Family Relationships

RAILROAD RETIREMENT BOARD

20 CFR Part 222

RIN 3220-AB40

Family Relationships

AGENCY: Railroad Retirement Board.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Railroad Retirement Board (Board) proposes to amend 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 proposes to clarify 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.

DATES: Comments must be received on or before February 7, 2000.

ADDRESSES: Comments should be addressed to the Secretary to the Board,

Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois

60611-2092.

FOR FURTHER INFORMATION CONTACT: Thomas W. Sadler, Senior Attorney,

(312) 751-4513, 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

[[Page 68648]]

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 proposes to revise Sec. 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. Proposed 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,

proposed 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 proposed

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.

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 proposes to amend 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.

2. Section 222.31 is revised to read 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) 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) 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) 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) 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

Islands, Guam, American Samoa, or the Northern Mariana Islands, the

laws of the District of Columbia will apply.

[[Page 68649]]

(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: November 29, 1999.

By Authority of the Board.

Beatrice Ezerski,

Secretary to the Board.

[FR Doc. 99-31791 Filed 12-7-99; 8:45 am]

BILLING CODE 7905-01-P