all other requirements are met. This applies even though contributions 

may have been discontinued before the actual filing date of the spouse 

application. 

When a spouse annuity has been denied for not meeting this requirement, 

the spouse may qualify at a later date upon establishing that the employee 

has made regular contributions subsequent to the denial. If proof is 

submitted that the employee made substantial contributions in each of at 

least 6 consecutive calendar months, examiners will consider the 

regularity of the contributions established as of the 6th month. The 

annuity, if otherwise payable, could begin in the following month. 

2. Survivor case - The employee must be contributing to the widow(er)'s 

support at the time of the employee's death. 

C. Court order for support 

1. Life case - The court order for support must be in effect on the date on 

which the application for a spouse annuity is filed. 

2. Survivor case - The court order for support must be in effect at the time of 

the employee's death. 

In either case, the "living with" requirement is met even if the employee does not 

actually make the payments, as long as the court order is in effect. 

935.5.4 Effect of Employee's Place of Death on "Living With" Development 

The fact that the employee died away from the family household is not in itself reason 

for full development of "living with." Many deaths occur away from the family residence. 

When there is an allegation of "living with," but the file indicates that death occurred 

away from the family residence, an explanation showing that the employee died at a 

hospital, at work, on a business trip or vacation is usually sufficient. This is not true, of 

course, when other evidence casts doubt on the "living with" allegation. In such case, 

develop the "living with" allegation fully. 

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935.10 Members Of Same Household 

935.10.1 Defined 

A husband and wife are considered "members of the same household" if they 

customarily live together as husband and wife in the same abode. If they are living at 

the same address, assume they are living together in the absence of evidence to the 

contrary. 

A husband and wife are also considered members of the same household if they have 

shared and again intend to share the same abode, even though: 

A. They live apart temporarily because of circumstances beyond their control (such 

as financial difficulties, ill health, working away from home, service in the Armed 

Forces, etc.); or 

B. They live apart temporarily because one spouse is in a curative, custodial or 

penal institution. 

While temporarily living apart as described above does not defeat "living with," the facts 

must establish that there is an intent to resume living together and that the living apart is 

temporary in nature. 

If the employee and spouse were separated solely for medical reasons, see FOM-I935.15.3. 

935.10.2 Proof Required 

In retirement cases, the Form AA-3 does not request living with information. A deemed 

spouse and the employee must submit signed statements that they are members of the 

same household on the date the spouse files an annuity application. The statements 

may be separate, or a joint statement signed by both individuals. These statements are 

acceptable as proof unless information received in the course of development raises 

doubt. Statements would also be required in the rare case of a spouse eligible before 8-

12-83. 

Prior to 5-1-84, "living with" information was furnished on Forms AA-3 and G-346. 

In most survivor cases, proof that the husband and wife were members of the same 

household consists of a statement made by the applicant on the application form. This 

statement is acceptable to establish that the husband and wife were members of the 

same household, unless information received in the course of development raises 

doubt. However, if the required information is not furnished on the application, or if 

additional information is required, a sworn statement may be submitted. 

Living with information is not requested on Form G-476c in a spouse to widow(er) 

conversion. We do not assume the former spouse annuitant was living with the 

employee, since it is no longer a requirement for the spouse annuity. If the information 

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in file is sufficient to establish a "living with" relationship, BRC will award due but unpaid 

accrued annuities to the widow(er). If the file information is not sufficient, BRC will ask 

you to develop. 

935.15 Temporary Separations 

935.15.1 Effect 

Statements of intent to live together again from the husband and wife (or survivor) will 

prove "living with" unless the evidence shows other than temporary causes for 

separation. However, the intent to resume living together must be present at the time of 

the separation. Consider the reason for the separation and its duration in determining 

whether the intent existed or changed. Whether a separation is temporary is governed 

by the circumstances at the time of the separation, duration of the separation and what 

occurred during the living apart, as well as by the intention of the parties. 

When the temporary separation resulted from domestic difficulties or when a permanent 

separation was the initial intent, handle in accordance with the following sections. 

935.15.2 Separation Due to Domestic Trouble or Incompatibility 

When the separation is due to incompatibility, ill treatment or other domestic difficulty, 

do not assume the separation is temporary without proof that it is. When there is a 

history of separations due to domestic difficulties, the fact that the parties resumed living 

together on prior occasions does not necessarily mean that the last separation is a 

temporary one. The single fact that on previous occasions the parties did resume living 

together does not justify an assumption that they would resume living together on the 

last occasion. However, consider the history of those prior separations and 

resumptions of living together in determining whether or not the last separation was 

temporary. 

A. Effect of reconciliation - The fact that a couple may have considered their 

separation permanent at one time does not prevent a finding of "living together" if 

they later reconcile AND demonstrate their intention to resume cohabitation. 

When BOTH these conditions are met, the separation will be considered ended 

unless one party denies reconciliation. The mere intention to resume 

cohabitation cannot justify a finding that the parties were members of the same 

household on either the application filing date or the date of the reconciliation 

agreement. 

A conditional agreement to resume cohabitation does not become a 

reconciliation agreement until the condition is fulfilled. However, the fulfillment of 

the condition is not an overt act since it relates only to the completion of the 

conditional reconciliation agreement, but not to the execution of such agreement. 

For example, the parties agree to resume living together if the husband goes to 

work. His employment fulfills the condition of the agreement, but the parties 

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must also perform an overt act (e.g., rent an apartment) to complete the 

reconciliation. 

B. Development of reconciliation - Secure evidence of acts showing that the couple 

reconciled with intent to resume living together. Evidence may include receipts 

for rent, furniture, etc., combined with evidence of a resumption of cohabitation. 

Obtain statements from the applicant, the employee (if living) and from one other 

person who knows the facts, as to: 

1. The date and cause of the separation; 

2. The history of other separations; 

3. The action of the parties while separated; 

4. Remarks made by either spouse to the witness (or in his presence) 

showing whether there is an intent to resume living together and the 

conditions under which the remarks are made; 

5. Whether the husband or wife performed an act preparatory to living 

together again, and the basis for the witness' knowledge of this act. 

Evidence showing that the other party is living with someone else in a marital or 

meretricious relationship also rebuts the intention to resume living together. 

935.15.3 Separation Due to Confinement of One Spouse 

A. Examiners will consider a husband and wife members of the same household 

even though one party is confined in a curative, custodial or penal institution if: 

1. They are living together at the time one of them is confined; and 

2. There is a continuing intent to resume living together. 

B. Separation for medical reasons - If the employee and spouse were separated 

solely for medical reasons, consider them to be living in the same household, 

even if the separation was likely to be permanent and there was little or no 

expectation of them living together again. As long as one spouse continued to 

demonstrate strong personal and/or financial concern for the other, assume they 

would have lived together (absent evidence to the contrary) had the medical 

reasons not necessitated a separation. 

C. Party committed to penal institution - A finding of "living together" when one party 

is in a penal institution is not justified if (s)he is committed: 

1. For life; or 

2. For a period of years exceeding life expectancy; or 

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3. Under a sentence of death. 

935.20 Contributions Toward Support 

935.20.1 Defined 

Contributions by the employee to the spouse may be in cash or in kind, but they must 

be regular and substantial. No fixed amount has been set. The test is whether the 

employee recognized an obligation to contribute to the support of the spouse and does 

so contribute. For example, contributions are proved if a husband lets his wife live rent 

free in a house that he owns. However, if they own the house jointly, the employee's 

contribution is equal to one-half of the amount by which the fair rental value exceeds the 

cost of maintenance. ((Maintenance costs include repairs, taxes, mortgage payments 

and interest, etc.) This factor merely establishes regularity; it is still necessary to 

determine whether the contribution is substantial. 

935.20.2 Proof Required 

In the rare case of a spouse eligible before 8-12-83, secure statements from the 

employee and the spouse stating if the employee is contributing to the spouse's support 

and the frequency and the amount of the contributions. The statements should also 

state why the employee and spouse are not living together. 

Prior to 5-1-84, the statements on Forms AA-3 and G-346 were generally acceptable as 

proof of contributions toward support. 

In most survivor cases, the statement by the applicant on the application is sufficient to 

establish contributions toward support. Obtain a sworn statement to establish 

contributions toward support if: 

A. The information required is not furnished by the applicant on the application; or 

B. Reasonable doubt exists about the accuracy of the statements in view of other 

information in file; or 

C. Additional information is needed before making a determination. 

"Living with" information is not requested on Form G-476c in a spouse to widow(er) 

conversion. If information regarding living with and contributions toward support is 

requested, secure a statement from the former spouse giving the date the employee 

and spouse stopped living together, the reason they stopped living together and if the 

employee was making regular contributions to the spouse's support when the employee 

died. 

The above rules apply regardless of whether the applicant lives in this country or in a 

foreign country. 

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If it is alleged that the employee had been contributing but had been forced to stop, 

secure the required statement showing why he was unable to continue contributing. 

935.20.3 Federal Benefit Programs 

Contributions made to a spouse in the form of regular payments from a Federal agency 

may be considered "contributions toward support." 

A. Monthly social security benefits - The receipt of a wife or husband's monthly 

benefit under the SS Act does not always constitute "contributions toward 

support." The 1957 SS Act amendments eliminated "living with" as a 

requirement for entitlement to a spouse's, widow(er)'s and mother's monthly 

benefit for months after 8-1957. Therefore, only the receipt of a monthly spouse 

benefit awarded before 9-1957 can possibly establish "contributions toward 

support" on that basis. 

B. Railroad Retirement Act spouse annuity - An RR Act spouse annuity properly 

paid or payable before 8-12-83 on the employee's compensation record for the 

month before the month the employee died is a contribution toward support and 

establishes "living with" for the purpose of paying the widow(er) survivor benefits. 

A spouse annuity payable 8-12-83 or later is a contribution toward support only if 

the spouse met the living with requirement on the filing date of the spouse 

annuity application. 

C. Veterans Administration payment - VA payments to a wife based on her 

husband's entitlement to veteran's payments are deemed to be contributions by 

him if they are paid or payable before his death. It is immaterial whether he 

agreed to such payments. 

935.20.4 Court Order to Support 

When the employee is ordered by a court to contribute to the applicant's support, secure 

a certified copy of the order. Any such court order must be certified by the court clerk or 

custodian of the records as not having expired or been vacated before the actual date 

on which the spouse application is filed, or, in a survivor case, before the date of the 

employee's death. 

An uncertified photocopy of the order is acceptable, providing that there is an indication 

of court approval (e.g., signature of the judge or court clerk is shown) and the photocopy 

does not show any interlineation or other signs of alteration. 

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