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monthly remuneration" as computed under this paragraph is not a multiple of $1, it shall be rounded to the next lower multiple of $1. With respect to an employee who will have been awarded a retirement annuity, the term "compensation" shall, for the purposes of this paragraph, mean the compensation on which such annuity will have been based. (Section 5(1) (9) of the act)

The term "wages" shall mean wages as defined in section 209 of the Social Security Act. In addition, the term shall include (1) "self-employment income" as defined in section 211(b) of the Social Security Act, and (11) wages deemed to have been paid under section 217 (a) or (e) of the Social Security Act on account of military service which is not creditable under section 4 of this act. Wages, as defined in this paragraph, shall be credited for the purposes of this section in the manner and to the extent credited for corresponding purposes of Title II of the Social Security Act. (Section 5(1)(6) of the act)

Board Order 64-105, 29 F.R. 11916, Aug. 20, 1964]

§ 237.202 Basic amount.

(a) Payments fixed with relation to basic amount. The amounts of all insurance annuities and lump sums, other than a residual lump sum, for survivors are fixed with relation to the basic amount of the deceased employee on whose insured status they are conditioned.

(b) Computation of basic amount. The manner in which a deceased employee's basic amount is computed depends upon the nature of his insured status.

In the case of completely insured employees, a distinction is made between those whose completely insured status was based solely on a current connection with the railroad industry and the acquisition of the required numbers of quarters of coverage, and those who were completely insured solely because of having been pensioners or annuitants. The computation is made as follows:

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(ii) Determine the number of calendar years after 1936 in which $200 or more of compensation, wages, or both, were paid to the employee. Multiply the number of such years by 1 percent of the amount computed under subdivision (i) of this subparagraph.

(iii) Add the figure computed under subdivision (i) of this subparagraph and the figure computed under subdivision (ii) of this subparagraph. The sum so obtained is the basic amount. If such sum is less than $16.95, it is increased to $16.95.

(2) Employee completely insured solely because of being a pensioner. (i) If the average monthly earnings on which the pension was computed are ascertainable from the records in the possession of the Board, and if such average monthly earnings do not exceed $75, take 49 percent of such average monthly earnings. If such average monthly earnings exceed $75, take 49 percent of $75 and add thereto 12 percent of the amount by which the average monthly earnings exceed $75 and do not exceed $300. This sum is the basic amount.

(ii) If the average monthly earnings on which the pension was computed are not ascertainable from the records in the possession of the Board, and if the pension was $30.25 or more, the basic amount is $40.33; but if the pension was less than $30.25, the basic amount is four-thirds of the amount of the pension which was payable at death, or $16.13, whichever is greater.

(3) Employee completely insured solely because of being an annuitant. If the employee's monthly compensation does not exceed $75, take 49 percent of such monthly compensation. If the monthly compensation exceeds $75, take 49 percent of $75 and add thereto 12 percent of the amount by which the monthly compensation exceeds $75 and does not exceed $300. This sum is the basic amount. For the purposes of this subparagraph, "monthly compensation" means the monthly compensation which was used in computing the employee's annuity.

(4) Employees completely insured both because of being pensioners or annuitants and also because of current connection and quarters of coverage. If the employee was a pensioner, compare the amount computed under subparagraph (1) of this paragraph with the amount computed under subparagraph (2) of this paragraph; whichever is

greater is the basic amount. If the employee was an annuitant, compare the amount computed under subparagraph (1) of this paragraph with the amount computed under subparagraph (3) of this paragraph; whichever is greater is the basic amount.

[Board Order 59-232, 25 F.R. 480, Jan. 21, 1960; 25 F.R. 1074, Feb. 6, 1960, as amended by Board Order 62-46, 27 F.R. 4878, Apr. 25, 1962; Board Order 64-105, 29 F.R. 11917, Aug. 20, 1964]

§ 237.203 Average monthly remuneration.

decreased

employee's

A average monthly remuneration is computed by dividing his creditable compensation and wages by three times the number of his divisor quarters.

(a) Compensation and wages. (1) Take all compensation paid to the employee, including compensation attributable to military service, after 1936 and before the employee's closing date, excluding any amount in excess of that creditable for a month (see § 222.3 of this chapter).

(2) Where the compensation, including compensation attributable to military service, for any calendar year after 1936 and through 1954 and before the employee's closing date is less than $3,600, wages as defined in section 5(1) (6) of the act in an amount not to exceed the difference between such compensation for the year and $3,600 shall be included. Where such compensation for any calendar year after 1954 and through 1958 and before the employee's closing date is less than $4,200, such wages in an amount not to exceed the difference between such compensation for the year and $4,200 shall be included. Where such compensation for any calendar year after 1958 and before the employee's closing date is less than $4,800, such wages in an amount not to exceed the difference between such compensation for the year and $4,800 shall be included.

(b) Divisor quarters. Take the number of calendar quarters which have elapsed after 1936 or after the year in which the employee attained age 22, whichever is later, and before the employee's closing date. Add to such elapsed quarters the number of quarters of coverage credited the employee before the year in which he attained age 23. Subtract from the number of quarters thus arrived at the number of such quarters which are not wage quarters of coverage and during any part of which a

retirement annuity was payable to the employee. The result is the divisor quarters.

(c) Rounding. An average monthly remuneration that is computed under this section and that is not a multiple of $1, shall be rounded to the next lower multiple of $1.

[Board Order 59-232, 25 F.R. 481, Jan. 21, 1960, as amended by Board Order 62-46, 27 F.R. 4878, Apr. 25, 1962]

§ 237.204 Closing date.

An employee's closing date shall be whichever of the following produces the highest average monthly remuneration as defined in § 237.203:

(a) The first day of the first calendar year in which the employee both had attained age 65 and was completely insured; or

(b) The first day of the calendar year in which the employee died; or

(c) The first day of the calendar year following the year in which the employee died.

[Board Order 59-232, 25 F.R. 482, Jan. 21, 1960 as amended by Board Order 62-46, 27 F.R. 4878, Apr. 25, 1962]

§ 237.205

Reduction because of military service used for other benefits.

When any other gratuitous benefit is payable on a periodic basis under another act of Congress on the basis of military service which has been used in establishing an insured status or in calculating the basic amount of a deceased employee, a survivor insurance annuity, based on the employee's insured status, which is payable for all or part of a month for which such other benefit is payable, shall be reduced by

(a) The proportion that the number of years of service by which such military service increases the total years of service bears to the total years of service (including service before 1937), or

(b) The aggregate amount of such other benefit for that month,

whichever results in the smaller reduction; however, where eligibility for the insurance annuity exists without the crediting of the military service on the basis of which such other benefit is payable, the insurance annuity shall not be reduced below the amount which would be payable without the crediting of the military service.

[Board Order 62-46, 27 FR. 4878, Apr. 25, 1962]

Subpart C-Family Relationships

§ 237.301 Statutory provisions.

For the purposes of this section •

(1) The qualifications for "widow," "widower," "child," and "parent" shall be except for the purposes of subsection (f), those set forth in section 216 (c), (e), and (g), and section 202 (h) (3) of the Social Security Act. respectively; and in addition

(1) A "widow" or "widower" shall have been living with the employee at the time of the employee's death; a widower shall have received at least one-half of his support from his wife employee at the time of her death or he shall have received at least onehalf of his support from his wife employee at the time her retirement annuity or pension began.

(11) A "child" shall have been dependent upon its parent employee at the time of his death; shall not be adopted after such death by other than a stepparent, grandparent, aunt, or uncle; shall be unmarried; and shall be less than eighteen years of age, or shall have a permanent physical or mental condition which is such that he is unable to engage in any regular employment: Provided, That such disability began before the child attains age eighteen; and

(111) A "parent" shall have received, at the time of the death of the employee to whom the relationship of parent is claimed, at least one-half of his support from such employee.

A "widow" or "widower" shall be deemed to have been living with the employee if the conditions set forth in section 216 (h) (2) or (3), whichever is applicable, of the Social Security Act, as in effect prior to 1957, are fulfilled. A "child" shall be deemed to have been dependent upon a parent if the conditions set forth in section 202 (d) (3), (4), or (5) of the Social Security Act are fulfilled (a partially insured mother being deemed currently insured). In determining for purposes of this section and subsection (f) of section 2 whether an applicant is the wife, husband, widow, widower, child, or parent of an employee as claimed, the rules set forth in section 216(h) (1) of the Social Security Act, as in effect prior to 1957, shall be applied. Such satisfactory proof shall be made from time to time, as prescribed by the Board, of the disability provided in clause (11) of this paragraph and of the continuance, in accordance with regulations prescribed by the Board, of such disability. If the individual fails to comply with the requirements prescribed by the Board as to the proof of the continuance of the disability his right to an annuity shall, except for good cause shown to the Board, cease. Where a woman has qualified for an annuity under this section as a widow, and marries another employee who dies within one year after the marriage, she shall not be disqualified for an annuity under this section as the widow of the second employee by reason of not having been married to the employee for one year; (Section 5(1)(1) of the act).

The term "widow" means the surviving wife of an individual, but only if (1) she is the mother of his son or daughter, (2) she legally adopted his son or daughter while she was married to him and while such son or daughter was under the age of eighteen, (3) he legally adopted her son or daughter while she was married to him and while such son or daughter was under the age of eighteen, (4) she was married to him at the time both of them legally adopted a child under the age of eighteen, (5) she was married to him for a period of not less than one year immediately prior to the day on which he died, or (6) in the month prior to the month of her marriage to him (A) she was entitled to, or on application therefor and attainment of age 62 in such prior month would have been entitled to, benefits under subsection (e) or (h) of section 202, or (B) she had attained age eighteen and was entitled to, or on application therefor would have been entitled to, benefits under subsection (d) of such section. (Section 216(c) of the Social Security Act.)

The term "child" means (1) the child or legally adopted child of an individual, and (2) a stepchild who has been such stepchild for not less than one year immediately preceding the day on which application for child's insurance benefits is filed or (if the insured individual is deceased) the day on which such individual died. For purposes. of clause (1), a person shall be deemed, as of the date of death of an individual, tc be the legally adopted child of such individual if such person was at the time of such individual's death living in such individual's household and was legally adopted by such individual's surviving spouse after such individual's death but before the end of two years after the day on which such individual died or the date of enactment of this Act; except that this sentence shall not apply if at the time of such individual's death such person was receiving regular contributions toward his support from someone other than such individual or his spouse, or from any public or private welfare organization which furnishes services or assistance for children. For purposes of clause (2), a person who is not the stepchild of an individual shall be deemed the stepchild of such individual if such individual was not the mother or adopting mother or the father or adopting father of such person and such individual and the mother or adopting mother, or the father or adopting father, as the case may be, of such person went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment described in the last sentence of subsection (h) (1) (B), would have been a valid marriage. (Section 216(e) of the Social Security Act)

The term "widower" • ⚫ means the surviving husband of an individual, but only if (1) he is the father of her son or daughter, (2) he legally adopted her son or daughter

while he was married to her and while such son or daughter was under the age of eighteen, (3) she legally adopted his son or daughter while he was married to her and while such son or daughter was under the age of eighteen, (4) he was married to her at the time both of them legally adopted a child under the age of eighteen, (5) he was married to her for a period of not less than one year immediately prior to the day on which she died, or (6) in the month before the month of his marriage to her (A) he was entitled to, or on application therefor and attainment of age 62 in such prior month would have been entitled to, benefits under subsection (f) or (h) of section 202, or (B) he had attained age eighteen and was entitled to, or on application therefor would have been entitled to, benefits under subsection (d) of such section. (Section 216 (g) of the Social Security Act)

As used in this subsection, the term "parent" means the mother or father of an individual, a stepparent of an individual by a marriage contracted before such individual attained the age of sixteen, or an adopting parent by whom an individual was adopted before he attained the age of sixteen. (Section 202(h)(3), 64 Stat. 487; 42 U.S.C. 402)

In determining whether an applicant is the wife, husband, widow, widower, child, or parent of a fully insured or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law world have the same status relative to taking intestate personal property as a wife, husband, widow, widower, child. or parent shall be deemed such. (Section 216(h)(1) of the Social Security Act, as in effect prior to 1957)

a widow shall be deemed to have been living with her husband at the time of his death if they were both members of the same household on the date of his death, or she was receiving regular contributions from him toward her support on such date, or he had been ordered by any court to contribute to her support. (Section 216(h) (2) of the Social Security Act, as in effect prior to 1957)

a widower shall be deemed to have been living with his wife at the time of her death if they were both members of the same household on the date of her death, or he was receiving regular contributions from her toward his support on such date, or she had been ordered by any court to contribute to his support. (Section 216(h)(3) of the Social Security Act, as in effect prior to 1957)

A child shall be deemed dependent upon his father or adopting father * ✦✦ unless ✦✦✦ such individual was not living with or contributing to the support of such child and

(A) Such child is neither the legitimate nor adopted child of such individual, or (B) Such child had been adopted by some other individual.

For purposes of this paragraph, a child deemed to be a child of a fully or currently insured individual pursuant to section 216 (h)(2)(B) shall, if such individual is the child's father, be deemed to be the legitimate child of such individual. (Section 202 (d)(3) of the Social Security Act)

A child shall be deemed dependent upon his stepfather if * * the child was living with or was receiving at least one-half of his support from such stepfather. (Section 202(d) (4), 64 Stat. 484; 42 U.S.C. 402) A child shall be deemed dependent upon his natural or adopting mother✦✦✦ if such mother or adopting mother was a currently insured individual. A child shall also be deemed dependent upon his natural or adopting mother, or upon his stepmother,

* if * * (A) she was living with or contributing to the support of such child, and (B) either (1) such child was neither living with nor receiving contributions from his father or adopting father, or (11) such child was receiving at least one-half of his support from her. (Section 202(d)(5), 64 Stat. 484; 42 U.S.C. 402)

[Board Order 62-130, 27 FR. 10829, Nov. 7 1962]

§ 237.302 Applicable state law and

status.

(a) Applicable state law defined. “Applicable state law" is the law which the courts of the domicile of the deceased employee, on the basis of whose insured status an individual claims an insurance annuity or lump sum under this part, would apply in deciding who is a widow, widower, child, or parent, when determining the devolution of intestate personal property. The deceased employee's domicile is determined as of the time of his death. If the deceased employee was not domiciled in any state, applicable state law is the law which the courts of the District of Columbia would apply when determining the devolution of such property.

(b) Status under applicable state law. An individual who is not a widow, widower, child, or parent under applicable state law, but who is treated as such under such law for the purpose of determining the devolution of intestate personal property, has the same "status" as a widow, widower, child, or parent. For example, under the law of some

states, an individual who is not a widow because her supposed marriage was void, may nevertheless be treated as a widow under such law, under certain strictly limited conditions. Such an individual has the "status" of a widow.

[Board Order 55-89, 20 FR. 3716, May 27, 1955]

§ 237.303

Definition of "widow".

An individual is the "widow" of an employee, as that term is used in section 5 of the act (except as stated in section 237.504(b) under section 5(f) of the act), only if:

(a) She is the widow of the employee, or has the same status as a widow, under applicable state law, and

(b) One of the following requirements is met:

(1) She is the mother of the employee's son or daughter (an individual is the mother of a deceased employee's son or daughter, within the meaning of this subparagraph, if a son or daughter was born to her and such employee, even though such son or daughter died before an application was filed which involved the determination of whether such individual is a "widow," and even though such son or daughter was born after the death of such employee); or

(2) She was married to the employee (became his wife, or acquired inheritable status as such, under applicable State law) for a period of not less than one year immediately prior to the day on which he died; or

(3) She legally adopted the employee's son or daughter while she was married to him and while such son daughter was under age 18; or

or

(4) The employee legally adopted her son or daughter while she was married to him and while such son or daughter was under age 18; or

(5) She was married to the employee at the time both of them legally adopted a child under age 18; or

(6) In the month before the month of her marriage to the employee, she was entitled, or on application would have been entitled, to a widow's or a parent's (upon reaching the proper age) or a disabled child's insurance benefit under the Social Security Act; or

(7) She was previously entitled, or on application would have been entitled to an annuity under section 237.406 or 237.408 and marries another employee who dies within one year after the marriage; and

(c) She was living with her husband employee at the time of his death. [Board Order 55-89, 20 F.R. 8715, May 27, 1955, as amended by Board Order 60-59, 25 F.R. 3818, Apr. 30, 1960; Board Order 62-130, 27 F.R. 10829, Nov. 7, 1962]

§ 237.304 Definition of "widower".

An individual is the "widower" of an employee, as that term is used in section 5 of the act (except as stated in section 237.504(b) under section 5(f) of the act), only if:

(a) He is the widower of the employee, or has the same status as a widower, under applicable state law, and

(b) One of the following requirements is met:

(1) He is the natural father of the employee's son or daughter (an individual is the father of a deceased employee's son or daughter, within the meaning of this subparagraph, if a son or daughter was born to him and such employee, even though such son or daughter died before an application was filed which involved the determination

of whether such individual is a

"widower"); or

(2) He was married to the employee (became her husband, or acquired inheritable status as such, under applicable State law) for a period of not less than one year immediately prior to the day on which she died; or

(3) He legally adopted the employee's son or daughter while he was married to her and while such son or daughter was under age 18; or

(4) The employee legally adopted his son or daughter while he was married to her and while such son or daughter was under age 18; or

(5) He was married to the employee at the time both of them legally adopted a child under age 18; or

(6) In the month before the month of his marriage to the employee, he was entitled, or on application would have been entitled, to a widower's or a parent's (upon reaching the proper age) or a disabled child's insurance benefit under the the Social Security Act; and

(c) He was living with his wife employee at the time of her death, and

(d) He was receiving at least onehalf of his support from his wife employee at the time of her death or at the time her retirement annuity or pension began.

[Board Order 55-89, 20 F.R. 3716, May 27, 1955, as amended by Board Order 60-59, 25 FR. 3818, Apr. 30, 1960]

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