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or consent of the previous beneficiary or beneficiaries, but to be valid must conform to, and be filed in accordance with, the provisions of the preceding paragraphs of this section relating to an original designation of beneficiary. [Board Order 504, 15 F.R. 797, Feb. 14, 1950]

§ 238.4

Election to have residual lumpsum payment awarded.

(a) Conditions of filing. If an employee is survived by a widow, widower, or parent who may upon attaining age 60 be entitled by reason of the employee's death to benefits or further benefits under Part 237 of this chapter, or upon attaining the age of eligibility under title II of the Social Security Act on the basis of combined credits, such widow, widower, or parent may file with the Board an election to have the residual lumpsum payment awarded.

(b) Form and contents. An election to have the residual lump-sum payment awarded must be made on the form prescribed by the Board for that purpose, and must contain an irrevocable election to have the residual lump sum paid in lieu of all the benefits specified in paragraph (a) of this section to which the widow, widower, or parent might otherwise become entitled.

(c) Time of filing. An election to have the residual lump-sum payment awarded must be filed before the widow, widower, or parent attains age 60 if entitled to future benefits under the Railroad Retirement Act, or before the age of eligibility if entitled to future benefits under title II of the Social Security Act instead of under the Railroad Retirement Act.

(d) Deterred from filing election. Where an individual files an election after attaining age 60 or the age of eligibility, whichever is applicable, the election shall be considered to have been timely filed, provided the individual was deterred from filing a timely election. For this purpose, it shall be considered that the individual was deterred from filing a timely election under the following circumstances:

(1) The individual notified the Board in writing prior to attaining age 60 or the age of eligibility, whichever is applicable, of his or her intention or desire to file an election and filed the election within 90 days after he or she was furnished with the prescribed form, or

(2) The individual had not been informed by the Board of the necessity for filing an election on a prescribed form at least 90 days before the end of the period in which a timely election can be filed, but did file the election before the award of monthly benefits and within 90 days after being furnished the prescribed form.

(e) Effect. An election to have the residual lump sum awarded, filed in accordance with the provisions of this section, is legally effective according to its terms and is irrevocable after payment to the entitled person. It does not affect any right which the widow, widower, or parent may otherwise, on the basis of the employee's employment, have to benefits under title II of the Social Security Act not based on combined credits. [Board Order 55-89, 20 F.R. 3724, May 27, 1955, as amended by Board Order 62-47, 27 F.R. 4879, May 24, 1962; Board Order 64-27, 29 F.R. 3229, Mar. 11, 1964]

§ 238.5

Application for residual lumpsum payment.

No payment shall be made under this part to any person unless application therefor, in such manner and form as the Board prescribes, shall have been filed by or on behalf of such person (whether or not legally competent): Provided, however, That no further application shall be required if an application for another benefit under this chapter, by reason of the death of the same employee, shall already have been filed by or on behalf of such person. [Board Order 50-4, 15 F.R. 798, Feb. 14, 1950] § 238.6 Meaning of "combined credits."

The term "combined credits" is used in this part to describe the basis for determining benefits under title II of the Social Security Act in those cases in which, by virtue of the provisions of section 5 (k) of the Railroad Retirement Act, service creditable under the Railroad Retirement Act is not excluded from "employment" under the Social Security Act.

[Board Order 62-47, F.R. 4879, May 24, 1962] § 238.7 Act of March 7, 1942.

If the deceased employee is a person to whom section 2 of the act of March 7, 1942 (56 Stat. 143, 144) is applicable, he is, for the purposes of this part, deemed to have died on the date determined pursuant to that act to be the date or presumptive date of his death,

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(a) Except when the Board, on the basis of information in its records, is satisfied that the date of birth stated in the application is substantially correct, an applicant for an employee annuity shall file supporting evidence showing the date of his birth if his age is a condition of entitlement or is otherwise relevant to payment of benefits. evidence shall also be required by the Board from an applicant for a spouse's annuity or from an applicant for an insurance annuity or from any other individual if such applicant's or such other individual's age is a condition of entitlement or is otherwise relevant to payment of benefits.

(b) In determining the weight to be given to evidence offered to prove age, consideration shall be given to its general probative value and to its position in the following enumeration:

(1) Civil record of birth;

(2) Church record of birth or baptism; (3) Notification of registration of birth;

(4) Hospital birth record or certificate;

(5) Physician's

record;

or midwife's birth

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(14) Labor union or fraternal record; (15) Employer's record;

(16) Marriage record;

(17) Census age record; or

(18) Other evidence of probative value.

In lieu of the original of any record, except a Bible or other family record, there may be submitted a copy of such record or a statement as to the date of birth shown by such record, duly certifiled by the custodian of such record or by an individual designated by the Board. If the proof submitted is of recent origin or is not convincing, additional proof may be required.

If proof is not obtainable, the reason therefor should be stated and the applicant may submit the sworn statements of two other persons having knowledge of the age in question.

A date of birth may be fixed by the Board where proof to establish age or birth date cannot be obtained.

[Board Order 55-89, 20 F. R. 3724, May 27, 1955, as amended by Board Order 60-58, 25 F.R. 3819, Apr. 30, 1960]

§ 239.2 Proof of death.

An applicant for annuities due but unpaid at the death of an individual or for any benefit payable upon the death of an individual shall file proof of such individual's death and of the time and place of such death unless such proof has already been received by the Board. Such proof may also be required by the Board in the case of any other individual when such other individual's death is relevant to the determination of an applicant's entitlement. Such proof shall be of the following character:

(a) A certified copy of the public record of death, coroner's report of death, or verdict of the coroner's jury of the State or community where death occurred, a certificate by the custodian of the public record of death, or a certificate or statement of death issued by a local registrar or public health official; or

(b) A certified copy of an official report or finding of death made by any agency or department of the United States which is authorized or requested to make such report or finding in the administration of any law of the United States: Provided, however, That a finding of presumptive death made pursuant to section 5 of Public Law 490, 77th Congress, shall be accepted only as proof of the fact of death and not of the date of death; or

(c) A photocopy of any of the documents described in paragraph (a) or (b) of this section; or

(d) A signed statement of the funeral director; or

(e) A signed statement of the attending physician, or the superintendent of the institution where the death occurred, on the official stationery of such physician, or superintendent: Provided, however, That none of the proofs described in paragraphs (a), (b), and (c) of this section is obtainable and the Board is furnished with a satisfactory reason therefor.

If none of the proofs described in paragraphs (a), (b), (c), and (d) of this section is obtainable, the reason therefor should be stated and there may be submitted:

(f) The sworn statements of two or more persons, having knowledge of the death, setting forth the facts and circumstances as to the date, time, place and cause of death; or

(g) Other evidence of probative value. If death occurs outside the United States there must be furnished a report of the death by a United States consul, or other agent of the State Department, bearing the signature and official seal of such consul or agent, or a certified copy of the public record of death authenticated by the United States consul or other agent of the State Department, or other evidence of probative value.

[Board Order 47-141, 12 F.R. 2908, May 1, 1947, as amended by Board Order 55-89, 20 F.R. 3724, May 27, 1955; Board Order 63-9, 28 F.R. 865, Jan. 30, 1963; Board Order 63191, 28 F.R. 11252, Nov. 19, 1963; Board Order 63-205, 28 F.R. 13838, Dec. 19, 1963]

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(2) A copy of the church record of marriage, duly certified by the custodian of such record; or

(3) The original certificate of marriage.

If none of the proofs described in subparagraphs (1), (2), and (3) of this paragraph is obtainable, the reason therefor should be stated and the applicant may submit:

(4) The sworn statement of the clergyman or official who performed the marriage ceremony; or

(5) Other evidence of probative value. (b) Proof as to a common-law marriage shall be such as to disclose the facts upon which the informant bases his belief as to the existence of such marriage, such as the maintenance of a common place of abode in which the alleged spouses lived together, a present agreement of marriage, and any representations made by the parties as to their marital status. Such proof shall be as follows:

(1) If the husband and wife are living, such proof shall consist of signed statements of the husband and wife and two of their blood relatives. The statement of another individual may be substituted for the statement of each such relative which is not obtainable.

(2) If either the husband or wife is deceased, such proof shall consist of signed statements of the surviving spouse and of two blood relatives of the deceased spouse. The statement of another individual may be substituted for the statement of any such relative, upon written showing that such relative's statement is not reasonably obtainable.

(3) If both the husband and wife are deceased, such proof shall consist of signed statements of one blood relative of each deceased spouse. The statement of another individual may be substituted for the statement of any such relative, upon written showing that such relative's statement is not reasonably obtainable.

The corroborative statements by relatives or other individuals described in subparagraphs (1) and (2) of this paragraph may in the discretion of the Board be omitted where the parties entered into a formal marriage ceremony which was void because of a legal impediment then existing to the marriage, and where the impediment was removed and thereafter they continued to live together as man and wife until the application was filed or until the death of one of them, if under applicable State law a valid commonlaw marriage could come into existence

as a result of continued cohabitation as man and wife or a subsequent agreement of marriage, or both.

If the information described in subparagraph (1), (2) or (3) of this paragraph is not furnished on a form provided by the Board, it shall be submitted in the form of a sworn statement. [Board Order 47-141, 12 F.R. 2908, May 1, 1947, as amended by Board Order 55-89, 20 F.R. 3724, May 27, 1955]

§ 239.4 Proof of termination of prior marriage.

Where the validity of an alleged marriage depends upon the termination of a former marriage the applicant shall, when so requested by the Board submit:

(a) A certified copy of the decree dissolving such former marriage; or

(b) Proof of the death of a party to such marriage as described in § 239.2 (and in the order of priority therein described); or

(c) Other evidence of probative value. [Board Order 47-141, 12 F.R. 2908, May 1, 1947]

§ 239.5 Proof of relationship.

(a) An applicant for any benefit as the child of an individual shall submit proof of relationship as specified in this paragraph.

(1) If the relationship is by blood, one of the forms of documentary evidence described in § 239.1 (b) should be submitted (in the order of priority therein provided), showing the relationship between the parent and child in question: Provided, however, That a birth record which shows the name of the child but does not give the names of the parents and their relationship to the child may be accepted as supporting evidence of relationship if the surname of the child shown thereon is the same as that of the parent at the time of the birth of the child, and if none of the information available or furnished to the Board is inconsistent with the existence of the relationship.

If no documentary type of evidence is obtainable, the reason therefor should be stated and the applicant may submit the sworn statements of two disinterested persons showing the name of the child and the name of the parent in question, and that to their own knowledge such person is the child of such parent, and stating the source of their knowledge.

(2) If the relationship is by legal adoption, a certified copy of the decree or order of adoption shall be submitted. If such a copy cannot be obtained, or can be obtained only by order of a court, the reason should be stated and the applicant may submit proof of probative value establishing: That a final decree or order of adoption was granted by a court of competent jurisdiction; when the decree was granted; and who were named in the decree as the adopting parent or parents and the adopted child. If under the law of the place of adoption no decree or order is required to effect the adoption, there shall be submitted either a certified copy of the public record of adoption required by such law or, if no such record is required, the original document, if available, by which the adoption was effected. If the original document is not available, the reason should be stated and the applicant may submit an authentic copy thereof.

(3) If the relationship is that of stepparent and stepchild and the child is the blood child of a parent to whom such a stepparent is married, one of the forms of documentary evidence described in § 239.1 (b) should be submitted (in the order of priority therein provided), showing the relationship between the child and such blood parent: Provided, however, That a birth record which shows the name of the child but does not give the names of the parents and their relationship to the child may be accepted as supporting evidence of relationship between the child and the child's blood parent to whom the stepparent is married if the surname of the child shown thereon is the same as that of the blood parent at the time of the birth of the child, and if none of the information available or furnished to the Board is inconsistent with the existence of the relationship. If the child is the adopted child of the parent to whom such stepparent is married, proof of adoption in accordance with subparagraph (2) of this paragraph shall be submitted. Proof shall be submitted as described in § 239.3 (in the order of priority therein provided) as to the marriage of the child's blood parent (or adopting parent) and such stepparent.

If no documentary proof of relationship of the applicant to the blood parent is available, the reason therefor should be stated and the applicant may submit

the sworn statements of two disinterested persons showing the name of the child and the blood parent and that to their knowledge such person is the child of such parent, and stating the source of their knowledge.

(b) An applicant for any benefit as the parent of a deceased employee shall submit proof of relationship as specified in this paragraph.

(1) If the relationship is by blood, one of the forms of documentary evidence described in § 239.1 (c) should be submitted (in the order of priority therein provided), showing the relationship between the deceased employee and the applicant.

If no documentary type of evidence is obtainable, the reason therefor should be stated and the applicant may submit the sworn statements of two disinterested persons showing the name of the employee and the name of the applicant, and that to their own knowledge such employee was the child of such applicant, and stating the source of their knowledge.

(2) If the relationship is by legal adoption, proof of adoption in accordance with paragraph (a) (2) of this section shall be submitted.

(3) If the applicant is the stepparent of the deceased employee, proof of the marriage of such stepparent with a blood parent or adopting parent of the employee shall be submitted, as described in § 239.3 (in the order of priority therein provided), and there shall also be submitted evidence of the relationship of the employee and such blood parent (or adopting parent) as provided in subparagraphs (1) and (2) of this paragraph.

(c) Any person other than a child or parent of a deceased employee who applies for benefits because of the death of an individual shall submit such proof of relationship to such individual as, in the judgment of the Board, is sufficient to establish the alleged relationship. [Board Order 47-141, 12 FR. 2908, May 1, 1947, as amended by Board Order 55-89, 20 F.R. 3724, May 27, 1955; Board Order 60-58, 25 F.R. 3819, Apr. 30, 1960]

§ 239.6 Proof of "living with".

A widow or widower who applies for an insurance annuity shall file proof that she or he was living with the employee at the time of the employee's death

and a wife or husband who applies for a spouse's annuity shall file proof that she or he was living with the retirement annuitant or pensioner as of the day on which her or his application was filed. The proof shall be of the following character:

(a) A signed statement by the applicant for an insurance annuity or a spouse's annuity that at the time of the employee's death or as of the date on which spouse's application was filed, they were living together at the same place of abode. If they were temporarily living apart, the statement should state the places of residence of each at such time or date, the reason for their separation, the length of time they had been separated, and the expected duration of the separation; or

(b) A signed statement by the applicant for an insurance annuity or a spouse's annuity that the deceased employee or retirement annuitant or pensioner was making regular contributions to her or his support, and describing the amount, time or times, and manner of making such contributions; or

(c) A certified copy of an order or decree of a court of competent jurisdiction directing the employee to contribute to his wife's or her husband's support and a certification by the proper official of the court that such order had not expired or had not been vacated prior to the death of the employee or prior to the date on which spouse's application was filed.

If any information required under paragraph (a) or (b) of this section, as the case may be, is not furnished in the application, it shall be submitted in the form of a sworn statement.

[Board Order 55-89, 20 F. R. 3725, May 27, 1955]

§ 239.7 Proof of having the care of a child.

An applicant for a spouse's annuity who is under age 65 and an applicant for a widow's current insurance annuity shall file a signed statement as to whether she has in her care a child of the retirement annuitant or pensioner or of her deceased husband upon the basis of whose insured status she claims benefits. If such information is not furnished in the application, it shall be submitted in the form of a sworn statement. If the child is not living with the spouse or the widow, she shall also submit

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