Chapter 2-0200 Establishing Survivorship

1. Purpose and Scope. This chapter contains the procedures for the development and review of survivor claims by the Claims Examiner (CE). The chapter also describes Recommended Decisions in survivor claims, the time of payment, the order of payment for eligible survivors, rejected compensation, and multiple payments.

2. Policy. The CE is responsible for processing survivor claims and ensuring benefits are appropriately paid to eligible survivors under the provisions of 42 U.S.C. 7384s(e) and 7384u(e).

3. Survivor Claims. If an employee eligible for EEOICPA benefits dies before his or her claim is accepted and/or before compensation is paid, one or more of the employee’s survivors may file a claim for compensation under EEOICPA. The order of eligibility in a survivor claim is spouse, child, parent, grandchild, or grandparent. Whenever a survivor files a claim, the CE is responsible for adjudicating the claim(s) filed and processing any compensation which may be payable in the order of eligibility.

4. Filing a Claim for Survivor Benefits. A request for survivor benefits must be in writing. Each claimant, including a minor child, must file a separate EE-2 form. In the case of minor children, a parent or legal guardian may complete the form on their behalf. A legal guardian is defined as having the responsibility for providing the care and management of a minor child and his or her estate. The CE should take the following steps in determining whether the survivor is eligible for compensation.

a. Verify the death of the employee: Verification must include a copy of the employee’s death certificate.

b. The CE must establish that the person named as the employee had a covered medical condition and covered employment under EEOICPA.

c. Establish the relationship of the survivor to the covered employee. Along with a completed EE-2, the claimant must provide documentation establishing his or her relationship to the covered employee. If such documentation is not submitted with the claim, the CE will write to the claimant requesting the necessary evidence.

5. Developing a Survivor Claim.

a. For a surviving spouse, documentation consists of a copy of his or her marriage certificate issued or recognized by a State Authority or an Indian Tribe Authority. To be an eligible surviving spouse, the spouse must have been married to the employee for one year immediately prior to the death of the employee. One year immediately prior to the employee’s death includes the date of marriage through the day prior to the date of death. For example, if an employee married on September 4, 2004 and died on September 3, 2005, the CE does not include September 3, 2005 when calculating the required 365-day term. The CE counts each calendar day from September 4, 2004 up through and including September 2, 2005. The date of death is not included when calculating the term of the marriage.

(1) A marriage license should not be used to validate a marriage. However, the case file must contain sufficient evidence of a legal marriage under the applicable state law.

(2) The surviving partner in a relationship in which the couple lived together in a common law marriage, is considered a spouse of the deceased employee if the situation meets the appropriate state’s criteria for establishing a common law marriage. The CE must request documentation from the claimant providing proof of general reputation of marriage in the community, and continuous cohabitation as man and wife. The CE must document in the case file the requirements used to establish a common law marriage. The evidence obtained by the CE shall be forwarded to the National Office, Branch of Policy and Procedure (for possible submission to the Solicitor’s Office) for a decision on the status under the rules of the state. Examples of evidence which may be used to document a common law marriage may consist of affidavits asserting that they lived together as man and wife in a particular state and presented themselves in the community as man and wife. Other evidence consisting of joint tax returns, joint checking or savings accounts, joint mortgage statements, joint deeds and tax statements are also helpful.

b. For a surviving child, the child must be a recognized natural child, stepchild (see (c) below) or a legally adopted child. Documentation includes of a copy of the child’s birth certificate or an adoption certificate. If a birth or adoption certificate is not available, the CE obtains any evidence possible to establish the parent-child relationship. The CE must exercise his or her discretion in reviewing the documentation provided, and base the adjudication on logical rationale.

(1) In claims where the claimant claims to be a child of the deceased employee and the birth certificate does not list the deceased employee as the father of the claimant, the CE must further develop the claim. Examples of supportive evidence include a paternity test, the death certificate listing the claimant as the child of the deceased employee, affidavits from family members attesting to the paternity, life insurance policies listing the claimant as the child, employment or tax records listing the claimant as the child, and any other document in which the deceased employee recognized the claimant as his/her child. In this instance, the CE must use his/her discretion in reviewing any evidence received to support paternity and the CE must also review all evidence received in its totality.

c. Stepchildren as Survivors. A stepchild is considered a child if he or she lived with the employee in a regular parent-child relationship. Survivor claims involving stepchildren will be adjudicated by the District Offices (DO) unless the issue involves determinations on whether the stepchild was a minor (i.e., the stepchild was between the ages of 18 and 21) at the time of marriage or any other issues that are ambiguous or cannot be determined by the CE.

(1) Determinations on whether a stepchild lived in a regular parent-child relationship will be made once the CE receives specific documentation from the stepchild supporting the relationship.

(2) Documentation supporting a regular parent-child relationship may include school records (e.g., report card signed by the employee), tax returns showing that the covered employee claimed the stepchild as a dependent, photographs taken at family gatherings, newspaper articles, obituaries, insurance policies listing the stepchild as the son or daughter of the covered employee, wills or any other documents that refer to the stepchild and the deceased employee in a familial way.

(3) In cases involving a stepchild who was an adult at the time of marriage, supportive evidence may consist of documentation showing that the stepchild was the primary contact in medical dealings with the deceased employee, the stepchild provided financial support for the deceased employee, and/or had the deceased employee living with him/her, etc. In addition, evidence consisting of medical reports, letters from the physician, receipts showing that the stepchild purchased medical equipment, supplies or medicine for the employee may be helpful. Also, evidence such as copies of insurance policies, wills, photographs (i.e., attendance in the stepchild’s wedding as the father or mother), and newspaper articles (i.e., obituary) may be considered.

(4) In claims involving divorce between the natural parent and the stepparent, the dissolution of the marriage will not terminate the parent-child relationship for eligibility purposes.

(5) There will be no minimum time requirement for a stepchild to have lived in the same household as the covered employee. In order to determine if the stepchild fulfills the requirement to have “lived with” the employee, the CE/FAB representative must

consider the above information in conjunction with the following:

(a) Did the stepchild visit the employee during the holidays?

(b) Did the stepchild take care of the employee for days at a time?

The CE/FAB representative must consider the totality of the evidence when making the determination of whether the stepchild qualifies and should explicitly discuss the findings in the Recommended and/or Final Decisions.

d. Identifying Potential Survivors. When an additional potential survivor is identified on the EE-2 or through another development action, the CE will contact the individual by letter to explain his or her right to file a survivor claim (Exhibit 1). This is to be done unless the CE determines the person is clearly ineligible as a survivor under the Program. The letter does not indicate whether the individual is qualified to receive benefits, as this is a function of the claims process after an EE-2 has been filed. Rather, the letter outlines the general requirements for survivor eligibility. The CE must also explain that filing a claim does not guarantee benefits are payable. Both statutory and regulatory requirements must still be met before compensation can be awarded. The named survivor will be asked to complete and submit an EE-2 within 30 days. A blank Form EE-2 must be attached to the correspondence. If the claim is not submitted within the 30 day time period, the CE can proceed with the adjudication of the case file on the assumption that a claim is not forthcoming.

e. Documentation. In order to ensure compensation is paid to the legitimate survivors of the deceased employee, the CE may require a claimed survivor to provide any documents, affidavits, or records that are necessary to convince the adjudicator of the accuracy of the claim.

6. Developing Other Issues in a Survivor Claim. Once the CE has established all potential survivors, correspondence is sent to all of the claimants requesting documentation to establish a covered medical condition and covered employment.

a. The CE may proceed with development of employment and medical in the case of multiple survivors when there is documentation sufficient to proceed with this development (e.g., EE-3 or supportive medical report is received by one or more of the survivors).

(1) A request for documentation required to support the eligibility of a specific claimant is only to be sent to that claimant.

7. Issuing Recommended Decisions. Regardless of whether a single survivor or multiple survivors have been identified, one Recommended Decision that consolidates all claims under an employee’s Social Security Number must be issued.

a. The recommended decision must include a finding in regard to entitlement to compensation for each survivor. Specifically, the CE references the names of the survivors, whether they are entitled to receive compensation, the amount of compensation payable to eligible survivors, and the basis for the conclusions reached.

b. The recommended decision may not include the addresses of all survivors. Each address must be listed on a separate certificate of service. A cover letter is addressed to each individual survivor along with a copy of the Recommended Decision.

c. Survivor’s Failure to File a Form EE-2. In certain situations, a CE may be able to affirm the existence of an eligible survivor, but be unable to contact the survivor or to have the survivor file an EE-2. If a CE encounters this situation, the CE proceeds with the issuance of a Recommended Decision.

(1) The decision includes a finding of entitlement for the eligible survivor even though he or she has not filed an EE-2 (non-filing survivor).

(2) The compensation for the non-filing eligible survivor may not be distributed among the other survivors who have filed claims, and must be retained in the Fund until he or she comes forward to file a claim. For example, an EE-2 completed by the spouse of a deceased employee identifies an eligible minor child. The spouse produces a birth certificate and evidence of the child's current address. The child is contacted by the CE, but fails to file an EE-2. As there is sufficient evidence to conclude the child is eligible under the Program, the CE proceeds to include the child in the Recommended Decision. However, the child’s share of the compensation remains in the Fund and is not paid out by the DEEOIC. If at a later date, the child contacts the DO indicating his or her intent to pursue a survivor claim, he or she must file a Form EE-2. This will allow the DO to pursue payment of any compensation that may be due.

8. Survivor Issues During the Payment Process.

a. There may be a situation in which a minor child is advised by Final Decision that he or she is eligible for compensation. However, at the time of payment, that child may no longer meet the definition of a minor as noted by state law. In such a situation, the case file is forwarded to the National Office (NO) in accordance with the instructions provided in the PM 2-1400 (Reopening Process).

b. If the employee is alive when the Final Decision is issued, but dies before time of payment, the case file must be forwarded to the NO for a Director’s Order in accordance with the instructions provided in the PM 2-1400 (Reopening Process). Once the final decision is vacated, the claim must be developed for possible survivors. If survivors are identified and eligible, the district office must issue a new recommended decision which encompasses all eligible survivors.

(1) If a paper check is mailed to the employee on the date of death, the payment must be cancelled. The employee must be able to endorse the check. If the payment is made via electronic fund transfer (EFT),the payment should not be cancelled. For more information on cancellation procedures, refer to EEOICPA Bulletin No. 03-16.

c. Survivor’s Death. If one of the survivors on a multiple survivor claim dies before payment is issued, the compensation is reapportioned among the remaining survivors. For example, three survivors of the deceased employee file survivor claims. One of the survivors dies before payment is made. The compensation must be divided between the two remaining living survivors of the deceased employee. Under no circumstances can compensation be paid to the survivors of a deceased survivor.

9. Multiple Payments. In rare situations, a single individual may receive more than $150,000 in compensation in non-RECA cases and more than $50,000 in RECA cases. There are additional payment concerns regarding RECA cases that are addressed in PM 2-0800.

a. Employee. No employee may receive more than one lump sum payment under EEOICPA for any conditions he or she has contracted.

b. Survivor. A survivor may receive one lump sum payment for each employee for whom he or she qualifies as an eligible survivor.

Exhibit 1: Letter to Potential Survivor Notifying of Right to File Claim