003304

Office of the General Counsel

Matter of: [xxx]
Date: October 20, 1999
File Number: 003304

OPM Contact: Jo-Ann Chabot

The surviving son of a deceased federal employee (the decedent) filed with her former employing agency a claim for her unpaid compensation. The decedent completed a Standard Form (SF) 1152 (Designation of Beneficiary for Unpaid Compensation of Deceased Civilian Employee) and designated her two sons as her beneficiaries. She provided that, in the event of her demise, her unpaid compensation should be divided equally between them. The decedent and one of her sons died five years later from injuries sustained in an automobile accident. The accident report and the official death certificates for the decedent and her son show that both of them died at the scene of the accident, on the same day, and at the same time of day. Thus, the evidence shows that the decedent and her son died simultaneously, and the claim file does not include any evidence to the contrary. The decedent did not leave a surviving spouse and was survived by her other son. In view of these circumstances, the employing agency asked whether the surviving son is entitled to receive all, or only one-half, of his mother's unpaid compensation. The claim of the surviving son for the entire amount of the decedent's unpaid compensation should be allowed.

Sections 5581-5583 of title 5, United States Code, provide for the settlement of a deceased employee's accounts. Although 5 U.S.C. 5582 specifies an order of precedence in the absence of a beneficiary, it does not provide for distributing the share of a beneficiary who has died simultaneously with an employee. Cases of simultaneous death trigger the application of the appropriate state's Simultaneous Death Act. 43 Comp. Gen. 429 (1963).

The decedent and her deceased son both lived in [state]. Section 53-10-2 (Revised Probate Code of 1998) of the Code of [state] provides:

When the title to property or to the devolution of property depends upon priority of death and there is no sufficient evidence that the individuals have died other than simultaneously, the property of each individual shall be disposed of as if that individual had survived, except as provided otherwise in this chapter.

Under section 53-10-2, the decedent's unpaid compensation would be distributed as if she survived the son who died with her in the automobile accident. According to the SF 1152 that the decedent signed five years before her demise, the share of a beneficiary who predeceases an employee shall be distributed to the surviving beneficiary or beneficiaries. Therefore, the claim of the decedent's surviving son should be allowed and he should receive all of her unpaid compensation.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.