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Proposed Rule

Death Benefits

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Federal Retirement Thrift Investment Board.


Proposed rule with request for comments.


The Executive Director of the Federal Retirement Thrift Investment Board (Board) proposes to amend the Thrift Savings Plan's (TSP's) death benefit regulations to permit the TSP to rely on a participant's marital status as stated on a Federal income tax form when determining whether a deceased participant had a common law marriage.


Comments must be received on or before February 13, 2006.


Comments may be sent to Elizabeth S. Woodruff, General Counsel, Federal Retirement Thrift Investment Board, 1250 H Street, NW., Washington, DC 20005. The Agency's Fax number is (202) 942-1676.

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John A. Hahn on (202) 942-1630.

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The Board administers the Thrift Savings Plan, which was established by the Federal Employees Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).

The Executive Director proposes to amend TSP regulations to clarify the proof needed to establish a common law marriage. If a participant dies without having withdrawn his or her TSP account and without having designated a beneficiary, FERSA's order of precedence provides that the account will be paid to the surviving spouse, if any. The TSP looks to the law of the state in which the participant was domiciled at the time of death to determine whether the participant was married. In most states, this means having a valid marriage license. However, some states (and the District of Columbia) still recognize common law marriage. In addition, every state is constitutionally required to recognize as valid a common law marriage that was recognized in another state.

Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years. In order to have a valid common law marriage, a couple generally must do all of the following: Live together for a significant period of time, hold themselves out as a married couple, and intend to be married. When a common law marriage exists, the couple receives the same legal treatment given to formally married couples, including the requirement that they go through a legal divorce to end the marriage.

In order to facilitate the payment of a death benefit to a spouse claiming to be the common law spouse of a TSP participant, the Executive Director intends to amend TSP regulations to permit, but not require, reliance on the participant's marital status as stated on a Federal income tax form. Such a form is submitted to the Internal Revenue Service under penalty of perjury and, therefore, is presumed to be reliable. Alternatively, the putative spouse may obtain a court order or administrative adjudication.

Regulatory Flexibility Act

I certify that these regulations will not have a significant economic impact on a substantial number of small entities. They will affect only employees of the Federal Government.

Paperwork Reduction Act

I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act of 1980.

Unfunded Mandates Reform Act of 1995

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under § 1532 is not required.

Submission to Congress and the General Accounting Office

Pursuant to 5 U.S.C. 810(a)(1)(A), the Board submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States before publication of this rule in the Federal Register. This rule is not a major rule as defined at 5 U.S.C. 814(2).

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List of Subjects in 5 CFR Part 1651

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Gary A. Amelio,

Executive Director Federal Retirement Thrift Investment Board.

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For the reasons set forth in the preamble, the Board amends 5 CFR chapter VI as follows:

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1. The authority citation for part 1651 continues to read as follows:

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Authority: 5 U.S.C. 8424(d), 8432(j), 8433(e), 8435(c)(2), 8474(b)(5), and 8474(c)(1).

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2. Revise § 1651.5 to read as follows:

Spouse of participant.

(a) For purposes of payment under § 1651.2(a)(2), the spouse of the participant is the person to whom the participant was married on the date of death. A person is considered to be married even if the parties are separated, unless a court decree of divorce or annulment has been entered. State law of the participant's domicile will be used to determine whether the participant was married at the time of death.

(b) If a person claims to have a marriage at common law with a deceased participant, the TSP will pay benefits to the putative spouse under § 1651.2(a)(2) in accordance with the marital status shown on the most recent Federal income tax return filed by the participant. Alternatively, the putative spouse may submit a court order or Start Printed Page 1985administrative adjudication determining that the common law marriage is valid.

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[FR Doc. E6-207 Filed 1-11-06; 8:45 am]