[Federal Register Volume 71, Number 8 (Thursday, January 12, 2006)]
[Proposed Rules]
[Pages 1984-1985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-207]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 71, No. 8 / Thursday, January 12, 2006 / 
Proposed Rules  

[[Page 1984]]



FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Part 1651


Death Benefits

AGENCY: Federal Retirement Thrift Investment Board.

ACTION: Proposed rule with request for comments.

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SUMMARY: 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.

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

ADDRESSES: 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.

FOR FURTHER INFORMATION CONTACT: John A. Hahn on (202) 942-1630.

SUPPLEMENTARY INFORMATION: 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dies without having withdrawn his or her TSP account and without having 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 Sec.  
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).

List of Subjects in 5 CFR Part 1651

    Employee benefit plans, Government employees, Pensions, Retirement.

Gary A. Amelio,
Executive Director Federal Retirement Thrift Investment Board.

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

PART 1651--DEATH BENEFITS

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

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

    2. Revise Sec.  1651.5 to read as follows:


1651.5  Spouse of participant.

    (a) For purposes of payment under Sec.  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 Sec.  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

[[Page 1985]]

administrative adjudication determining that the common law marriage is 
valid.

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