B-172540, MAY 28, 1971

B-172540: May 28, 1971

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IF SHE SHOULD THEREAFTER DIE BEFORE PAYMENT IS ACCOMPLISHED THE RIGHT PASSES TO HER ESTATE OR TO HER HEIRS AT LAW AS THE CASE MAY BE. III: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 31. MININGHAM EXECUTED A WILL IN WHICH HE GAVE THE REMAINDER OF HIS ESTATE. AT THE TIME OF HIS DEATH HE WAS MARRIED TO EMILY D. MININGHAM WHO MOVED FROM THE APARTMENT IN WHICH THEY HAD BEEN LIVING WITHIN THREE DAYS FOLLOWING HIS DEATH AND WHOSE PRESENT WHEREABOUTS ARE UNKNOWN. DORIJEAN MININGHAM WERE DISALLOWED BY OUR CLAIMS DIVISION FOR THE REASON THAT IN THE ABSENCE OF A DESIGNATED BENEFICIARY. YOU ASK IN THE EVENT THAT THE WIDOW CANNOT BE LOCATED TO WHOM AND AFTER WHAT LAPSE OF TIME WILL THE UNPAID COMPENSATION BE DISBURSED.

B-172540, MAY 28, 1971

MILITARY PERSONNEL - DEATH - UNPAID COMPENSATION DENYING CLAIM OF SON OF WILLIAM D. MININGHAM JR., DECEASED, FOR UNPAID COMPENSATION DUE HIM AT DATE OF DEATH AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, SINCE THE FATHER'S WIDOW HAS PRIORITY UNDER THE PROVISIONS OF 5 U.S.C. 5582. IF A PERSON ENTITLED TO PAYMENT UNDER 5 U.S.C. 5582(B) SURVIVES THE DECEASED EMPLOYEE, THE RIGHT TO PAYMENT VESTS IN THAT PERSON, IN THIS CASE THE FATHER'S WIDOW, AND IF SHE SHOULD THEREAFTER DIE BEFORE PAYMENT IS ACCOMPLISHED THE RIGHT PASSES TO HER ESTATE OR TO HER HEIRS AT LAW AS THE CASE MAY BE.

TO MR. WILLIAM D. MININGHAM, III:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 31, 1971, REQUESTING ADDITIONAL INFORMATION CONCERNING YOUR CLAIM AS SON OF WILLIAM D. MININGHAM, JR., MD, DECEASED, FOR UNPAID COMPENSATION DUE HIM AT DATE OF DEATH AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, PHILADELPHIA NAVAL SHIPYARD.

THE RECORD SHOWS THAT YOUR MOTHER, MRS. EMMA JEAN MININGHAM, OBTAINED A DIVORCE FROM YOUR FATHER ON SEPTEMBER 16, 1964. ON FEBRUARY 15, 1967, DR. MININGHAM EXECUTED A WILL IN WHICH HE GAVE THE REMAINDER OF HIS ESTATE, AFTER PAYMENT OF HIS DEBTS, TO YOU, YOUR BROTHER GEOFFREY, AND YOUR SISTER, DORIJEAN. AT THE TIME OF HIS DEATH HE WAS MARRIED TO EMILY D. MININGHAM WHO MOVED FROM THE APARTMENT IN WHICH THEY HAD BEEN LIVING WITHIN THREE DAYS FOLLOWING HIS DEATH AND WHOSE PRESENT WHEREABOUTS ARE UNKNOWN.

BY SETTLEMENT DATED JANUARY 26, 1971, YOUR CLAIM AND THAT OF YOUR MOTHER ON BEHALF OF GEOFFREY B. AND DORIJEAN MININGHAM WERE DISALLOWED BY OUR CLAIMS DIVISION FOR THE REASON THAT IN THE ABSENCE OF A DESIGNATED BENEFICIARY, THE UNPAID COMPENSATION MUST BE PAID TO YOUR FATHER'S WIDOW UNDER THE PROVISIONS OF 5 U.S.C. 5582. YOU ASK IN THE EVENT THAT THE WIDOW CANNOT BE LOCATED TO WHOM AND AFTER WHAT LAPSE OF TIME WILL THE UNPAID COMPENSATION BE DISBURSED. YOU ALSO ASK WHETHER THIS MONEY WOULD BE REGARDED AS PART OF YOUR FATHER'S ESTATE OR REGARDED AS MONEY UNDER A SEPARATE CONTRACT SUCH AS AN INSURANCE POLICY.

AS WAS POINTED OUT IN THE SETTLEMENT OF JANUARY 26, 1971, UNPAID COMPENSATION OF DECEASED CIVILIAN EMPLOYEES OF THE GOVERNMENT MUST BE DISTRIBUTED IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5582 WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"(B) IN ORDER TO FACILITATE THE SETTLEMENT OF THE ACCOUNTS OF DECEASED EMPLOYEES, MONEY DUE AN EMPLOYEE AT THE TIME OF HIS DEATH SHALL BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH, IN THE FOLLOWING ORDER OF PRECEDENCE, AND THE PAYMENT BARS RECOVERY BY ANOTHER PERSON OF AMOUNTS PAID:

"FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE EMPLOYEE IN A WRITING RECEIVED IN THE EMPLOYING AGENCY BEFORE HIS DEATH.

"SECOND, IF THERE IS NO DESIGNATED BENEFICIARY, TO THE WIDOW OR WIDOWER OF THE EMPLOYEE.

"THIRD, IF NONE OF THE ABOVE, TO THE CHILD OR CHILDREN OF THE EMPLOYEE AND DESCENDANTS OF DECEASED CHILDREN BY REPRESENTATION.

"FOURTH, IF NONE OF THE ABOVE, TO THE PARENTS OF THE EMPLOYEE OR THE SURVIVOR OF THEM.

"FIFTH, IF NONE OF THE ABOVE, TO THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE EMPLOYEE.

"SIXTH, IF NONE OF THE ABOVE, TO THE PERSON OR PERSONS ENTITLED UNDER THE LAWS OF THE DOMICILE OF THE EMPLOYEE AT THE TIME OF HIS DEATH."

WE HAVE HELD THAT IF A PERSON ENTITLED TO PAYMENT UNDER 5 U.S.C. 5582(B) SURVIVES THE DECEASED EMPLOYEE, THE RIGHT TO PAYMENT VESTS IN THAT PERSON, IN THIS CASE YOUR FATHER'S WIDOW, EMILY, AND IF SHE SHOULD THEREAFTER DIE BEFORE PAYMENT IS ACCOMPLISHED, THE RIGHT PASSES TO HER ESTATE OR TO HER HEIRS AT LAW AS THE CASE MAY BE. IF NO CLAIM IS RECEIVED WITHIN 10 FULL YEARS FROM THE DATE OF ACCRUAL, THE CLAIM WOULD BE FOREVER BARRED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237.

THE PROVISIONS OF 5 U.S.C. 5582 ARE MANDATORY AND UNPAID COMPENSATION OF A DECEASED EMPLOYEE MUST BE PAID IN THE ORDER OF PRECEDENCE SET FORTH THEREIN. THE MONEY IS NOT PAYABLE TO THE REPRESENTATIVE OF THE ESTATE UNLESS THERE ARE NO SURVIVING PERSONS IN THE FIRST FOUR CATEGORIES NAMED IN THE LAW. FURTHERMORE, A DESIGNATION BY WILL DOES NOT MEET THE STATUTORY REQUIREMENT THAT THE DESIGNATION OF THE BENEFICIARY OR BENEFICIARIES BE MADE BY THE EMPLOYEE IN WRITING AND RECEIVED IN THE EMPLOYING AGENCY BEFORE HIS DEATH.

SINCE YOUR FATHER'S WIDOW SURVIVED HIM, THE AMOUNT DUE MUST BE HELD PENDING A CLAIM FROM HER AND THE SETTLEMENT OF JANUARY 26, 1971, DISALLOWING YOUR CLAIM MUST BE SUSTAINED.