B-137754, OCTOBER 18, 1967, 47 COMP. GEN. 209

B-137754, OCTOBER 18, 1967, 47 COMP. GEN. 209

GRATUITIES - SIX MONTHS' DEATH - CHILDREN - PAYMENT TO NATURAL GUARDIAN, ETC. THE $1,000 LIMITATION PRESCRIBED IN PARAGRAPH 40504 (B) (5), DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, ON THE PAYMENT OF THE 6 MONTHS' DEATH GRATUITY TO A PARENT AS THE NATURAL GUARDIAN OF A MINOR CHILD MAY BE EXCEEDED TO CONFORM TO THE AMOUNTS PRESCRIBED BY THE STATUTES OF THE STATES IN WHICH CLAIMANTS RESIDE WHERE MEANS ARE PROVIDED FOR THE GOVERNMENT TO OBTAIN A GOOD ACQUITTANCE. THEREFORE, THE DEATH GRATUITY DUE THE MINOR SON OF A DECEASED MEMBER OF THE UNIFORMED SERVICES MAY BE PAID TO THE MOTHER SUPPORTING HER CLAIM IN BEHALF OF THE CHILD WITH AN AFFIDAVIT SUBSTANTIALLY COMPLYING WITH THE REQUIREMENTS OF THE CALIFORNIA CODE, UPON A DETERMINATION THE SHOWING OF COMPLIANCE WITH THE $2,000 LIMITATION IMPOSED ON THE PAYMENT OF MONEY AND PERSONAL PROPERTY INCLUDES THE DEATH GRATUITY, AND THAT ANY INSURANCE PROCEEDS DUE, PLUS OTHER AMOUNTS, WILL NOT CAUSE EITHER THE $2,000 LIMITATION OR THE $2,500 RESTRICTION ON THE TOTAL ESTATE TO BE EXCEEDED. CLAIMS - EVIDENCE TO SUPPORT - DECEDENTS' ESTATES - PAYMENTS DUE MINOR CHILDREN THE NATURAL GUARDIAN OF THE MINOR CHILD OF A DECEASED MEMBER OF THE UNIFORMED SERVICES IN DOCUMENTING A CLAIM FOR THE 6 MONTHS' DEATH GRATUITY IN EXCESS OF THE $1,000 PRESCRIBED BY PARAGRAPH 40504 (B) (5), DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, SHOULD CITE THE STATE STATUTE INVOLVED, AND THE FACTS BRINGING PAYMENT TO THE GUARDIAN WITHIN THE PURVIEW OF THE STATE STATUTE IN WHICH THE PERSONS CONCERNED RESIDE SHOULD BE FURNISHED IN AFFIDAVIT FORM, AND CARE SHOULD BE EXERCISED TO DETERMINE THAT THE PARENT UNDERSTANDS THE REQUIREENTS OF THE LAW PERMITTING PAYMENT TO PARENTS OF SMALL AMOUNTS DUE MINORS, IF THE MATTER IS FREE FROM DOUBT, TO AVOID THE EXPENSE OF OBTAINING LEGAL GUARDIANSHIP. RELEASES - PROPER RELEASE OR ACQUITTANCE - DECEDENTS' ESTATES AS THE 6 MONTHS' DEATH GRATUITY PAYMENT IS NOT CONSIDERED AN ASSET OF THE ESTATE OF A DECEASED MEMBER OF THE UNIFORMED SERVICES BUT IN THE NATURE OF SURVIVOR INSURANCE THAT IS PAYABLE IN ACCORDANCE WITH FEDERAL LAW TO PERSONS LISTED IN 10 U.S.C. 1477, THE PRINCIPAL CONCERN OF THE GOVERNMENT IS TO OBTAIN A GOOD ACQUITTANCE WHEN PAYMENT TO A MINOR IS INVOLVED, THEREFORE, WHEN A STATE STATUTE PROVIDES FOR A GOOD ACQUITTANCE, PAYMENT OF THE DEATH GRATUITY DUE THE MINOR CHILD OF A DECEASED MEMBER OF THE UNIFORMED SERVICES MAY BE MADE TO THE NATURAL GUARDIAN OF THE CHILD UPON COMPLIANCE WITH THE REQUIREMENTS OF THE LAW OF THE STATE IN WHICH THE CLAIMANTS RESIDE, THEREBY AVOIDING THE COST OF OBTAINING LEGAL GUARDIANSHIP IN THE SETTLING OF SMALL ESTATES.

TO MAJOR I. L. RAY, DEPARTMENT OF THE NAVY, OCTOBER 18, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 22, 1967, YOUR FILE ILR-SKH 5001, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER MRS. JANIS SHARP, CUSTODIAN AND NATURAL GUARDIAN OF BENNY M. BARELA, MINOR SON OF THE LATE LANCE CORPORAL IGNACIO BARELA, 2222704, U.S. MARINE CORPS, MAY BE PAID A DEATH GRATUITY IN THE AMOUNT OF $1,174.80 UNDER THE CIRCUMSTANCES CITED THEREIN. YOUR REQUEST WAS FORWARDED TO THIS OFFICE WITH LETTER DATED SEPTEMBER 11, 1967, WRITTEN BY DIRECTION OF THE COMMANDANT OF THE MARINE CORPS AND HAS BEEN ASSIGNED CONTROL NUMBER D0-MC- 960 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT LANCE CORPORAL BARELA, WHO DIED JUNE 2, 1967, AS A RESULT OF WOUNDS RECEIVED IN COMBAT, WAS DIVORCED FROM JANIS ON SEPTEMBER 23, 1965, AND THAT SHE WAS AWARDED CUSTODY OF THEIR SON, BENNY M. BARELA, PRESENT AGE FOUR. YOU FORWARDED WITH YOUR LETTER DD FORM 397, CLAIM CERTIFICATION AND VOUCHER FOR DEATH GRATUITY, IN THE AMOUNT OF $1,174.80, PAYABLE IN THE CASE OF THE DECEASED MEMBER, SIGNED BY JANIS SHARP REQUESTING PAYMENT TO HER AS CUSTODIAN OF BENNY M. BARELA, MINOR SON OF THE DECEDENT. THE APPLICATION IS SUPPORTED BY HER AFFIDAVIT UNDER SECTIONS 1430 AND 1432 OF THE CALIFORNIA PROBATE CODE IN WHICH SHE SAYS THAT SHE IS THE MOTHER OF BENNY BARELA; THAT SHE IS ENTITLED TO HIS CUSTODY; THAT HE HAS NO GUARDIAN OF HIS ESTATE, WHICH IS NOT IN EXCESS OF $2,500; THAT HE HAS DUE FROM HIS FATHER'S ESTATE MONEY OR PERSONAL PROPERTY NOT EXCEEDING $2,000; THAT SHE WILL ACCOUNT TO THE MINOR FOR ALL PROPERTY SHE MAY RECEIVE WHEN HE REACHES HIS MAJORITY; AND THAT SHE AGREES TO RECEIPT FOR THE PROPERTY DUE THE MINOR. WITH ONE EXCEPTION, THE AFFIDAVIT SUBSTANTIALLY COMPLIES WITH THE PROVISIONS OF THE CALIFORNIA LAW PERMITTING PAYMENT TO A PARENT OF SUMS UP TO $2,000 WITHOUT THE NECESSITY OF A GUARDIAN OF THE MINOR'S ESTATE BEING APPOINTED.

PARAGRAPH 40504 (B) (5), DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, EFFECTIVE JANUARY 1, 1967, PROVIDES:

"IF DEATH GRATUITY DOES NOT EXCEED $1,000, IT MAY BE PAID TO A PARENT AS NATURAL CUSTODIAN IF THE PARENT HAS PHYSICAL CUSTODY OF THE MINOR CHILD OR CHILDREN. SUBSTANTIATE THIS PAYMENT WITH A NOTARIZED STATEMENT EXECUTED BY THE NATURAL GUARDIAN CONTAINING THE RELATIONSHIP OF THE MINOR TO THE NATURAL GUARDIAN; THE FACT THAT A LEGAL GUARDIAN HAS NOT BEEN APPOINTED; THAT THE MINOR CHILD IS IN THE ACTUAL CUSTODY OF THE NATURAL GUARDIAN; THE CHILD HAS NOT BEEN LEGALLY ADOPTED BY OTHER PERSON/S) BEFORE THE MEMBER'S DEATH; AND THAT ANY AMOUNTS PAID WILL BE HELD FOR, OR APPLIED TO, THE USE AND BENEFIT OF THE MINOR.' THIS PROVISION APPARENTLY IS BASED ON OUR DECISION OF DECEMBER 16, 1958, B-137754, 38 COMP. GEN. 436, IN WHICH WE HELD THAT REGULATIONS WHICH WOULD PERMIT SIX MONTHS' DEATH GRATUITY PAYMENTS DUE MINORS TO BE MADE TO THE FATHER OR THE MOTHER AS NATURAL GUARDIAN WOULD NOT BE OBJECTIONABLE PROVIDED THAT PAYMENTS DO NOT EXCEED $1,000.

IN VIEW OF THE DISPARITY BETWEEN THE LIMITATION OF THE AMOUNT MENTIONED IN THE 1958 DECISION AND THE $2,000 AMOUNT PRESCRIBED IN THE CALIFORNIA PROBATE CODE, AS AMENDED IN 1965, AND THE ,APPARENT UNWARRANTED EXPENSE INVOLVED IN THE APPOINTMENT OF A GUARDIAN," YOU ASK WHETHER AN OBJECTION WOULD BE INTERPOSED TO THE PAYMENT OF THE VOUCHER, IF OTHERWISE CORRECT. IN THE EVENT THAT PAYMENT IS ALLOWED,YOU ALSO ASK FOR GUIDANCE AS TO WHETHER AND UNDER WHAT CIRCUMSTANCES FUTURE CASES OF SIMILAR NATURE MAY BE PAID, IF OTHERWISE IN CONSONANCE WITH THE STATUTES OF THE STATE IN WHICH THE CLAIMANT RESIDES, TOGETHER WITH ADVICE RELATIVE TO THE APPROPRIATE DOCUMENTATION THAT WOULD BE ACCEPTABLE TO SUPPORT THESE PAYMENTS.

THE LETTER DATED SEPTEMBER 11, 1967, REQUESTED A DECISION AS TO WHETHER PARAGRAPH 40504 (B) (5), DODPM, MAY BE REVISED TO PERMIT PAYMENTS TO THE PARENT AS NATURAL GUARDIAN WITHOUT APPOINTMENT OF A LEGAL GUARDIAN TO THE EXTENT AUTHORIZED BY THE STATUTES OF THE STATE IN WHICH THE PARENT AND CHILD RESIDE.

OUR DECISION OF DECEMBER 16, 1958, WAS REACHED AFTER CAREFUL CONSIDERATION OF THE GENERAL RULE OF LAW RELATING TO GUARDIANSHIP BY NATURE AND A REVIEW OF STATE STATUTES WHICH GENERALLY PROVIDE FOR THE APPOINTMENT BY THE PROBATE COURT, WHEN FOUND NECESSARY, OF A GUARDIAN OF THE PERSON OR OF THE ESTATE OF THE MINOR, OR OF BOTH, WHO WILL HAVE THE CARE AND MANAGEMENT OF THE PERSON OR OF THE ESTATE OF SUCH MINOR, OR BOTH. OUR DECISION TO ALLOW PAYMENT OF DEATH GRATUITY DUE MINORS-- NOT IN EXCESS OF $1,000--- TO A PARENT AS A NATURAL GUARDIAN WAS BASED ON THE LONGSTANDING PROCEDURE FOLLOWED BY OUR CLAIMS DIVISION OF PAYING PARENTS RELATIVELY SMALL AMOUNTS DUE MINORS, IF THE MATTER IS OTHERWISE FREE FROM DOUBT, BASED ON THE PREMISE THAT THE EXPENSE OF OBTAINING LEGAL GUARDIANSHIP WOULD GENERALLY BE DISPROPORTIONATE TO THE AMOUNT DUE FROM THE UNITED STATES. THAT RULE IS ONE OF CONVENIENCE AND AVOIDS THE NECESSITY FOR THE CONSIDERATION OF THE LAWS OF THE DOMICILE OF THE CLAIMANTS, MANY OF WHICH DO NOT RECOGNIZE A PARENT AS A NATURAL GUARDIAN OR PROVIDE AN ACQUITTANCE UPON THE PAYMENT TO A PARENT OF AN AMOUNT DUE A MINOR.

THE DEATH GRATUITY PAYMENT IS NOT AN ASSET OF THE ESTATE OF THE DECEASED MEMBER, BEING MORE IN THE NATURE OF SURVIVOR INSURANCE. IT IS PAYABLE IN ACCORDANCE WITH FEDERAL LAW TO THE PERSONS LISTED IN 10 U.S.C. 1477 AND IF A MINOR IS INVOLVED, THE PRINCIPAL CONCERN OF THE GOVERNMENT IS THAT A GOOD ACQUITTANCE BE OBTAINED WHEN PAYMENT IS MADE.

THE PROVISIONS OF SECTION 1430 OF THE CALIFORNIA PROBATE CODE CURRENTLY IN EFFECT ARE AS FOLLOWS:

"IF A MINOR HAS NO GUARDIAN OF HIS ESTATE, MONEY BELONGING TO THE MINOR NOT EXCEEDING THE SUM OF TWO THOUSAND DOLLARS ($2,000) OR OTHER PROPERTY BELONGING TO THE MINOR NOT EXCEEDING TWO THOUSAND DOLLARS ($2,000) IN VALUE MAY BE PAID OR DELIVERED TO A PARENT OF THE MINOR ENTITLED TO THE CUSTODY OF THE MINOR TO HOLD FOR THE MINOR UNTIL HIS MAJORITY, UPON WRITTEN ASSURANCE VERIFIED BY THE OATH OF SUCH PARENT THAT THE TOTAL ESTATE OF THE MINOR DOES NOT EXCEED TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500) IN VALUE; AND THE WRITTEN RECEIPT OF SUCH PARENT SHALL BE AN ACQUITTANCE OF THE PERSON MAKING SUCH PAYMENT OF MONEY OR DELIVERY OF OTHER PROPERTY.'

ALTHOUGH OUR DECISION OF DECEMBER 16, 1958, RECOGNIZED THE COST OF GUARDIANSHIP PROCEEDINGS AS A FACTOR FOR CONSIDERATION IN CASES INVOLVING SMALL ESTATES OF MINORS NOT IN EXCESS OF $1,000, THE SIZE OF THE ESTATE IS OF NO RELEVANCE IF THE GOVERNMENT CAN OBTAIN A GOOD ACQUITTANCE BY PAYMENT TO A NATURAL GUARDIAN. WHERE, AS HERE, THE LAW OF THE STATE WHERE THE PERSONS CONCERNED RESIDE PROVIDES A MEANS OF OBTAINING A GOOD ACQUITTANCE BY PAYMENT TO THE PARENT HAVING CUSTODY OF THE MINOR, WE SEE NO REASON WHY PAYMENT OF THE DEATH GRATUITY SHOULD NOT BE MADE IN AN AMOUNT IN EXCESS OF $1,000 IF THE OTHER REQUIREMENTS OF THE STATUTE ARE MET. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY, AND THE ABOVE-QUOTED REGULATIONS MAY BE AMENDED IN THE MANNER SUGGESTED.

CONCERNING THE MATTER OF DOCUMENTATION, ANY CLAIM FROM A NATURAL GUARDIAN FOR A DEATH GRATUITY IN EXCESS OF $1,000 DUE A MINOR CHILD, SHOULD CITE THE STATE STATUTE INVOLVED AND THE FACTS BRINGING PAYMENT TO THE GUARDIAN WITHIN THE PURVIEW OF SUCH STATUTE SHOULD BE FURNISHED IN AFFIDAVIT FORM. ALSO, AS IS ILLUSTRATED BY THE PRESENT CASE, CARE SHOULD BE EXERCISED TO DETERMINE THAT THE PARENT UNDERSTANDS THE REQUIREMENTS OF THE LAW. THE AFFIDAVIT FURNISHED BY MRS. SHARP IN THIS CASE SHOWS THAT THE "MINOR HAS DUE FROM THE ABOVE ESTATE (ESTATE OF HIS FATHER) MONEY OR PERSONAL PROPERTY NOT EXCEEDING $2,000.00.'

WE HAVE NO WAY OF KNOWING WHETHER MRS. SHARP VIEWS THE AMOUNT OF THE DEATH GRATUITY AS A PART OF HER FORMER HUSBAND'S ESTATE AND IT MAY BE THAT HER SON'S SHARE OF THE MONEY AND PERSONAL PROPERTY IN THE ESTATE, PLUS THE $1,174.80 DEATH GRATUITY EXCEEDS $2,000. THEN TOO, THE MINOR MAY HAVE BEEN THE BENEFICIARY OF AN INSURANCE POLICY ISSUED ON THE LIFE OF HIS FATHER, THE PROCEEDS OF WHICH, PLUS THE FOREGOING AMOUNTS, MAY HAVE EXCEEDED BOTH THE $2,000 AND $2,500 LIMITATIONS PRESCRIBED IN THE STATUTE. IT IS THUS POSSIBLE THAT MRS. SHARP CANNOT QUALIFY FOR PAYMENT OF THE DEATH GRATUITY UNDER THE STATUTE INVOLVED.

ACCORDINGLY, PAYMENT OF THE GRATUITY IS NOT AUTHORIZED ON THE PRESENT RECORD. HOWEVER, THE VOUCHER IS RETURNED HEREWITH TO AWAIT THE OUTCOME OF FURTHER DEVELOPMENT ACTION TO DETERMINE WHETHER ALL THE REQUIREMENTS OF SECTION 1430 OF THE CALIFORNIA PROBATE CODE EXIST IN THIS CASE. IF AT THAT TIME FURTHER DOUBT EXISTS AS TO THE ACTION WHICH SHOULD BE TAKEN, THE MATTER SHOULD BE RESUBMITTED HERE FOR FURTHER CONSIDERATION.