B-174783, FEB 7, 1972, 51 COMP GEN 483

B-174783: Feb 7, 1972

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STATE LAW A HUSBAND WHO ENTERED A PLEA OF GUILTY TO FIRST DEGREE MANSLAUGHTER IN CONNECTION WITH THE DEATH OF HIS WIFE - A FORMER FEDERAL EMPLOYEE IN THE STATE OF OHIO - IS NOT ENTITLED TO THE UNPAID COMPENSATION DUE THE DECEDENT. IS THAT PAYMENT WILL NOT BE MADE TO A PERSON OTHERWISE ENTITLED IF SUCH PERSON PARTICIPATED IN THE DEATH OF THE INDIVIDUAL IN WHOSE ESTATE HE SEEKS TO BENEFIT IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT THERE WAS NO FELONIOUS INTENT ON HIS PART. PAYMENT MAY NOT BE MADE TO THE ESTATE OF THE DECEDENT AS THERE IS A SURVIVING MINOR CHILD WHO IS HIGHER IN THE ORDER OF PRECEDENCE. 1972: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 5. WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR CLAIMS DIVISION CONCERNING THE CLAIM BY MR.

B-174783, FEB 7, 1972, 51 COMP GEN 483

DECEDENTS' ESTATES - PERSON CAUSING DEATH OF DECEDENT - FEDERAL V. STATE LAW A HUSBAND WHO ENTERED A PLEA OF GUILTY TO FIRST DEGREE MANSLAUGHTER IN CONNECTION WITH THE DEATH OF HIS WIFE - A FORMER FEDERAL EMPLOYEE IN THE STATE OF OHIO - IS NOT ENTITLED TO THE UNPAID COMPENSATION DUE THE DECEDENT. THE STATUTE AND CASE LAW OF THE STATE WHICH PERMIT PAYMENT TO THE HUSBAND WOULD PREVAIL ONLY IN THE ABSENCE OF A FEDERAL STATUTE OR POLICY. HOWEVER, THE POLICY GOVERNING PAYMENT PURSUANT TO 5 U.S.C. 5582, PRESCRIBING THE ORDER OF PRECEDENCE FOR PAYMENT OF MONEY DUE A DECEASED EMPLOYEE, IS THAT PAYMENT WILL NOT BE MADE TO A PERSON OTHERWISE ENTITLED IF SUCH PERSON PARTICIPATED IN THE DEATH OF THE INDIVIDUAL IN WHOSE ESTATE HE SEEKS TO BENEFIT IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT THERE WAS NO FELONIOUS INTENT ON HIS PART. FURTHERMORE, PAYMENT MAY NOT BE MADE TO THE ESTATE OF THE DECEDENT AS THERE IS A SURVIVING MINOR CHILD WHO IS HIGHER IN THE ORDER OF PRECEDENCE.

TO RUSSELL T. ADRINE, FEBRUARY 7, 1972:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 5, 1971, WITH ENCLOSURES, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR CLAIMS DIVISION CONCERNING THE CLAIM BY MR. LARRY J. ENGLISH, FOR THE UNPAID COMPENSATION DUE MRS. JANICE L. ENGLISH, DECEASED FORMER EMPLOYEE OF THE DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, CLEVELAND, OHIO.

THE RECORD SHOWS THAT MR. ENGLISH, THE DECEDENT'S HUSBAND, ENTERED A PLEA OF GUILTY TO FIRST DEGREE MANSLAUGHTER IN CONNECTION WITH THE DEATH OF HIS WIFE, MRS. JANICE L. ENGLISH. BY SETTLEMENT DATED SEPTEMBER 16, 1971, OUR CLAIMS DIVISION DISALLOWED A CLAIM YOU FILED IN BEHALF OF MR. ENGLISH FOR THE UNPAID COMPENSATION DUE HIS WIFE STATING THAT:

*** IT UNIFORMLY HAS BEEN HELD THAT IT IS AGAINST PUBLIC POLICY TO PERMIT THE PAYMENT BY THE GOVERNMENT OF ARREARS OF PAY, COMPENSATION OR OTHER BENEFITS TO AN HEIR OR BENEFICIARY WHO FELONIOUSLY KILLS THE PERSON UPON WHOSE DEATH SUCH PAYMENTS BECOME DUE.

YOU HAVE SUBMITTED FOR EVIDENCE A COPY OF WADSWORTH V. SIEK, 23 OHIO MISC. 112, 254 NE2D 738 (1970), WHEREIN IT WAS HELD THAT ONE CONVICTED OF MANSLAUGHTER MAY SHARE IN THE ESTATE OF THE PERSON KILLED. IT IS YOUR POSITION THAT LOCAL LAW IS APPLICABLE AND THAT ON THE STRENGTH OF THE ABOVE-CITED CASE, MR. ENGLISH IS ENTITLED TO THOSE FUNDS WHICH WERE PAYABLE TO HIS WIFE AT THE TIME OF HER DEATH.

IT HAS LONG BEEN HELD THAT SUCH MATTERS AS THE RIGHTS OF SUCCESSION TO PROPERTY AND THE DISTRIBUTION OF AN ESTATE ARE TO BE DETERMINED BY LOCAL LAW UNLESS THERE EXISTS AN OVERRIDING FEDERAL STATUTE OR POLICY. LYETH V. HOEY, 305 U.S. 188, 193 (1938); AND HINES V. DAVIDOWITZ, 312 U.S. 52, 53 (1941). HENCE, THE STATUTE AND CASE LAW OF THE STATE OF OHIO, IN THE ABSENCE OF AN CONTRAVENING FEDERAL LAW OR POLICY, WOULD APPEAR TO OPERATE TO ENTITLE MR. ENGLISH TO SHARE IN THE ESTATE OF HIS DECEASED SPOUSE. SECTION 2105.19, REVISED CODE (OHIO); AND WADSWORTH V. SIEK, SUPRA.

IT IS TO BE NOTED, HOWEVER, THAT UNPAID COMPENSATION DUE AN EMPLOYEE AT TIME OF DEATH IS PAYABLE UNDER 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 SO 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.

EXAMINATION OF THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 3, 1950, 64 STAT. 395, NOW CODIFIED AS 5 U.S.C. 5582, REVEALS THAT SUCH STATUTE WAS PROMULGATED TO AVOID THE INCONVENIENCE, DELAYS, AND ECONOMIC HARDSHIP FREQUENTLY ATTENDANT WHEN THE ASSETS OF A DECEDENT'S ESTATE ARE DISTRIBUTED IN ACCORDANCE WITH THE LAWS OF HIS DOMICILE. SEE H. REPT. NO. 2543, 81ST CONG., 2D SESS. IN VIEW OF THIS, UNPAID COMPENSATION DUE A DECEASED FEDERAL EMPLOYEE IS TO BE PAID IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5582 AND DOES NOT ORDINARILY BECOME A PART OF HIS ESTATE SUBJECT TO DISTRIBUTION PURSUANT TO A WILL OR THE STATUTES OF DESCENT AND DISTRIBUTION OF THE STATE OF HIS DOMICILE. IT IS ONLY WHEN THERE IS NO ELIGIBLE PERSON IN THE FIRST FOUR CLASSES IN THE ORDER OF PRECEDENCE IN THE STATUTE THAT THE UNPAID COMPENSATION OF A DECEASED FEDERAL EMPLOYEE IS PAYABLE IN ACCORDANCE WITH STATE LAW. SEE METROPOLITAN LIFE INSURANCE COMPANY V. THOMPSON, 368 F.2D 791 (1966), CERTIORARI DENIED 388 U.S. 914.

IN DECIDING CLAIMS UNDER 5 U.S.C. 5582, IT HAS LONG BEEN OUR POLICY THAT PAYMENT WILL NOT BE MADE TO THE PERSON OTHERWISE ENTITLED IF SUCH PERSON HAS PARTICIPATED IN THE DEATH OF THE INDIVIDUAL IN WHOSE ESTATE HE SEEKS TO BENEFIT IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT THERE WAS NO FELONIOUS INTENT ON HIS PART. IN THE INSTANT CASE THE RECORD INDICATES THAT MR. ENGLISH IS NOT ELIGIBLE TO RECEIVE PAYMENT AS THE SURVIVING SPOUSE IN VIEW OF HIS PLEA OF FIRST DEGREE MANSLAUGHTER. ALSO, PAYMENT MAY NOT BE PAYABLE TO THE ESTATE SINCE WE HAVE BEEN INFORMED THAT THERE IS A SURVIVING MINOR CHILD WHO IS HIGHER IN THE ORDER OF PRECEDENCE. SEE B- 149373, FEBRUARY 8, 1967, COPY ENCLOSED.

ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION DENYING MR. ENGLISH ENTITLEMENT TO THE UNPAID COMPENSATION DUE HIS DECEASED WIFE IS AFFIRMED.