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ary 1. 1947, plus 7 per centum of his or her compensation paid after December 31, 1946, and before January 1, 1959, plus 712 per centum of his or her compensation paid after December 31, 1958, and before January 1, 1962, plus 8 per centum of his or her compensation paid after December 31, 1961 (exclusive of compensation in excess of $300 for any month before July 1, 1954, and in excess of $350 for any month after June 30, 1954, and before the calender month June 1959) next following the month in which this Act was amended in 1959 (May 1959), and in excess of $400 for any month after the month in which this Act was so amended and before the calendar month (November 1963) next following the month in which this Act was amended in 1963 (October 1963), and in excess of $450 for any month after the month in which this Act was so amended), minus the sum of all benefits paid to him or her, and to others deriving from him or her, during his or her life, or to others by reason of his or her death, under this Act, and pursuant to subsection (k) of this section, under title II of the Social Security Act, as amended: Provided, however, That if the employee is survived by a widow, widower, or parent who may upon attaining age sixty be entitled to further benefits under this section, or pursuant to subsection (k) of this section, upon attaining * • • [the] age ... (of eligibility) be entitled to further benefits under title II of the Social Security Act, as amended, such lump sum shall not be paid unless such widow, wid. ower. or parent makes and files with the Board an irrevocable election, in such form as the Board may prescribe, to have such lump sum paid in lieu of all benefits to which such widow, widower, or parent might otherwise become entitled under this section or, pursuant to subsection (k) of this section, under title II of the Social Security Act, as amended. Such election shall be legally effective according to its terms. Nothing in this section shall operate to deprive a widow, widower, or parent making such election of any insurance benefits under title II of the Social Security Act, as amended, to which such widow, widower, or parent would have been entitled had this section not been enacted. The term “benefits" as used in this paragraph includes all annuities payable under this Act, lump sums payable under paragraph (1) of this subsection, and insurance benefits and lump sum payments under title II of the Social Security Act, as amended, pursuant to subsection (k) of this section, except that the deductions of the benefits which, pursuant to subsection (k) (1) of this section, are paid under title II of the Social Security Act, during the life of the employee to him or to her and to others deriving from him or her, shall be limited to such portions of such benefits as are payable solely by reason of the inclusion of service as an employee in “employment” pursuant

to said subsection (k) (1). (Section 5(1)
(2) of the act)
[Board Order 60-29, 25 F.R. 2054, Mar. 10,
1960, as amended by Board Order 62-47, 27
F.R. 4878, May 24, 1962; Board Order 64-27,
29 F.R. 3228, Mar. 11, 1964)
§ 238.2 Residual lump-sum payments.

(a) Conditions of payment. A lump
sum under section 5(f) (2) of the act
(“residual") is payable to one or more
of the persons described in paragraph
(b) of this section if:

(1) The employee died on or after January 1, 1947; and

(2) No benefits, or no further benefits, will by reason of the employee's death be payable under Part 237 of this chapter, or under title II of the Social Security Act on the basis of combined credits: Provided, however, That if the employee is survived by a widow, widower, or parent who may be entitled to such benefits under the Railroad Retirement Act upon attaining age 60, or under the Social Security Act upon attaining the age of eligibility, the residual lump sum may nevertheless be paid if such widow, widower, or parent files an election in accordance with the provisions of $ 238.4; and

(3) The employee's percentage of compensation exceeds the benefits deductible

(b) Persons entitled to receive payments. The following person or persons are, in the order named, entitled to a residual lump sum under the conditions stated in paragraph (a) of this section:

(1) Designated beneficiary. If the employee designated a beneficiary or beneficiaries in accordance with the provisions of $ 238.3, and such designee or designees survived the employee, payment of the residual lump sum shall be made in accordance with such designation, subject to the following conditions:

(i) If there is more than one designated beneficiary, each shall be paid an equal share of the residual lump sum, unless the percentage to be paid to each beneficiary is specified, in which case payment shall be made in the proportion specified.

(ii) If a designated beneficiary dies before receiving payment of the residual lump sum, such payment shall be made to the estate of the designee. In such case, if payment cannot be made under the provisions of Part 236 of this chapter, it shall be made only to a legal representative of the estate duly appointed

203

by the court having probate jurisdiction, (1) All benefits paid to ine deceased or as may be ordered by such court, or employee and to others deriving from as may be authorized by statute.

him during his lifetime under the Rail(2) Surviving relatives. If the em road Retirement Act, and under the ployee died after September 1958 and Social Security Act to the extent that either did not designate a beneficiary or such benefits are based on his service in was not survived by a designated bene the railroad industry; and ficiary, payment of the residual lump (ii) All annuities or parts of annuisum shall be made to the following per ties waived by the employee and/or son, in the order named, whose relation others deriving from him under the Railship to the employee will have been de road Retirement Act; and termined by the Board and who will not (iii) All benefits paid to others on have died before receiving such pay account of his death under the Railroad ment: Widow or widower who was living Retirement Act, whether or not on the with the employee at the time of the basis of combined railroad and social employee's death; child; grandchild; security service, and under the Social parent; brother and sister. If there is Security Act if based on combined railmore than one person in an equal degree road and social security service. of relationship, each such person shall be [Board Order 50_4, 15 F.R. 797, Feb. 14, 1950, paid an equal share of the residual lump as amended by Board Order 55-89, 20 F.R. sum.

3723, May 27, 1955; Board Order 60-29, 25 (3) Estate. If the employee died

F.R. 2054, Mar. 10, 1960; Board Order 62-47, after September 1958 and a person or

27 F.R. 4879, May 24, 1962; Board Order 64

27, 29 F.R. 3229, Mar. 11, 1964; Board Order persons described in subparagraphs (1)

65–134, 30 F.R. 14594, Nov. 24, 1965] and (2) of this paragraph are not entitled to payment of the residual lump

$ 238.3 Designation of beneficiary. sum, such payment shall be made to the (a) General. An employee may file employee's estate. In such case, if pay with the Board a designation of a benement cannot be made under the pro ficiary or beneficiaries to receive any visions of Part 236 of this chapter, it residual lump sum payable by reason of shall be made only to a legal representa his death. tive of the estate duly appointed by the (b) Time of filing. A designation of court having probate jurisdiction, or as beneficiary may be filed at any time after may be ordered by such court, or as may June 22, 1948, and on or before the date be authorized by statute.

of the employee's death. (c) Amount of payment. The residual (c) Form. A designation of benefi. lump sum is an amount equal to the ciary must be made on the form preexcess of the employee's percentage of scribed by the Board for that purpose: compensation over the benefits de

Provided, however, That, if a writing, ductible.

other than the form provided by the (d) Meaning of terms. As used in this

Board, signed by the designator is resection:

ceived by the Board within the time spec(1) The term “percentage of compen ified in paragraph (b) of this section, sation" means, with respect to an em in which a clear and unambiguous desployee who died after May 1959, the sum ignation of beneficiary is made in subof the following:

stantially the same manner as that (i) 4 percent of the employee's credit

provided on such form, and the desigable compensation (see $ 222.3(a) of this

nator dies without executing such form, chapter) after December 31, 1936, and

the designation shall be given the same before January 1, 1947; and

effect as if executed on such form. (ii) 7 percent of the employee's credit (d) Witnessing. No effect shall be able compensation after December 31, given to a designation of beneficiary 1946, and before January 1, 1959; and which does not bear the signatures of

(iii) 712 percent of the employee's two witnesses, neither of whom is named creditable compensation after December as beneficiary, unless the execution of 31, 1958, and before January 1, 1962; and the designation by the designator is

(iv) 8 percent of the employee's credit proved to the satisfaction of the Board. able compensation after December 31, (e) Revocation or change. A revo1961.

cation or change of a designation of ben. (2) The term "benefits deductible" eficiary, or a designation of an additional means, with respect to an employee, the or new beneficiary or beneficiaries, may sum of the following:

be made, with or without the knowledge

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 50-4, 15 F.R. 797, Feb. 14, 1950] $ 238.4 Election to have residual lump

sum 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) Efect. 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 lump

sum 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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so long as it does not appear that he is (14) Labor union or fraternal record; in fact alive.

(15) Employer's record; (Board Order 50–4, 15 F.R. 798, Feb. 14, 1950]

(16) Marriage record;

(17) Census age record; or PART 239-PROOFS REQUIRED

(18) Other evidence of probative

value. SUPPORT OF CLAIMS FOR BENEFITS

In lieu of the original of any record, Sec.

except a Bible or other family record, 239.1 Proof of age.

there may be submitted a copy of such 239.2 Proof of death.

record or a statement as to the date of 239.3 Proof of marriage. 239.4 Proof of termination of prior mar

birth shown by such record, duly certiriage.

fied by the custodian of such record or 239.5 Proof of relationship.

by an individual designated by the 239.6 Proof of "living with".

Board. If the proof submitted is of re239.7 Proof of having the care of a child. cent origin or is not convincing, addi239.8 Proof of dependency of a child.

tional proof may be required. 239.9 Proof of support. 239.10 Proof of the dependency of a parent.

If proof is not obtainable, the reason 239.11 Proof of the payment of burial ex

therefor should be stated and the applipenses.

cant may submit the sworn statements of

two other persons having knowledge of AUTHORITY: The provisions of this part 239

the age in question. issued under sec. 10, 50 Stat. 314, as amended; 45 U.S.C. 228).

A date of birth may be fixed by the

Board where proof to establish age or $ 239.1 Proof of age.

birth date cannot be obtained. (a) Except when the Board, on the (Board Order 55-89, 20 F. R. 3724, May 27. basis of information in its records, is 1955, as amended by Board Order 60-58, 25 satisfied that the date of birth stated in

F.R. 3819, Apr. 30, 1960) the application is substantially correct, § 239.2 Proof of death. an applicant for an employee annuity

An applicant for annuities due but shall file supporting evidence showing the date of his birth if his age is a con

unpaid at the death of an individual or dition of entitlement or is otherwise

for any benefit payable upon the death

of an individual shall file proof of such relevant to payment of benefits. Such

individual's death and of the time and evidence shall also be required by the

place of such death unless such proof Board from an applicant for a spouse's

has already been received by the Board. annuity or from an applicant for an in

Such proof may also be required by the surance annuity or from any other in

Board in the case of any other individdividual if such applicant's or such other

ual when such other individual's death individual's age is a condition of entitle

is relevant to the determination of an ment or is otherwise relevant to payment

applicant's entitlement. Such proof of benefits.

shall be of the following character: (b) In determining the weight to be given to evidence offered to prove age,

(a) A certified copy of the public consideration shall be given to its gen

record of death, coroner's report of eral probative value and to its position

death, or verdict of the coroner's jury of in the following enumeration:

the State or community where death oc(1) Civil record of birth;

curred, a certificate by the custodian of (2) Church record of birth or baptism;

the public record of death, or a certificate (3) Notification of registration of

or statement of death issued by a local birth;

registrar or public health oficial; or (4) Hospital birth record or certif (b) A certified copy of an official recate;

port or finding of death made by any (5) Physician's or midwife's birth agency or department of the United record;

States which is authorized or requested (6) Bible or other family record;

to make such report or finding in the (7) Naturalization record;

administration of any law of the United (8) Immigration record;

States: Provided, however, That a find(9) Military record;

ing of presumptive death made pursuant (

to section 5 of Public Law 490, 77th Con(11) School record;

gress, shall be accepted only as proof (12) Vaccination record;

of the fact of death and not of the date (13) Insurance record;

of death; or

(c) A photocopy of any of the docu- (2) A copy of the church record of ments described in paragraph (a) or (b) marriage, duly certified by the custodian of this section; or

of such record; or (d) A signed statement of the funeral

(3) The original certificate of mardirector; or

riage. (e) A signed statement of the attend If none of the proofs described in subing physician, or the superintendent of

paragraphs (1), (2), and (3) of this parthe institution where the death occurred,

agraph is obtainable, the reason therefor on the oficial stationery of such physi

should be stated and the applicant may cian, or superintendent: Provided, how

submit: ever, That none of the proofs described

(4) The sworn statement of the clerin paragraphs (a), (b), and (c) of this

gyman or official who performed the section is obtainable and the Board is

marriage ceremony; or furnished with a satisfactory reason

(5) Other evidence of probative value. therefor.

(b) Proof as to a common-law marIf none of the proofs described in para

riage shall be such as to disclose the facts

upon which the informant bases his belief graphs (a), (b), (c), and (d) of this

as to the existence of such marriage, such section is obtainable, the reason therefor

as the maintenance of a common place should be stated and there may be

of abode in which the alleged spouses submitted:

lived together, a present agreement of (f) The sworn statements of two or

marriage, and any representations made more persons, having knowledge of the

by the parties as to their marital status. death, setting forth the facts and cir

Such proof shall be as follows: cumstances as to the date, time, place

(1) If the husband and wife are living, and cause of death; or

such proof shall consist of signed state(g) Other evidence of probative value.

ments of the husband and wife and two If death occurs outside the United

of their blood relatives. The statement States there must be furnished a report

of another individual may be substituted of the death by a United States consul,

for the statement of each such relative or other agent of the State Department,

which is not obtainable. bearing the signature and official seal of

(2) If either the husband or wife is such consul or agent, or a certified copy

deceased, such proof shall consist of of the public record of death authenti

signed statements of the surviving spouse cated by the United States consul or

and of two blood relatives of the deceased other agent of the State Department, or

spouse. The statement of another indiother evidence of probative value.

vidual may be substituted for the state(Board Order 47–141, 12 F.R. 2908, May 1,

ment of any such relative, upon written 1947, as amended by Board Order 55-89,

showing that such relative's statement is 20 F.R. 3724, May 27, 1955; Board Order 63-9,

not reasonably obtainable. 28 F.R. 865, Jan. 30, 1963; Board Order 63191, 28 F.R. 11252, Nov. 19, 1963; Board Order

(3) If both the husband and wife are 63-205, 28 F.R. 13838, Dec. 19, 1963]

deceased, such proof shall consist of

signed statements of one blood relative § 239.3 Proof of marriage.

of each deceased spouse. The statement An applicant for any benefit as the of another individual may be substituted spouse of a retirement annuitant or pen for the statement of any such relative, sioner or as the widow or widower of a

upon written showing that such relative's deceased employee, annuitant, or pen

statement is not reasonably obtainable. sioner shall file proof as to marriage to

The corroborative statements by relasuch individual, and as to the time and tives or other individuals described in place of marriage. Proof of marriage subparagraphs (1) and (2) of this paramay also be required by the Board as to

graph may in the discretion of the Board the marriage of any other individual

be omitted where the parties entered into when such a marriage is relevant to the

a formal marriage ceremony which was

void because of a legal impediment then determination of an applicant's entitle

existing to the marriage, and where the ment.

impediment was removed and thereafter (a) Proof of a ceremonial marriage

they continued to live together as man shall be of the following character:

and wife until the application was filed (1) A copy of the public record of or until the death of one of them, if un

or until the death of one of th marriage, duly certified by the custodian der applicable State law a valid commonof such record; or

law marriage could come into existence

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