Office of the General Counsel

Date: January 9, 1998
Matter of Gratuity Payment to the Personal Representative of [xxx]
File Number: s970138

OPM Contact: Jo-Ann Chabot

The Director of Human Resources for the Department of [xxx] requested an advance opinion concerning the distribution of a gratuity payment under section 651 of Public Law 104-208 (Omnibus Consolidated Appropriations Act of 1997), 110 Stat. 3009, 3368-69 (September 30, 1996). Section 651 authorizes the head of any federal department or agency to pay a death gratuity to "the personal representative (as that term is defined by applicable law)" of a civilian employee of the department or agency who died from an injury sustained in the line of duty on or after August 2, 1990.

The Secretary of [xxx] authorized payment of the gratuity to the personal representatives of [xxx] employees who lost their lives as a result of the bombing of the Alfred P. Murrah Federal Building on April 19, 1995. [xxx] thereafter sent letters to each prospective personal representative requesting that he or she submit a notarized affidavit certifying that he or she was the personal representative of the deceased employee. On October 21, 1997, the widower of a [xxx] employee whose death resulted from the bombing of the Murrah Building signed an affidavit indicating that he was the personal representative of his deceased wife and had the signed affidavit notarized. [xxx] received his affidavit on October 28, 1997, six days before he died on November 3, 1997. Although his affidavit had been forwarded to the [xxx] processing office for payment, [xxx] had not issued the gratuity payment prior to his death. [xxx] advises that no children resulted from the marriage of the deceased Federal employee, her parents also survived her, and her widower had children from a previous marriage.

The Director of Human Resources wants to know whether [xxx] properly may issue the gratuity payment to any other individual and, if so, whether the gratuity should issue to the deceased employee's parents or the estate of her widower. The Director of Human Resources also wants to know the order of precedence for payment, if anyone is entitled to be paid.

Section 651 of Public Law 104-208 specifies that gratuities will be paid to the deceased employee's personal representative, "as that term is defined by applicable law." Assuming that the deceased employee was a resident of Oklahoma, the laws of that state would apply. Under Oklahoma probate law, "personal representative includes [an] executor, administrator, administrator with will annexed, conservator, guardian and persons who perform substantially the same function under the law governing their status and includes a successor personal representative appointed to succeed a previously appointed personal representative." 58 Okla. Stat. Ann. 11 (West, WESTLAW through end of 1997 1st Reg. Sess.). According to Oklahoma law, the district courts of that state have jurisdiction over probate matters such as granting and revoking letters testamentary and letters of administration, as well as ordering and regulating all distribution of property or estates of deceased persons. 58 Okla. Stat. Ann. 1 (West, WESTLAW through end of 1997 1st Reg. Sess.). Assuming that the deceased employee's widower had been appointed as her personal representative under Oklahoma state law, [xxx] may issue the death gratuity to an individual who can show that, under Oklahoma state law, he or she has been appointed as the successor of the deceased employee's personal representative. [xxx] may desire to contact the deceased employee's parents to notify them of the existence of the death gratuity as well as for information on whether any individual has been appointed to succeed the deceased employee's personal representative and whether an executor or administrator has been appointed for her widower's estate. Before issuing the death gratuity, [xxx] also may desire to notify the executor or administrator of the widower's estate concerning the existence of the death gratuity and to advise that the gratuity will be issued to the successor of the deceased employee's personal representative.