ary 1, 1947, plus 7 per centum of his or her compensation paid after December 31, 1946, and before January 1, 1959, plus 72 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, widower, 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(f) (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

by the court having probate jurisdiction, or as may be ordered by such court, or as may be authorized by statute.

(2) Surviving relatives. If the employee died after September 1958 and either did not designate a beneficiary or was not survived by a designated beneficiary, payment of the residual lump sum shall be made to the following person, in the order named, whose relationship to the employee will have been determined by the Board and who will not have died before receiving such payment: Widow or widower who was living with the employee at the time of the employee's death; child; grandchild; parent; brother and sister. If there is

more than one person in an equal degree of relationship, each such person shall be paid an equal share of the residual lump

sum.

(3) Estate. If the employee died after September 1958 and a person or persons described in subparagraphs (1) and (2) of this paragraph are not entitled to payment of the residual lump sum, such payment shall be made to the employee's estate. 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 by the court having probate jurisdiction, or as may be ordered by such court, or as may be authorized by statute.

(c) Amount of payment. The residual lump sum is an amount equal to the excess of the employee's percentage of compensation over the benefits deductible.

(d) Meaning of terms. As used in this section:

(1) The term "percentage of compensation" means, with respect to an employee who died after May 1959, the sum of the following:

(i) 4 percent of the employee's creditable compensation (see § 222.3(a) of this chapter) after December 31, 1936, and before January 1, 1947; and

(ii) 7 percent of the employee's creditable compensation after December 31, 1946, and before January 1, 1959; and

(iii) 72 percent of the employee's creditable compensation after December 31, 1958, and before January 1, 1962; and (iv) 8 percent of the employee's creditable compensation after December 31, 1961.

(2) The term "benefits deductible" means, with respect to an employee, the sum of the following:

(i) All benefits paid to the deceased employee and to others deriving from him during his lifetime under the Railroad Retirement Act, and under the Social Security Act to the extent that such benefits are based on his service in the railroad industry; and

(ii) All annuities or parts of annuities waived by the employee and/or others deriving from him under the Railroad Retirement Act; and

(iii) All benefits paid to others on account of his death under the Railroad Retirement Act, whether or not on the basis of combined railroad and social security service, and under the Social Security Act if based on combined railroad and social security service.

[Board Order 50-4, 15 F.R. 797, Feb. 14, 1950, as amended by Board Order 55-89, 20 F.R. 3723, May 27, 1955; Board Order 60-29, 25 F.R. 2054, Mar. 10, 1960; Board Order 62-47, 27 F.R. 4879, May 24, 1962; Board Order 6427, 29 F.R. 3229, Mar. 11, 1964; Board Order 65-134, 30 F.R. 14594, Nov. 24, 1965]

§ 238.3

Designation of beneficiary.

(a) General. An employee may file with the Board a designation of a beneficiary or beneficiaries to receive any residual lump sum payable by reason of his death.

(b) Time of filing. A designation of beneficiary may be filed at any time after June 22, 1948, and on or before the date of the employee's death.

(c) Form. A designation of beneficiary must be made on the form prescribed by the Board for that purpose: Provided, however, That, if a writing, other than the form provided by the Board, signed by the designator is received by the Board within the time specified in paragraph (b) of this section, in which a clear and unambiguous designation of beneficiary is made in substantially the same manner as that provided on such form, and the designator dies without executing such form, the designation shall be given the same effect as if executed on such form.

(d) Witnessing. No effect shall be given to a designation of beneficiary which does not bear the signatures of two witnesses, neither of whom is named as beneficiary, unless the execution of the designation by the designator is proved to the satisfaction of the Board.

(e) Revocation or change. A revocation or change of a designation of beneficiary, or a designation of an additional or new beneficiary or beneficiaries, may 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 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, FR. 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

(a) 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. However, if an employee applicant cannot submit acceptable supporting evidence of his age, the Board may establish the date of birth stated in the application on the basis of information in Board records, if it is satisfied that the date is correct. Such 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 or midwife's birth record;

(6) Bible or other family record;
(7) Naturalization record;

(8) Military record;

(9) Immigration record; (10) Passport;

(11) Census age or World War I draft registration record;

(12) School record;

(13) Vaccination record;

(14) Insurance record;

(15) Labor union or fraternal record; (16) Employer's record; or

(17) 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 certified 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 71-25, 36 F.R. 4980, Mar. 16, 1971]

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]

(a) Proof of a ceremonial marriage shall be of the following character:

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

(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